2018 Readers' Choice for Best Law Firm
Fitzpatrick, Zimmerman & Rose Co., LPA is the recipient of the 2018 Times Reporter Readers' Choice Award for Best Law Firm, once again. We want to thank our clients for their continued support of our Firm.
2017 Readers' Choice for Best Law Firm
Fitzpatrick, Zimmerman & Rose Co., LPA is the proud recipient of the 2017 Times Reporter Readers' Choice Award for Best Law Firm. We want to thank our Clients for their continued support of our Firm.
Effective 9-28-2016, the small claims jurisdiction in civil actions increased from a maximum allowable amount of $3,000.00 to $6,000.00 in accordance with O.R.C. 1925.02.
If you have any questions, feel free to contact Attorney Steve Anderson at 330-364-1614.
Changes to Ohio's Foreclosure Law
Ohio’s foreclosure law has not materially changed for many decades. As of September 28, 2016, sweeping foreclosure legislation goes into effect through the passage of H.B. 390. One significant change to foreclosure laws is the criminalizing of an owner/debtor vandalizing his or her own property after the foreclosure is filed and the owner/debtor has been served with the Summons and Complaint. Prior to the passage of H.B. 390, there was no sanction for the owner destroying his or her own property due to the foreclosure. Section 2308.04 now provides that a person is guilty of criminal mischief, a fourth degree misdemeanor, if the person knowingly and with purpose to diminish the value or enjoyment of residential real property, moves, defaces, damages, destroys or otherwise tampers with the person’s own residential real property.
This is a summary of one portion of H.B. 390 and is not to be construed as legal advice. If you would like to know more about the changes to foreclosure proceedings as a result of the passage of H.B. 390, contact the Law Office of Fitzpatrick, Zimmerman & Rose Co., L.P.A.
Make Sure You Register to Vote!
Reckless Driving in Ohio is Expensive
The annual report from the Insurance Institute shows that getting a serious traffic ticket is very expensive, but that Ohio drivers do much better than others nationally.
When renewing insurance after getting a ticket in one of three areas of concern – drunk driving, reckless driving, and excessive speed (more than 31 miles per hour over the speed limit) – the average Ohio driver saw a 40 percent increase in his or her insurance rates. The increase was about the same for each of these three violations. The national average is more than twice as high - a 90 percent increase!
Attorneys Paul Hervey, Jilliann Armstrong, and Steven Anderson have a combined 50 years of experience representing parties in these types of cases.
Tuscarawas County Lot Sizes Change August 1, 2016
Based upon new regulations from the Ohio Department of Health, the Tuscarawas County Commissioner recently increased minimum lot sizes in areas without sewer systems by over 50 percent. The county health department has to comply with these regulations to avoid having problems with leech fields in septic systems. The regulations take effect August 1, 2016.
Attorneys Michael Warkall, Jilliann Armstrong, and D. Brad Zimmerman are available to help landowners with lot splits and other real estate issues.
OSBA Recommendations for Ohio Supreme Court Candidates
The Ohio State Bar Association announced its recommendations concerning this year’s candidates for the Ohio Supreme Court. The seven-member court has two open seats this fall due to mandatory retirement rules. Each race has one “highly recommended” candidate. All of the candidates, save one, already serve on the 12-district Court of Appeals.
In one race, Judge Cynthia Rice has been “highly recommended” while her opponent, Judge Patrick DeWine, is “not recommended”.
In the other race, Judge Patrick Fischer has been “highly recommended” while his primary opponent, Judge Colleen O’Toole, is “not recommended.” The other candidate, Judge John O’Donnell, is “recommended.”
Chief Justice Maureen O’Connor is running unopposed for reelection and is “highly recommended.”
Candidates can be rated “superior”, “highly recommended”, “recommended”, or “not recommended”. The criteria and rating process is available at ohiobar.org. Candidates appear in partisan primaries next month, but appear unaffiliated in the general election.
Rainbow Connection Telethon
The annual Rainbow Connection Telethon will be held on Sunday, March 5, 2017, on TV 2 from 10 a.m. until 7 p.m., 2013. As he has in many years past, our own Brad Zimmerman will be one of the Co-Hosts for the event. Rainbow Connection donations benefit disadvantaged and disabled county residents. The donations are used to buy medical supplies and equipment and assist in the payment of medical bills, prescriptions and technological assistance.
Brad has been involved with the Rainbow Connection since 1978 and is a three time past president and current Board member.
FZR Mourns Death of Founder
The FZR family is sad to report the passing of the firm’s co-founder, Frank Fitzpatrick. A life-long New Philadelphia resident, Frank returned to the community after school in 1951 and opened Fitzpatrick and Zimmerman with his childhood friend, Donald Zimmerman. In addition to 50 years of serving the legal needs of area residents, Frank also served as a volunteer with many local organizations and as city solicitor.
Frank is survived by his wife Pat and three children. Calling hours are Thursday from 5-8 p.m. at Linn-Hert-Geib Funeral Home in New Philadelphia. A Mass of Christian Burial will be held Friday at 10:30 a.m. at Sacred Heart Church.
