 May 2012
Family Law Newsletter
Proudly Serving Our Clients Since 1992
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May began with a bang as we attended the Hillcrest Regional Chamber of Commerce's Business Expo on the third and held a reception for exhibitors afterward with JAC Business Communications and American Copier Solutions.
I have to say that the number of people who came through the doors was impressive, and I would definitely recommend attendance next year for anyone who didn't get a chance to go this time around. Many thanks to Angie Pohlman and Karen Schafer of the HRCC for a job superbly done, and on their behalf, visit http://www.hrcc.org/ to learn more about the Chamber. We are also proud to announce that we will be collaborating with the Small Business Development Center in downtown Cleveland over the next several months to provide new business owners with legal seminars. We are happy to be working with the SBDC and we encourage anyone beginning a new small business to use their available resources. There are several changes in Ohio policy to note this month, as described in the articles below. As always, if you have legal questions we encourage you to call us at 440.605.9641 or visit www.FangerLaw.com. Thank you for your readership and enjoy this month's newsletter. Jeffrey J. Fanger
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The State of Our State
Changes in Ohio Law
SB 117 and GCOAT regulations
As of March 22, SB 117 became effective and enacted the Uniform Power of Attorney, Involuntary Treatment, and Trustee Duties Act. This Act gives probate courts the power to include petitions for the involuntarily commitment of people who abuse drugs or alcohol, and establishes a procedure for doing so.
R.C. 3793.32 gives probate courts the authority to order involuntary treatment for people committing drug and/or alcohol abuse, but "only if all of the following apply:
(1) The person suffers from alcohol or other drug abuse;
(2) The person presents an imminent danger or imminent threat of danger to self, family,
or others as a result of alcohol and other drug abuse, or there exists a substantial
likelihood of such a threat in the near future;
(3) The person can reasonably benefit from treatment."
These guidelines should allay any fears that people will be unreasonably or unjustly committed to drug recovery facilities. Any petitioner looking to commit someone involuntarily must also be filing in the interest of that person and be a spouse, relative or guardian of his/hers. The petitioner must include why he feels the other meets the above criteria, a physician certified exam that shows the physician's opinion on treatment and whether or not the other would submit to an exam a deposit to cover half the cost of treatment, and a statement from the petitioner or other guarantor agreeing to pay for all treatment, legal and associated costs if and when the other is committed.
GCOAT, the Governor's Cabinet Opiate Action Team announced at the start of Ohio's 2012 Opiate Summit on May 7 that statewide guidelines are being established to control the prescription of Opioids and Other Controlled Substances (OOCS) in emergency medical facilities.
Kasich began GCOAT in the fall of 2011 "to address the continuing epidemic of misuse and abuse and overdose from prescription opioids. The GCOAT consists of five working groups:
(1) Treatment--includes Medication Assisted Treatment
(2) Professional Education
(3) Public Education
(4) Enforcement
(5) Recovery Supports
As of 2007, drug overdose surpassed all other causes of injury related deaths in Ohio, continuing until 2010. Prescription drugs were largely responsible for the rise in deaths, with Emergency Departments prescribing 39% of opioids. The OOCS guidelines are not a replacement for clinical judgment, which focuses on providing adequate and appropriate care to patients. The OOCS guidelines are, however, intended to cut down on those drug prescriptions that are routinely abused by addicts relying on the good intentions of doctors and clinicians.
"The various endorsers of the guidelines also play a significant role in clinical pain management prescribing practices in Ohio. Those who participated in the development of the guidelines and also endorse them are: Ohio State Medical Association; Ohio Osteopathic Association; Ohio Chapter American College of Emergency Physicians; Ohio Hospital Association; Ohio Pharmacists Association; Urgent Care College of Physicians; Ohio Bureau of Workers Compensation; Ohio Physician Assistants Association; and Ohio Association of Health Plans."
To read Senate Bill 117 in full detail, click here.
Other information taken from Healthy Ohio's website, to view click here.
GCOAT and OOCS action information taken from the Governor's Communication Department, to view the full release, click here.
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Article Corner 
Family Law Informational Articles
"Senate OKs texting ban for drivers - If House agrees, minors won't be able to use any handheld device"
By Jim Siegel - The Columbus Dispatch
May 4, 2012
The Ohio Senate voted on and altered a bill on May 3 that would outlaw texting while driving for all Ohioans and ban underage drivers from using any handheld electronics while behind the wheel.
Republican Senator Tom Patton of Strongsville was instrumental in the bill's passing, reminding fellow Senators that "Ohio's seat-belt usage rate grew to more than 85 percent after making that a secondary offense." Patton likened texting while driving to "ill-advised activity" that could seriously injure or kill another driver. The bill would classify texting while driving as a secondary offense, however, minors would incur a primary offense if caught using a handheld electronic device if the bill passes.
