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We are proud to share with you announcements concerning current legal developments, our recent accomplishments and other news & information that may be of interest to our friends and clients.
Wednesday
Oct222014

Patricia M. Ritzert Recognized by the Lawyers Guild of the Catholic Diocese of Cleveland

CWP&G is proud to announce that Principal Patricia M. Ritzert was recently recognized by the Lawyers Guild of the Catholic Diocese of Cleveland for her leadership, competence and outstanding commitment to values, work, law and justice in her position as the Chair of the Review Board for the Catholic Diocese of Cleveland.  The all-volunteer Review Board was established by the Bishop in 2003 for the purpose of evaluating the Diocese of Cleveland’s policies to protect children from sexual abuse, directing investigations of allegations of sexual abuse of minors by clerics, and advising the Bishop of its recommendations.  Ms. Ritzert was specifically recognized for her selfless and exemplary dozen years of service as Chair of the Review Board.  

 

Thursday
Oct162014

Parental Liability for Children’s “on-line” conduct

In what appears to be a case of first impression, a Georgia court of appeals has ruled that the parents of a child who created a fake Facebook page, by posing as a fellow classmate, using a computer supplied by his parents for his use and the family internet account could be held liable for the graphically sexual, racist or otherwise offensive postings. Those postings included content falsely stating that the fellow classmate was on a medication regimen for mental health disorders and that she took illegal drugs. The Facebook account issued invitations to become Facebook “friends” to many of other classmates, teachers, and extended family members. When the parents of the children learned that their children created a false Facebook page, they grounded the child but made no effort to view the unauthorized page, they took no action to determine the content of the false, profane, and ethnically offensive information, and they made no effort to cause the Facebook account to be removed or deleted. In fact, the false Facebook account remained accessible for a period of 11 months to Facebook users until Facebook officials deactivated the account when the lawsuit was filed.

The Georgia Court of Appeals held that parents may be held directly liable for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others. The key question is whether the parents had knowledge of facts from which they should have reasonably anticipated that harm to another would result unless they controlled their child’s conduct. In the Georgia case, the Court of Appeals concluded that the parents, although not necessarily liable for the original content or publication, continued to be responsible for supervising their children’s use of the computer and internet after learning that the child had created the unauthorized Facebook profile. The Court of Appeals observed that given the nature of libel, the original defamatory conduct may continue to unfold as the false and injuries communication is published to additional readers or the defamatory content persists in a forum without public correction or retraction.

In short, after the parents learned of the defamatory on-line activity, the parents may have failed to exercise due care in supervising and controlling their child’s on-line activity going forward. The Court of Appeals remanded the case to the trial court for a jury to ultimately decide the issue of parental negligence.

Should you have any questions concerning this case or any other internet related matter, please contact Scott D. Simpkins at (216) 621-8484.

Thursday
Oct092014

CWP&G successfully prosecutes claim before the Ohio Supreme Court

CWP&G is pleased to announce that the Ohio Supreme Court issued an opinion on October 9, 2014, which found in favor of a former Cleveland, Ohio employee, and member of one of its Union clients, whose employment had been terminated.  The Court held that Cleveland had wrongfully failed and refused to provide a formal post-termination administrative hearing, which that employee sought, and Cleveland was required to provide pursuant to its own civil service rules.  Those rules allow employees to challenge the termination of their employment by requesting a hearing before a neutral hearing examiner.   A copy of the decision can be found on the Ohio Supreme Court's website at http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2014/2014-ohio-4364.pdf

If you have any questions regarding this Ohio Supreme Court decision or any employment matter, please do not hesitate to contact CWP&G attorneys Stewart “Dan” Roll, Patrica Ritzert or Scott D. Simpkins at (216) 621-8484.

Monday
Aug042014

Pay-when-paid or pay-if-paid construction contracts

On July 17, 2014, the Ohio Supreme Court clarified the distinction between “pay-when paid” versus “pay-if-paid” construction contracts.  In Transtar Electric, Inc. v. A.E.M. Electric Services Corp., 2014-Ohio-3095, 2013-0148 (2014), the Court distinguished between the two types of contractual provisions that establish the manner by which a general contractor typically pays a subcontractor for the subcontractor's work. A general contractor can make an unconditional promise to pay the subcontractor, usually within a reasonable time to allow the general contractor to be paid. An unconditional promise to pay is a pay-when-paid payment provision. Such a promise, the Court stated, is not dependent on or modified by the owner's nonpayment. A pay-when-paid contract provision places the risk of the owner’s non-payment squarely on the general contractor.

On the other hand, the general contractor may make a conditional promise to pay the subcontractor that is enforceable only if a “condition precedent” has occurred. A conditional promise to pay is a “pay-if-paid” payment provision. This provision requires the general contractor to pay the subcontractor only if the owner pays the general contractor. Therefore, the risk of the owner's nonpayment is transferred to the subcontractor.

While the distinction is important, the language of the contract may at time be vague. Ohio courts will look to the plain and ordinary meaning of the language used in the contract unless another meaning is clearly apparent from the contents of the agreement. When the language of a written contract is clear, a Court may look no further than the writing itself to find the intent of the parties.

If the contract contains language such as “'final payment shall be made within thirty (30) days after the last of the following to occur, the occurrence of all of which shall be conditions precedent to such final payment,” then a court will conclude the provision is a “pay-if-paid” provision.

General contractors and subcontractors alike should pay particular attention to this important contract provision.

Should you have any questions concerning this case or any construction matter, please contact Scott D. Simpkins at (216) 621-8484.

Monday
Mar312014

The 11th District Court of Appeals Affirms Trial Court’s Dismissal of Breach of Contract Claims Against CWP&G Client

CWP&G is pleased to announce that the 11th District Court of Appeals affirmed a Lake County Court of Common Pleas decision to grant summary judgment in favor of CWPT&G client, Red Line Marine Liquidators, Inc., on a breach of contract claim asserted by Mark Spoerke.  Mr. Spoerke alleged Red Line breached a contract for the sale of a large recreational boat.  In affirming the trial court’s decision, the Court of Appeals found that no contract existed between the parties because no “meeting of the minds” occurred between the parties as to the essential terms of the contract.  A copy of the decision can be found on the Ohio Surpreme Court's website at http://www.sconet.state.oh.us/rod/docs/pdf/11/2014/2014-ohio-1362.pdf.  If you have any questions regarding the Court of Appeals decision or any commercial contract matter, please do not hesitate to contact CWP&G attorneys Stewart “Dan” Roll or Scott D. Simpkins at (216) 621-8484.