Ohio Supreme Court Gives Some Guidance to Estate Planners
The Ohio Supreme Court recently clarified the rules of qualifying for Medicaid assistance for nursing home care. This issue is frequently dealt with by elderly couples where one spouse is heading to a nursing home and the other spouse stays at home. Strategic planning is allowed to permit the “at home” spouse to retain a larger percentage of the couple’s assets for his or her own care or to pass on to children.
For more information, please see Estate of Atkinson v. Ohio Dept. of Job & Family Servs., Slip Opinion No. 2015-Ohio-1773.
Attorneys Michael Warkall, Frank Rose Jr., and D. Brad Zimmerman all advise clients on a regular basis on such estate planning issues.
New Rules Enacted for Guardians
The Ohio Supreme Court has enacted new rules intended to further protect incompetent adults monitored by the probate courts.
Ohio’s probate courts are responsible for deciding whether an adult is incompetent to care for himself or herself. When that is the case, the court appoints a guardian to make decisions such as where the ward should live and how to pay his or her bills. Many times, the guardian is a family member who is not well-versed in the technical aspects of guardianship, such as how to appropriately spend the ward’s money and document the spending for court review.
The Supreme Court has now ordered local probate courts to monitor guardians more closely. Specifically, guardians must take annual educational courses about their roles and regularly check up on their wards.
Attorneys Michael Warkall, D. Brad Zimmerman, and Frank Rose, Jr. regularly advise clients on guardianship, estate planning, and elder law issues. They are available for consultations on the new guardianship rules and other related matters.
Paul Hervey Named to OSBA Board
Summit County Juvenile Court Judge Linda Tucci Teodosio and attorney Paul B. Hervey of Canton have been elected to serve on the Board of Governors of the Ohio State Bar Association. See full article
Supreme Court Gay Marriage Ruling Leaves Some Questions Unanswered
The United States Supreme Court ruled on June 26 that there is a federal constitutional right to marriage enjoyed by both heterosexuals and homosexuals. Amid all of the publicity and arguments over the decision, many questions will still have to be sorted out by families, such as estate planning, adoptions, and pre-nuptial agreements. Adoptions by same-sex couples will probably be the biggest difficulty to sort out in coming years, as local courts may interpret the Supreme Court’s decision narrowly or widely.
Attorneys D. Brad Zimmerman, Michael Warkall, Paul Hervey, and Jilliann Daisher are available for consultation on these wide-ranging issues and others.
Jean Johnson Retires After 60 Years' Service
FZR hosted a retirement dinner for Jean Johnson, Office Administrator, on Sunday, June 7th at the Lighthouse Bistro. Jean started with FZR right out of high school and worked for the founders, Francis Fitzpatrick and Donald Zimmerman. Jean has seen a lot of changes in her 60 years and is ready to begin a new chapter in her life. Jean will be greatly missed! We wish Jean, and her husband John, all the best.
Ohio Adoption Law Changes Now in Effect
New legislation in Columbus has made some important changes to adoption law in Ohio. Putative (alleged) fathers now have less time to register to protect their parental rights. There is now a process for putting father’s on pre-birth notice of a planned adoption. The tax credit for adoptive parents has now increased. Interestingly, pre-approved adoptive parents can now advertise this information.
Attorney D. Brad Zimmerman has helped many families with private adoptions and is available for consultation on this issue.
Geological Survey May Impact Future of Fracking/Injection Wells
Today’s release of data from the US Geological Survey may cause further changes in injection wells and fracking that impact local landowners.
The survey finds that there is a direct correlation between the use of injection wells and increased earthquake activity. Oil and gas drillers use inject wells to dispose of the millions of gallons of waste water that are used in the fracking process that cannot be put into federally-protected waterways. Interestingly, the survey finds no such link between the actual fracking and earthquakes – just the disposal of wastewater.
Earthquakes can be felt by people nearby at 3.0 on the Richter scale. These types of earthquakes – previously unheard of in areas with fracking – are occurring much more frequently. Structural damage can be caused starting at 4.0, which is 10 times more powerful. By comparison, the California earthquakes of the 1990s were at 6.5 on the Richter scale – 5,000 times more powerful than a 3.0 earthquake.
Jilliann Daisher and Brad Zimmerman assist clients with oil and gas exploration issues, including leases which protect homeowners’ properties.
The Andersonville Trial
A performance of “The Andersonville Trial” will be held on Friday, May 8, at 7 p.m. at Akron’s Art Museum. It is presented by The Courthouse Players, a group of a dozen Stark County attorneys – judges, prosecutors, and others – whom have been practicing and performing this and one other play – “Twelve Angry Men” – for the past several years.
“The Andersonville Trial” focuses on the only war crimes trial arising out of the Civil War and concerns the treatment of Northern POWs. Admission is free.
Ohio Supreme Court Decision Provides More Protections for Juveniles
This week’s decision by the Ohio Supreme Court enhances protections for juveniles facing what one would normally consider “criminal” trouble.