A troubling AAA study recently showed that the use of electronic devices was the most common distraction for teen drivers, causing their crash rate to be four times higher than that of adult drivers. The study found minor female drivers to be the most likely to use their cell phones while driving, and that drivers using an electronic device "were three times as likely to look away from the roadway as those who were not on a device."
Although there are questions of enforceability, the law is intended to send a message to careless drivers and both teens and adults about the dangers of texting while driving. There are some who argue that the law is infringing on personal choice, but as Republican Senator John Eklund said, "The same argument could be made against driving laws that say you can't drive 85 mph or while drunk."
There are still other distracted driving issues that need to be addressed, such as driving with a dog in your lap or applying makeup while driving. On this issue, however, Democratic Senator Charleta B. Tavares believes the bill should be even stricter, saying, "If we can save one life... that goes far enough for me."
To read the full article, click here.
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 Court Update
Recent Court Decisions of Interest in Family Law
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Equable Ascent Fin., LLC v. Christian, 196 Ohio App.3d 34, 2011-Ohio-3791
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In a case decided August 2, 2011, Court of Appeals Judge Peggy L. Bryant held that "card holder 'otherwise defended' under default judgment rule by moving to dismiss or for summary judgment and for sanctions, and card account holder's complaint was insufficient to set forth a claim for an account."
The original complaint was filed by Equable on March 24, 2010 against Christian, alleging that she owed $5,653.22 in credit card debt to Wells Fargo and that Equable now had control of the account through purchase. Christian asked for a more detailed complaint and Equable responded with an amended complaint on July 14, 2010. Christian responded with "a motion to dismiss or for summary judgment, and a motion for sanctions" by claiming first that Equable failed to provide a detailed invoice including credits, debits and a balance beginning at zero for the account in question in accordance with Civ.R. 10(D)(1). Second, Christian asserted that Equable lacked standing and, third that Equable's claims were brought through champerty and for unjust enrichment. These final claims were brought with the theory of champerty, i.e. that the plaintiff's lawyer encouraged the lawsuit in order to profit from the potential winnings and unjust enrichment, i.e. that the plaintiff brought the lawsuit with the intention of profiting by claiming to be owed damages unfairly or without proof. The trial court granted Equable's request for default judgment, but "because the trial court wrongly granted a default judgment against defendant who had defended against Equable's complaint," the decision was overturned.
Sue Ann Christian appealed the decision made by the trial court that had granted Equable Ascent Financial, L.L.C. a motion for default judgment. Equable originally asked for default judgment by claiming that Christian had not filed "a proper answer within the time period contemplated by the Civil Rules." Default judgment rules in favor of the plaintiff when the defendant does not answer in time or at all. However, Christian had, in fact, responded by denying the allegations made by Equable and "specifically refused to assent to Equable's claim for money owed," which is considered an answer.
Christian's appeal consisted of four causes for the reversal of the trial court's judgement; first, that Equable's amended complaint from July 14 did not satisfy Civ.R. 10(D)(1), second, that Equable was not a valid holder of the account in question, third, that the trial court incorrectly granted Equable's motion for summary judgement, and fourth, that the trial court did not acknowledging Christian's responses as answers, since she provided what answer she could considering the allegations.
Christian's second allegation was rendered moot, and her third and fourth causes were sustained immediately, as the trial court had clearly granted summary judgment incorrectly and had also erred in their dismissal of Christian's replies as adequate responses to Equable's first complaint.
Christian's first cause regarding Civ.R. 10(D)(1) was also sustained. Civ.R. 10(D)(1) specifically states that if a request for payment of a debt is brought, that the plaintiff must supply a copy of the statement and if it is omitted, then the reason for the omission must be stated. It also states that, "it begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear." Equable provided statements, but they did not satisfy these requirements as they only showed the end amount of alleged purchases and the corresponding interest rate. "Equable's complaint does little more than allege that defendant owes it an unexplained sum of money, an allegation that fails to comply with Civ.R. 10(D)(1)."
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A Moment of Levity
A Little Humor to Brighten Your Day
To see more cartoons, visit www.jasonlove.com |
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The opinions and views expressed in this newsletter are solely those of the author of the article and/or Fanger & Associates LLC. Articles appearing in this newsletter are intended to provide broad, general information about the law. This newsletter is sent to clients and friends of Fanger & Associates LLC, as well as Ohio businesses and Ohio nonprofit corporations as identified through their registration with the Ohio Secretary of State, including organizations with which Fanger & Associates LLC has no prior contact. Before applying this information to any specific legal problem, readers are urged to seek advice from an attorney. If you have any questions regarding any topic in this publication and you already have a lawyer, please contact your lawyer. If you do not already have counsel, please feel free to contact Fanger & Associates LLC and we will be happy to assist you. | ADVERTISEMENT ONLY
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