In Flagstar Bank v. Reinhold (C-090166) [PDF], the First District reaffirmed its prior holdings that the discovery rule does not apply to claims of professional negligence against accountants, brokers, dealers, and appraisers in real estate transactions. Citing the Supreme Court’s decision in Investors REIT One v. Jacobs, the court explained that the statute of limitations begins to run when the allegedly negligent act was committed, not when it was discovered or when damage arose.

and wouldn’t you know it? They don’t like it. Not for jurors, anyway.

In a January 28 memo, the Conference recommended the following addition to its model jury instructions:

You may not communicate with anyone about the case on your cellphone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn and YouTube.

Judge Julie Robinson explained that “more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices.”

The pattern jury admonishment for Ohio does not yet include a phone-, electronic-, or social-media-specific instruction, and reads as follows:

The court reminds you not to discuss the case. You are reminded, also, not to obtain or receive information concerning this case from outside the courtroom. You must not read, listen to, or watch any source of information relating to the case. You must report to the bailiff or the court any attempt by anyone to discuss the case with you or in your presence. Any violation of this order could result in serious penalties under the law.

We have previously covered courts and Twitter or other social media several times:

• SCOTUS blocks YouTube coverage of Prop 8 trial (and part II)
• More fun with Twitter
• Federal Rules of Criminal Procedure Interpreted as Barring Twitter Coverage of Trial from Inside Courtroom
• Australia allows media coverage of cases by Twitter
• Could an American court order service of an injunction by Twitter?

“Not when he isn’t asked about them,” says the First District.

In Effective Shareholder Solutions, Inc. v. National City Bank [PDF], the jury returned a verdict in favor of the defense.  The jury foreman was an attorney, and during voir dire he was asked if there was anything about his practice which would cause him to side with the defense, whether he knew any of the attorneys or parties, or whether his wife (also an attorney) knew or had represented any of the parties.  While he acknowledged knowing two of the attorneys, he responded in the negative to the other questions.

Two months after the jury’s verdict, a representative of the plaintiff discovered that the juror’s law firm’s web site listed the defendant as a “representative client”; upon further inspection, it was discovered that the Cleveland office of the firm had represented National City in a probate matter some five years earlier.  Based on this information, the plaintiff moved for relief from judgment, which the trial court denied.

The Court of Appeals affirmed, holding that the plaintiff failed to satisfy the test set forth in the Suprme Court’s decision in Grundy v. Dhillon, 2008-Ohio-6234.  The Grundy test requires a showing “that a juror failed to answer honestly a material on voir dire and that the moving party was prejudiced by the presence on the trial jury of a juror who failed to disclose material information.”  The test was not satisfied in this case because the juror was never asked whether his firm had ever represented the defendant–he was only asked whether he personally had any relationship with it.

Furthermore, the court appeared to doubt whether such an answer would have been material anyway.  Essentially, the First District observed, the plaintiff was asking the court to either impose a duty on attorneys to perform full conflict checks on parties to a case in which they may be seated as jurors, or to impute the knowledge of an entire law firm to a single lawyer.

The court declined to do so, noting that such a rule would encroach upon the Ohio Supreme Court’s exclusive right to impose professional standards and rules of conduct on attorneys.

According to the First District, the answer to that question depends on whether the defendants “actively litigated” the case.

In Key Personnel Service, Inc. v. Corus Pharmacy & Healthcare Products, Inc. [PDF], the Pennsylvania defendants filed answers asserting the defense of lack of personal jurisdiction.  The defendants later moved for leave to amend the answer and add counterclaims.  The defendants then filed motion to dismsis for lack of jurisdiction, and the motion for leave was granted the next day.  The amended answer and counterclaims were filed shortly after leave was granted, and while the motion to dismiss was pending.

The plaintiff then voluntarily dismissed its complaint, filed a reply to the defendants’ counterclaim, and filed its own counterclaims–the latter of which essentially amounted to a re-filing of its initial complaint.

Despite the fact that the complaint had been dismissed, the trial court ruled on the motion to dismiss for lack of personal jurisdiction, and granted it.  The plaintiff appealed, arguing that the defendants voluntarily submitted to the court’s jurisdiction when they filed their motion for leave to amend, or at the latest when they actually did assert the counterclaims.

The First District agreed with the plaintiff, and reversed the trial court.  The court held that the defendants voluntarily submitted to the jurisdiction of the court when they sought leave to file the counterclaims.  The court held that this amounted to “actively litigat[ing]” the case, and distinguished it from a similar case in the Twelfth District (National City Commercial Capital Corp. v. Page, 2009-Ohio-1161 [PDF]), in which the defendant’s only counterclaim was for a declaratory judgment stating that the contract sued upon was invalid.  The court noted both that the nature of the declaratory judgment counterclaim and the time at which it was asserted (before the motion to dismsis in the Twelfth District case) made the posture distinguishable.

Put another way, the defendants in Key Personnel essentially waived their jurisdictional motion when they later asserted their counterclaims.  The National City defendant, on the other hand, never waived the jurisdictional defense because it was properly asserted in their answer at the same time as the counterclaim.

In a unanimous opinion last week, the Ohio Supreme Court held that the failure to serve a defendant within one year results in a dismissal with prejudice if the complaint has been previously voluntarily dismissed.  The decision seems poorly reasoned, as it does not account for either Civ.R. 4(E) or R.C. 2305.19(A).