The case at hand involved the “enhancement” of an adult OVI (drunk driving) conviction based upon the defendant’s prior conviction as a juvenile. The defendant was convicted in 1992 as a juvenile of drunk driving. (Juveniles do not have to be “drunk”, but merely have to have some alcohol in their system.) He did not have an attorney and he was not told that his conviction could come back to haunt him later. Twenty years later, that “conviction” was used to “enhance” the defendant’s sentence and send him to state prison for a new OVI conviction.
In Ohio, many crimes change from misdemeanors to felonies (or have harsher sentences) based upon a prior conviction. However, these prior convictions can only be used if the defendant was represented by an attorney or knew that he or she was waiving his right to an attorney. In the past, this was not always done in Juvenile Court, where the parents are an integral part of the process and the focus is on helping the child instead of punishing an adult.
The Ohio Supreme Court has now held that the same rules apply for children and adults. Children do not have all of the same rights as adult defendants, but in this narrow case, the court ruled that they should enjoy the same protection.
Attorneys Paul Hervey, Steven Anderson, and Jilliann Daisher represent both defendants in the adult and juvenile justice system and villages as prosecutors.
State v. Bode, Slip Opinion No. 2015-Ohio-1519.
Matt McLeese Mission Run set for March 7
FZR is a proud supporter of the Matt McLeese Mission Run. This year’s race is scheduled for Saturday, March 7, at 8:30 a.m. at Perry High School. Matt was a beloved teacher at Perry Local Schools when he tragically lost his life in a car accident in 2013. Matt had taken a leave of absence to do missionary work in Tanzania before the accident. He was planning to make a permanent move to mission work when he passed away. In his memory, the Perry community has joined forces with Subway to create this 5-K race. There is also an one-mile walk. For more information, go to McLeeseMissionRun.org or contact Theresa Echelberry at 330-546-2234.
Ohio Supreme Court Shuts Down Early Release from Prison for Some Offenders
The Ohio Supreme Court ruled unanimously today that certain convicted felons can never apply to a judge for early release from prison, even if they have already served the mandatory minimum sentence.
The case involved a large-scale drug trafficker. He was sentenced to four years in prison. For his crime, a mandatory prison sentence of two to eight years was required. After two years passed, he applied for early release from prison. The judge wanted to grant the release to put the defendant on probation, put him a treatment facility, and supervise him after his release. The prosecutor appealed. Eventually, the Supreme Court ruled that when a mandatory prison sentence is given, the judge cannot release the defendant early to probation, even if the defendant has already served the mandatory minimum sentence.
This is a sentencing tool often used by judges to give a defendant a chance to show his or her good behavior in prison while still giving a defendant a huge incentive to behave both inside and outside of prison. Instead, judges will now have to choose between giving lighter sentences or not. Either way, they will lose local control over the defendant upon his release from prison. Instead, the defendant will be on state parole, which cannot be revoked by a local judge.
Attorney Paul Hervey handles criminal defense matters for the office. More information about this case can be found on the Supreme Court website at State v. Ware, 2014-Ohio-5201.
FZR Appeals Mineral Rights Decision to Ohio Supreme Court
FZR has appealed a recent decision on mineral rights to the Ohio Supreme Court.
The Fifth District Court of Appeals ruled in October that mineral rights automatically were transferred to surface owners under a 1989 Ohio law that has since been repealed. This decision is in line with a recent decision from the Seventh District Court of Appeals but contradicts the opinion of a dissenting judge from that court. The Ohio Supreme Court is already looking at this issue in other cases.
For more information, please check the Ohio Supreme Court online docket at: http://supremecourt.ohio.gov/Clerk/ecms/resultsbycasenumber.asp?type=3&year=2014&number=2051&myPage=searchbypartyname.asp
This is the third case pending with the Ohio Supreme Court on these issues for attorneys Paul Hervey and Jilliann Daisher. Along with Brad Zimmerman, they are available for consultation on mineral rights issues.
Appellate Court Split on Mineral Rights Interpretation
The Seventh District Court of Appeals recently had a split decision on whether to use the current Ohio Dormant Mineral Rights Act or the 1989 version. It is the first split of opinion in the state on a matter of importance to many in the eastern Ohio oil and gas region.
Presiding Judge Mary DeGenaro issued an opinion that contrasts with her fellow Seventh District jurists. Judge DeGenaro wrote that the 1989 Act did not operate automatically and did not vest abandon mineral rights with the surface owner. Instead, she felt that the surface owner must use the current law’s procedures passed in 2006.
The case was decided on other grounds. All three judges agreed that a lease during the 1970s qualified as a “title transaction” and defeated the surface owners’ claims. The case has been appealed to the Ohio Supreme Court, where it joins several other cases awaiting guidance from Columbus on how to interpret both versions of the ODMA and use them in present-day litigation.
The opinions of the majority and Judge DeGenaro can be found here: http://www.supremecourt.ohio.gov/rod/docs/pdf/7/2014/2014-ohio-3792.pdf
Attorneys Paul Hervey and Jilliann Armstrong currently have two of the cases pending before the Ohio Supreme Court. Along with Attorney Brad Zimmerman, they are available for consultation on both negotiations and legal issues regarding mineral rights.
FZR Attorney Named to Board of Governors
FZR attorney Paul Hervey was elected today to the Ohio State Bar Association Board of Governors. Paul will be representing District 14, which comprises Tuscarawas, Stark, and Carroll counties. One of the primary responsibilities of the Board of Governors is to help guide the legislative agenda of the OSBA, as determined by its members. The Ohio Legislature takes the input of the OSBA on a regular basis as it crafts legislation that is of concern to every Ohioan.
Paul is the past president of the Tuscarawas County Bar Association and is currently on the Finance Committee of the Stark County Bar Association. Paul's three-year term will commence in July of 2015. Paul will succeed Attorney William Emley of Bolivar as district representative.
Supreme Court Decision Affects Estate Planning
Families making estate planning decisions should pay attention to a recent ruling from the United States Supreme Court on inherited individual retirement accounts (IRAs).
The Supreme Court case dealt with a debtor in bankruptcy court. The creditors wanted to take the IRA he inherited from his parents to pay on his debts. Because the IRA was inherited by the debtor – and could be liquidated without penalty at any time – the Supreme Court decided that it was not protected by federal law from liquidation in bankruptcy proceedings.
Parents looking to give away IRA assets upon their passing should keep this in mind if family members have financial difficulties. The issue is very complex, as certain states – like Ohio – have additional protections for the IRAs that federal bankruptcy law does not supply.
Attorneys Michael Warkall, D. Brad Zimmerman, and Frank Rose Jr. can assist you in reviewing your estate planning needs.
Update on Ohio Supreme Court Oral Argument
On August 20th FZR attorneys Paul Hervey and Jilliann Daisher attended oral argument in the Ohio Supreme Court in the case of Dodd v. Croskey, Case No. 2013-1730. The case involves interpretation of the Ohio Dormant Mineral Rights Act - excerpts are included in this video provided by NBC News - http://www.nbc4i.com/video?clipId=10494242&autostart=true
FZR to argue mineral rights case August 20 in Supreme Court
The Ohio Supreme Court has scheduled oral arguments for two mineral rights cases for August 20, 2014. FZR attorneys Paul Hervey and Jilliann Daisher will be arguing Dodd v. Croskey, Case No. 2013-1730, at approximately 9:30 a.m. This case involves interpretation of the Ohio Dormant Mineral Rights Act.
To find out more details about the case (including all filed materials) or watch the oral arguments live, go to supremecourt.ohio.gov.
FZR email working again
FZR email is now working again. However, any emails sent between July 1 and 7 were rejected and sent back to the sender. Please re-email FZR attorneys anything sent during those days. We apologize for the inconvenience.
What is a Copier?
Court of Appeals Helps Parents in Child Discipline Cases
A recent ruling by an appeals court highlights one of the favorite concerns of good parents everywhere – will I be prosecuted for physically disciplining my child?
Domestic violence law has simple elements – the prosecutor must prove an assault (physical harm) and a family relationship (such as parent and child). Previously, many courts have ruled that a parent on trial must prove that the assault was appropriate parental discipline. This switches the ordinary burden in a criminal prosecution.
This new court decision switches the burden to the prosecution. The prosecutor must prove that the discipline was improper and unreasonable. In the case at hand, one can see both sides of the story. The 12-year-old victim had been fighting with his younger siblings and had been diagnosed with behavioral problems. The defendant-father had been drinking and had a split custody arrangement with the child’s mother. The prosecution’s theory was that the father was drunk and overreacted; the defense theory was that the father was reasonable in his discipline. (See State v. Rosa, 2013-Ohio-5867.) The jury was told that the father bore the burden of proving that his discipline was reasonable and proper.
If adopted statewide, this is a major tactical change for trials of these cases. The parent no longer has the burden of proving that he or she was appropriate; the prosecution must prove that the parent was inappropriate.
Parents are rarely charged with domestic violence against their own children (and nothing more serious). Sometimes it is well deserved. Many times, it is a child leaving out some of his own behavior or an ex-spouse seeking a tactical advantage in a child custody proceeding.
Attorney Paul Hervey handles domestic and criminal matters for the firm and has 20 years of experience trying these types of cases.
FZR Wins Protection for Father in Shared Parenting Case
A unanimous panel of the Fifth District Court of Appeals ruled this week that a parent is entitled to receive child support, even if he does not have the majority of the parenting time with the children.
The case, McCracken v. McCracken, 2014-Ohio-1411, dealt with divorced parents whom had always worked opposite shifts and always shared responsibility for their children. The father worked a night shift so that he could babysit the children during the day. As a result, the mother had a higher-paying day job. When the parties divorced, the court recognized that both parents spent a considerable amount of time with the children, even though they spent most nights at their mother’s house. The court found that mother would be responsible for child support because of her higher income.