The plaintiff in Sisk & Associates, Inc. v. Committee to Elect Timothy Grendell, 2009-Ohio-5591 [PDF] filed its initial complaint in September 2004, but voluntarily dismissed pursuant to Civ.R. 41(A) after failing to serve the defendant within one year.  Sisk re-filed in October 2005, but again failed to serve the defendant within one year, and apparently did not even issue a praecipe for service until March of 2007.

The trial court dismissed the case without prejudice, citing a lack of personal jurisdiction over the defendant.  The Tenth District agreed, noting that Civ.R. 41(B)(4)(a) provides that a dismissal for lack of personal jurisdiction is a dismissal otherwise than on the merits.

The Supreme Court reversed, beginning its analysis with the non-controversial statement that the first dismissal of the case was voluntary, and that if the plaintiff had voluntarily dismissed the case a second time, the second dismissal would have been on the merits–that is, with prejudice–pursuant to Civ.R. 41(A)(1).

But the second dismissal was involuntary.  Under Civ.R. 41(B)(3), an involuntary dismissal “operates as an adjudication up on the merits unless the court, in its dismissal order, otherwise specifies.”  And in this case, the court specified otherwise, stating that the involuntary dismissal was without prejudice.

Put more simply, if the plaintiff voluntarily dismissed the second time, then the dismissal would be with prejudice.  But by letting the court dismsis, then the dismissal was without prejudice.  The Court did not find this to be equitable.

In support of its holding that the second dismissal should have been with prejudice, the Court cited Civ.R. 3(A), which provides that “[a] civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing . . . .”  The Court then reasoned that the plaintiff’s request for service outside that one-year time period essentially amounted to the filing of a new–that is, a third–complaint.  And filing a third complaint means that the second complaint must have been dismissed.  The court treated this implied dismissal a second notice dismissal, which under Civ.R. 41(A)(1) must be with prejudice.

This seems like an odd set of legal fictions to construct when the Court could have reached the same result much more simply under the savings statute, and without offending Civ.R. 4(E).  (Rule 4(E) provides that the time for service may be extended beyond one year upon a showing of good cause, and that a failure to serve within one year shall be a dismissal without prejudice.)

The better approach would have been to focus not on implied dismissals, but on the savings statute, R.C. 2305.19(A).  The savings statute provides that a party “may commence a new action within one year after . . . the plaintiff’s failure otherwise than upon the merits.”  Civ.R. 3(A) determines when a new action is “commenced” — specifically, a new action is commenced when the complaint is filed with the court, so long as the defendant is served within one year.  In this case, because the defendant was not served within one year, the new action was never “commenced.”  As a new action was not commenced, the plaintiff could not take advantage of the savings statute.

But then again, perhaps there is a reason that I am not a Supreme Court Justice (other than my ineligibility under R.C. 2503.01).

We have previously covered the Ohio savings statute and Civ.R. 41, as they relate to arbitrations.

Even though every attorney knows that they’re out there, my experience as a clerk suggests that very few read the local rules of the courts in which they practice.

In Ameritech Publishing, Inc. v. Griffin, 2009-Ohio-5602 [PDF], the Second District affirmed summary judgment in favor of the plaintiff where the defendant did not respond to the MSJ within the time prescribed by local rule.  The court held that the local rule–which provided fourteen days to file a memorandum in opposition–controls over the statement in Civ.R. 56(C) that “[t]he adverse party, prior to the day of the hearing, may serve and file opposing affidavits.”

Perhaps fortunately for the defendant’s attorney, he does not need to explain his misstep to his client–he was representing himself.

Kokosing Construciton Co., Inc. pulled off a rare hat trick — its appeal has now been dismissed three times for lack of jurisdiction.

Kokosing was the defendant in a breach of contract and negligence action, and raised several counterclaims.  The case was apparently tried to a jury on the plaintiff’s breach of contract claim–but the plaintiff’s negligence claim and all three counterclaims were not tried.  (I say “apparently” because, as the Ninth District notes, there were no journalized jury interrogatories or verdict forms in the record.)

After the trial court entered judgment on the plaintiff’s breach of contract claims, Kokosing filed a motion for JNOV and a motion for new trial, then filed a notice of appeal while that motion was pending.  The trial court issued an entry stating that it would not consider the motions because of the notice of appeal.

The Court of Appeals then dismissed for lack of jurisdiction, noting that in fact the trial court retained jurisdiction while the Rule 50(B) and Rule 59 motions were pending.

For some reason, Kokosing’s counsel then filed another notice of appeal just three weeks after the prior appeal was dismissed for lack of jurisdiction.  The Court of Appeals dismissed again.

The trial court eventually deneid the motion for JNOV and the motion for new trial.  And Kokosing appealed again.

For the third time, the Court of Appeals dismissed the case for lack of jurisdiction, this time noting that the trial court had evidently entered judgment only on the plaintiff’s breach of contract claim, and none of the others.  Pursuant to Rule 54(B), an order which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties is appealable only upon an express finding by the trial court that “there is no just reason for delay.”  As the trial court’s judgment entry did not contain such a finding, the order was not appealable.

The case is Dragway 42, LLC v. Kokosing Construction Co., Inc. (9th Dist.), 2009-Ohio-5630 [PDF].