The Court of Appeals agreed, giving the trial court room to decide matters on a case-by-case basis. The Court of Appeals permitted the parent with more parenting time to still be required to pay child support because it is “best” for the children. To rule otherwise would require the children to live in relative poverty with one of the parents despite their equal involvement in the children’s lives.
Attorney Paul Hervey handles all of the firm’s domestic relations matters. More information can be found at www.fifthdist.org/March312014/mccracken.pdf
FZR Wins Appeal to Protect Clients' Right to Fair Notice
The Fifth District Court of Appeals recently granted the claims of vendees to a land contract and reversed the decision of Guernsey County Common Pleas Court in Chaffin v. Shrontz, 2014-Ohio-1495. The issues of the case involve trying to gain oil and gas rights without the agreement of a party to a land contract and without properly notifying that party of the claim.
The case makes it very clear how important it is that parties do NOT ignore civil filings that they receive in the mail. Waiting until the last minute can cause serious damage to one’s legal
rights. In this case, FZR was able to help the clients reverse an adverse decision on those issues.
Attorney Paul Hervey has handled over 30 cases in the Court of Appeals and is available for consultation on any appellate issue.
For more information, see www.fifthdist.org/April72014/chaffin.pdf
Supreme Court Accepts Review of Mineral Rights Case
The Ohio Supreme Court has granted the request of FZR clients to review an appellate decision on abandoned mineral rights that may impact the entire state. At issue is interpretation of a section of the Ohio Dormant Mineral Rights Act (ODMA). The Seventh District Court of Appeals made several rulings in the fall of 2013 in this case to provide guidance to the large appellate district. Most of the rulings favored FZR’s clients. However, the Court of Appeals ruled adversely to the clients on one issue concerning the timing of recorded documents versus a notice of abandonment. It is this issue that the Supreme Court has accepted for review.
The parties will now brief these issues and appear before the Ohio Supreme Court later this year. All of the case information can be found on the Ohio Supreme Court’s website, supremecourt.ohio.gov, under case 13-1730. Oral arguments will be broadcast live on cable and on the Supreme Court’s website.
For more information, please contact attorneys Jilliann Daisher or Paul Hervey.
Changes in Ohio's Dormant Mineral Rights Act
Ohio’s Dormant Mineral Rights Act (ODMA) is changing effective January 31. Recent legislation made some minor recording changes to the statute. The interpretation of the statute in general is of great dispute in eastern Ohio as the oil and gas play increases. Surface and mineral rights owners are encouraged to consult legal counsel if there are any questions about title to the mineral rights. Attorneys Jilliann Daisher and Brad Zimmerman concentrate on ODMA issues for FZR.
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2013 Times Reporter's Reader's Choice Best Law Firm
Fitzpatrick, Zimmerman & Rose is proud to announce that it has been selected as the 2013 Times Reporter's Readers' Choice Best Law Firm! We would like to thank those who voted for us and we feel honored to have received this award.
This is the third consecutive year that Fitzpatrick, Zimmerman & Rose has been recognized in The Times Reporter’s Readers’ Choice awards. In 2012, Attorneys Michael Warkall and Greg Miller were both chosen as two of the top three “Favorite Attorneys” in The Times Reporter’s poll of readers. Attorney Brad Zimmerman was acknowledged as a top vote getter in 2011.
High School Athletic Transfer Rules Changed
When children change high schools, parents are often concerned about the impact on extracurricular activities. The Ohio High School Athletic Association has strict rules about transfers that sometimes deny students the ability to participate in a sport for some time. Recently, the OHSAA announced that 70 percent of waiver requests are rejected. http://www.timesreporter.com/article/20131223/NEWS/131229828
Attorney Steven Anderson has handled many OHSAA appeals successfully for clients and can be contacted for further information at email@example.com or 330-364-1614.
Ohio Dormant Mineral Rights Act Decision
An eastern Ohio court judge has ruled against the use of the repealed version of the Ohio Dormant Minerals Act (ODMA). In a 20-page opinion filed this week in Carroll County Common Pleas Court in Dahlgren v. Brown Farm Properties, LLC, a visiting judge explained why he believes that the 2006 ODMA - and not the repealed 1989 version - should be used to determine the ownership of mineral rights. This is a hotly contested issue in Ohio as millions of dollars is being handed out to the owners of mineral rights in the current fracking boom. Surface owners – some of whom only recently bought their properties - have been claiming that the 1989 law applied and automatically gave the preceeding surface owners the mineral rights 20 years ago. Mineral owners are claiming that the 1989 law cannot be used in new lawsuits.
Trial courts are split on this issue, which will undoubtedly have to be resolved by appellate courts and the Ohio Supreme Court over the coming years. Attorneys Jilliann Daisher and Paul Hervey of FZR are available to advise clients on these and other mineral rights issues.
Motorist Beware of Hospitals Declining Insurance
There is a growing practice in other parts of the country for hospitals to refuse to submit medical bills to insurance if you are involved in a car accident. This is the hospitals’ way of avoiding the promised discounts they have agreed upon with your health insurance company. Ohio patients have the right to insist that the hospital bill the insurance company before sending the patient the bill for any balance.
Attorneys Paul Hervey and Steven Anderson are available to help injured drivers and passengers with these and other issues.
Protection of Child Rapist Shows Problems with Ohio's "Tort Reform" Law
A recent decision out of Delaware County shows the problems with the “tort reform” laws enacted in the past 15 years in Ohio.
JS was a teenager member of a church. The church employed a pastor whom had a lengthy history of sexual misconduct complaints. The church ignored the complaints and allowed the pastor to be alone with teens and young women. JS alleged that the pastor raped her during a private counseling session. The pastor is now serving eight years in prison and has admitted his liability.
JS sued the church for its conduct in keeping the pastor on staff, not supervising him, and in fact promoting him and letting him work at a satellite campus. The jury agreed with JS and awarded her over $3.5 million in damages from the church. However, the trial judge felt compelled to reduce the jury’s verdict by over 75% due to “tort reform” which limits non-economic damages. The state legislature limited the recovery plaintiffs could make for non-economic damages, such as pain and suffering. However, the legislature did not limit the actual pain and suffering. This child was raped by a known problem employee, but the employer had very little incentive to properly monitor its employees that came in contact with children. Quite often, criminal prosecution does not get to the root of the problem of encouraging prevention of crime. Punitive damages against the defendant are usually uncollectible. The criminal is in prison, but his employer had a much lower incentive to monitor his behavior because it is protected by “tort reform”.
FZR is proud to represent victims of the misconduct of others. Attorneys Paul Hervey and Steven Anderson have experience both representing the rights of the injured and those wrongfully accused of misconduct.
Drivers Should be Aware of Black Boxes
A recent ruling from the Third District Court of Appeals touches upon the importance of driver safety – and the ever-watchful eye of Big Brother.
A Michigan teenager was driving on a rural highway in western Ohio when a Michigan truck driver turned onto the highway in front of her. The teen’s vehicle slammed into the rear of the truck, killing the teen and injuring three passengers. The truck driver was cited for the traffic violation and therefore for vehicular manslaughter. At trial, it was revealed that Karmann’s vehicle had an “event data recorder” – commonly known as a “black box”. The black box revealed that Karmann was driving at 95 miles an hour. The truck driver was convicted of both charges. The Court of Appeals reversed the decision, stating that the trial court must first consider whether the teenager was driving reasonably and therefore had the right of way. If she was not driving reasonably, she had no right to expect the trucker to yield and the trucker was therefore not criminally liable.
Not only is this a warning to teenage drivers everywhere about the dangers of speed (and a lesson in physics), but all drivers should remember that most vehicles now come with “black boxes”. In any serious case, they should expect information such as speed, breaking, and seat belt use to be checked by the insurance companies.
Attorneys Paul Hervey and Steven Anderson have tried many similar cases for accident victims across Ohio and are available for consultation.
For more information on the above case, see State v. Godfrey, 2013-Ohio-3396.
Hervey Named Treasurer
Paul Hervey has been named the treasurer of the Canton Jewish Community Federation. The CJCF is responsible for raising funds and distributing them to local, regional, national, and international charitable organizations benefiting the Jewish community. The CJCF is also responsible for administering the community's endowment funds for the benefit of the Stark County Jewish community.
Paul and all of the attorneys at FZR have volunteered in the community for various religious, social charitable, and civic endeavors.
Firm Mourns Passing of Founder and Community Leader Donald Zimmerman
FZR mourns the passing of firm co-founder, partner, community leader, and friend Donald W. Zimmerman. Don passed away April 14 at age 87 after a long struggle with Parkinson’s disease. Don was a life-long New Philadelphia resident.
Along with Francis Fitzpatrick, Don founded Fitzpatrick and Zimmerman in 1951. Over the years, Don was an example of professional and community leadership. Amongst his accomplishments, Don co-founded the Rainbow Connection to help disadvantaged and disabled members of the Tuscarawas County community. Don was also chairman of the board at both Union Hospital and Kent State University’s Tuscarawas Branch. Along with Francis Fitzpatrick, Don was honored in 2000 for his community service with a Hall of Fame award from the Tuscarawas County Chamber of Commerce. Among his many legal accomplishments, Don was particularly proud of his help to local government agencies in establishing water and sewer districts in both Carroll and Tuscarawas counties. He was also a licensed pilot, veteran of the Army Air Corps, a sports official, and avid auto collector.
Don worked with the firm for over 50 years. He was preceded in death by his wife, Mary. Survivors include daughter Amy (Gene Reiser), his son D. Brad (Zoe) Zimmerman (with whom Don practiced law for 30 years), five grandchildren, two great-grandchildren, and eight siblings.
Forty Years for Rainbow Connection
The 40th annual Rainbow Connection Telethon was held on Sunday, March 3, 2013. As he has in many years past, our own Brad Zimmerman was one of the Co-Hosts for the event, which raised a new record of over $207,000 for local children
and adults in need of help. Rainbow Connection donations benefit disadvantaged and disabled county residents. The donations are used to buy medical supplies and equipment and assist in the payment of medical bills, prescriptions and
Brad has been involved with the Rainbow Connection since 1978 and is a three time past president and current Board member.
Ohio Changes Asset Protection Laws
Governor Kasich recently signed into law HB 479, which amended several Ohio statutes that creditors and those planning their estates should look into.
Starting in March 2013, Ohio will be the 15th state to allow asset protection trusts. Business owners and professionals should contact their estate planning counsel concerning these trusts.
Ohio also raised the personal exemption for a house in a bankruptcy to $125,000. This will make it much more difficult for creditors to use liens against homes to collect debts.
Additionally, with the permanency of the federal estate tax limit at a higher level (currently $5.12 Million) and the repeal of the Ohio estate tax, families should consult their attorneys for a review of their estate plans as language of trusts prepared in the past may need to be revised to avoid unnecessary trust funding and administration hassle and expense.
FZR attorneys Michael Warkall, Frank Rose, Jr., and D. Brad Zimmerman are available to consult on estate planning issues. Please contact Attorney Steven Anderson to discuss creditor rights.
Ohio Legislature Protects Drivers with Increase on Minimum Insurance Coverage
In the last days of the lame-duck state legislative session, the Ohio Legislature passed House Bill 278, which is expected to be signed by Governor Kasich. This is an important protection for Ohio motorists, as it doubles the minimum coverage required by insured drivers in Ohio.
Ohio had not raised the minimum insurance coverage since mandatory insurance was instituted in 1969. As a result, Ohio’s minimum coverage was lower than 48 states. With the new legislation, Ohio will join 35 other states in requiring that insurance cover $15,000 in property damage plus $25,000 for medical bills, lost wages, and suffering per injured party (up to $50,000 total).
Very often, our clients would be hurt in an auto accident, only to find that the other driver carried “minimum” coverage that did not fully cover repair costs or medical bills. This change in the law should result in fewer claims by well-insured clients against their own insurance company for “underinsured” coverage, which should in fact lower insurance premiums for those with “standard” coverage (usually $100,000 per person and $300,000 total). For the 20 percent of the population with minimum coverage (and who are generally the highest risk), their insurance rates will likely go up.
FZR strongly advises clients never to waive underinsured or uninsured motorist coverage. It is not worth saving a few dollars on your premium. All drivers need this protection in Ohio.
Attorney Paul Hervey handles much of the firm’s personal injury work. He is happy to discuss these issues with FZR clients and explain why certain insurance providers give you more “peace of mind” than others because of “intrafamily” coverage.
Attorneys Greg Miller and Mike Warkall Honored in The Times Reporter's "Reader's Choice" Awards
Attorneys Greg Miller and Mike Warkall were both chosen as two of the top three “Favorite Attorneys” in The Times Reporter’s recent poll of readers. This is the second consecutive year Fitzpatrick, Zimmerman & Rose Co., L.P.A. had an attorney listed in the top three, as Brad Zimmerman was acknowledged as a top vote getter in 2011.
Miller manages the staff at Tuscarawas County Title Company, and provides guidance on real estate transactions, deeds and title issues. Warkall manages the firm's Sugarcreek office and his practice emphasizes probate, estate planning and trust work, in addition to providing guidance to small businesses and individuals.
Governor Expands Ability to Clean Record
Recently enacted legislation will allow more people to clean their criminal histories in the hopes of improving employment opportunities. Starting September 17, offenders with two convictions can seek the sealing of those records as long as one of the offenses is a misdemeanor. Previously, only “first-offenders” were eligible for the sealing of records. Limitations still exist so that sex crimes and crimes of violence cannot be sealed.
Contact Attorney Paul Hervey if you have any questions about this law as an offender or an employer.
Appeals Court limits use of Easements by Coal Companies
The Fifth District Court of Appeals recently ruled in a Tuscarawas County case that a driveway easement previously granted to a neighbor could reasonably be limited to stop the neighbor from expanding the use. This is especially important in mineral right cases. In the case in question, the neighbor sold coal rights to a mining company and gave permission to use her easement to drive across the owner’s property. The owner was happy that the court stopped the coal company from turning a driveway to a hunting ground into a roadway for a quarter-million tons of coal to be transported across.
Attorney D. Brad Zimmerman is available to help landowners to deal with both easement and mining lease issues.
Ohio Supreme Court puts Home Builders on Notice
The Ohio Supreme Court ruled this month that home builders have a duty to build a home in a workman-like manner and cannot get home buyers to waive that duty. Many home builders are asking customers to sign limited warranty waivers. Home builders and home buyers alike should consult legal counsel about this issue to protect themselves. Attorneys Steven Anderson and D. Brad Zimmerman are available to help parties draft appropriate and responsible contracts on these issues.
New York Times Focuses on Mineral Leases
Today’s New York Times focuses on the mineral leases coming to our area and how it is affecting individual lives and the attitudes of our neighbors.
FZR deals with these issues on a regular basis, not only in negotiating contracts on behalf of individuals and landowner groups, but also the estate and financial planning that is essential for people whom have suddenly received large checks from oil and gas companies.
Tuscarawas County Courthouse
New Philadelphia’s own Tuscarawas County courthouse is being profiled this month by the Ohio Supreme Court. The court profiles each of the state’s 88 courthouses for their historic value. The profile can be
Subcontract Disputes Once Again Clarified in Court Decision
A recent decision by the Ohio Court of Appeals once again highlighted a frequently contentious issue for subcontractors: contractors whom withhold payments because the contractor is awaiting payment from the project owner. The court’s decision: contractors cannot withhold payment forever due to owner default.
The facts are common to these disputes. A contract hires a subcontractor and promises that the subcontractor will be “paid when paid”. The contractor – for whatever reason – had not been paid after several months. The court ruled that “paid when paid” does not allow the contractor an unlimited time to pay, but rather only a reasonable time to await payment by the project owner.
The court ruled that if the parties truly intend to shift the burden of owner default to the subcontractor – called “paid if paid” in the business – then the contract must specifically state this “condition precedent”. Without specific language, the contractor may wait a reasonable time for payment from the project owner, but not indefinitely. Eventually, the contractor must pay its subcontractors even if the contractor has not been paid.
The issue of whom should bear the risk of a project owner’s default is one that FZR has worked on repeatedly on behalf of both contractors and subcontractors. For more information, contact Attorneys Steven Anderson, Paul Hervey, or Jilliann Daisher.
Tax Time - a Time for Spring Cleaning
Tax time is a great time to clean out that growing pile of financial papers and tax documents that clutter your home and office. Here’s what you need to keep and what you can throw out.
The Three-Year Rule:
For assessment of additional taxes, the statute of limitation runs generally three years from the date you file your return. If you’re looking for an additional refund, the limitations period is generally the later of three years from the date you filed the original return or two years from the date you paid the tax. There are some exceptions:
If you don’t report all your income and the unreported amount is more than 25% of the gross income actually shown on your return, the limitation period is six years.
If you’ve claimed a loss from a worthless security, the limitation period is extended to seven years.
If you file a “fraudulent” return, or don’t file at all, the limitations period doesn’t apply. In fact, the IRS can get you at any time.
Assuming that you’ve filed on time and paid what you should, you only have to keep your tax records for three years.
Remember, the three-year rule relates to the information on your tax return. But, some of that information may relate to transactions more than three years old.
Here’s a checklist of the documents you should hold on to:
Capital gains and losses.
Expenses on your home.
Employment, bank, and brokerage statements.
Social Security records.
Contact us by phone or email if you have any questions about what records you need to keep.
Legislature Makes Relative Adoptions Easier
Governor Kasich recently signed House Bill 212 into law after unanimous passage in both houses of the Ohio Legislature. It solves a problem many families face after taking custody of a relative’s children and simplifies their adoption process to give the child permanency and a sense of belonging in his or her new home.
Many times, relatives agree to take custody of a relative’s children, often because of the involvement of child welfare workers. This relationship becomes permanent and the relatives want to adopt the child years down the road. What many
good-meaning relatives did not realize is that they still had significant hurdles to adopting these children at a later date.
To prevent the abuse of the adoption system, Ohio requires the consent of both natural parents in domestic adoptions, in both writing and in person. This is often a significant hurdle, as natural parents sometimes disappear or refuse to consent to an adoption out of bitterness.
There has long been an exception to the consent requirement for adoptions by stepparents or grandparents on the theory that there need be no protection against “baby shopping” when dealing with relatives. However, the limited language of the statute did not address the common problem of other relatives having legal custody. HB 212 changes the process and allows all legal custodians the same standing as grandparents and stepparents where the natural parents have abandoned any
relationship with the child for a long period of time.
The Probate Court must still approve all applications and it is strongly advised that legal counsel be involved. Attorneys Paul Hervey, D. Brad Zimmerman, and Michael Warkall can be contacted for further help or assistance in this area.
The law takes effect May 22, 2012.
Brad Zimmerman Co-Hosts Rainbow Connection Telethon
The 39th annual Rainbow Connection Telethon was held on Sunday, March 4, 2012. FZR’s own Brad Zimmerman acted as Co-Host for the event, which raised $200,000 for local children and adults in need of help. Rainbow Connection onations benefit disadvantaged and disabled county residents. The donations are used to buy medical supplies and equipment and assist in the payment of medical bills, prescriptions and technological assistance.
Brad has been involved with the Rainbow Connection since 1978 and is a member of the Board of Directors.
Frank J. Rose, Jr. Accepts Prestigious Award
Jilliann Armstrong Daisher Marries
In November, 2011, the law firm of Fitzpatrick, Zimmerman & Rose Company took part in the celebration of the marriage of our Jilliann Armstrong to Keith Daisher. Congratulations to Jilliann and Keith on their recent marriage and we wish them the best of luck.
Brad Zimmerman One of Tuscarawas County's Best
Brad Zimmerman was recently named as one of the best attorneys in the five county publishing area of The Times Reporter newspaper. Brad received this honor by selection of the readership of The Times Reporter in a Fall 2011 publication.