MALPRACTICE ALERT! FALL 2020

A quarterly periodical offering numerous loss prevention and practice management tips, along with updates on rules, laws and procedures.

This edition of Malpractice Alert will provide information on important updates for practicing lawyers:

 

New Uniform Domestic Relations and Juvenile Forms Enacted AND Requested for Public Comment by November 5th

Guardian Ad Litem Rules Amendments Take Effect January 1, 2021

Amendments to Ohio Rules of Civil Procedure

Criminal Rule 46 Amended

Case Law Developments

210 Judicial Races in November 3rd Election

CLE Credit for Ohio Lawyers Serving as Poll Workers

 

I hope the information in this Malpractice Alert is useful to you. As always, if you have any questions, please feel free to contact me at OBLIC.

 

Gretchen Mote, Esq.
Director of Loss Prevention

New Uniform Domestic Relations and Juvenile Forms Enacted AND Requested for Public Comment

Effective September 21, 2020, the Ohio Supreme Court enacted new uniform Domestic Relations and Juvenile Forms. In an unusual juxtaposition, the Court also indicated it is accepting public comment on the forms for 45 days.

 

The updated forms were amended to comply with changes in federal and state statutes. The forms, which took effect immediately when enacted on September 21, 2020, make substantive changes to how child support is calculated, eliminate reference to spousal support being tax deductible, and update notarization sections in accord with new Ohio statutory requirements.

 

Although the new forms were recently revised and enacted to reflect changes in federal and state statutes, the Court is seeking public comment. Comments may be submitted in writing or via email by November 5, 2020.

Guardian Ad Litem Rules Amendments Take Effect January 1, 2021

The Ohio Supreme Court adopted amendments to Rules 40-48.07 of the Rules of Superintendence for the Courts of Ohio for guardians ad litem (GAL). The rules apply for all domestic relations and juvenile cases when courts of common pleas appoint a GAL for children.

 

The amendments increase GAL training requirements and will require 6 hours annually of continuing education. The amendments also provide authority of a court to limit the scope of GAL appointment to a specific item or issue and give guidance for resolving conflicts which arise when an attorney is appointed as both the child’s attorney and GAL, and when a child’s wishes differ from GAL recommendations in abuse, neglect, dependency, unruly and delinquency cases. Finally, the amendments require that the court provide the GAL report to all parties.

 

Lawyers who serve as GALs may want to refer to the Ohio Guardian ad Litem Education Program page on the Supreme Court website.

Amendments to Ohio Rules of Civil Procedure

Significant amendments to the Ohio Rules of Civil Procedure took effect July 1, 2020. These amendments were recommended to the Ohio Supreme Court last fall by the Supreme Court Commission on the Rules of Practice and Procedure in their annual review of the Rules of Civil Procedure and other rules of court.

 

The practical application of these changes is being addressed in daily practice as the amendments apply to all actions filed on or after July 1, 2020 and to all pending actions. Where the amendment would not be feasible or would work injustice, the former version of the rules would apply.

 

It is especially important to note the many changes to time periods applicable to case scheduling, motion and discovery deadlines. Be sure to check for any amendments to local rules of court as a result of these amendments. See OBLICAlert of July 31, 2020 for additional details.

Criminal Rule 46 Amended

Criminal Rule 46 – Pretrial Release and Detention was also amended to improve efficiency in setting bail. The amendments, which took effect July 1, 2020, require that a court utilize the least-restrictive bond conditions and least amount of money for bail to secure the defendant’s appearance and expanded the non-exclusive list of bond conditions. Amendments also require that a bond schedule be used for the sole purpose of securing a release before an initial appearance and is not to be considered by a trial court during a bond hearing.

Case Law Developments

FE&D Action Requires Testimony

 

In a decision rendered on September 1, 2020, the 10th District Court of Appeals held in T & R Properties, Inc. v Traci Wimberly, No. 19AP-567, that when the defendant in a forcible entry and detainer action fails to appear, R.C. 1923.07 requires the municipal court to try the case as though the defendant was present. The Court found that Civ. R. 43 applies to forcible entry and detainer actions and requires that testimony be given in open court, unless an exception applies.

 

The decision overruled Oakbrook Realty Corp. v. Blout, 48 Ohio App.3d 69, 548 N.E.2d 305 (10th Dist.1988), to the extent it has been interpreted as permitting the municipal court to grant judgment on a forcible entry and detainer claim relying solely on statements contained in an affidavit without any testimony being offered in open court.

 

Lawyers representing either side in FE&D actions will want to read this decision. It provides extensive analysis of Civ.R. 43 and its applicability to forcible entry and detainer actions.

Misstatement in Application Can Void Policy

 

In a 6-0 decision the Ohio Supreme Court in Nationwide Mut. Fire Ins. Co. v. Pusser, Slip Opinion No. 2020-Ohio-2778 held that the company’s warning that “making a misstatement in the application could result in cancelling the policy” was sufficient to void the policy ab initio. The Court reversed the 7th District Court of Appeals holding that the phrase “could void the policy” was too ambiguous to decline coverage and held that the “nonmandatory nature” of the word “could” does not change the fact that the company warned a misstatement in the application voids the policy from the beginning.

 

This decision highlights the importance of heeding the warnings on policy applications to avoid any misstatements in completing the form.

210 Judicial Races in November 3rd Election

Judicial seats are up for election at all levels of the judiciary. Two seats are up for election on the Ohio Supreme Court. Justice Judith L. French will face 10th District Court of Appeals Judge Jennifer Brunner. Justice Sharon L. Kennedy will face Cuyahoga County Common Pleas Judge John P. O’Donnell.

 

Elections will also be held for 21 district seats on the Ohio Courts of Appeals. 187 seats are up for election on county trial courts. You can find out more about the candidates on Judicial Votes Count. Your OSBA is a project partner in Judicial Votes Count.

CLE Credit for Ohio Lawyers Serving as Poll Workers

In a novel plan, unanimously approved by the Ohio Supreme Court, an Ohio Lawyer who volunteers as a poll worker at general election sites on November 3, 2020 may earn 4 credit hours toward the required 24 hours of continuing legal education credits. The volunteer lawyer must complete training at their county board of elections and must work the entire voting day to earn the CLE credit.

 

There are almost 44,000 lawyers in Ohio. If you are a lawyer whose last name begins with a letter from M through Z, you must complete your CLE hours on or before December 31, 2020. This could be a unique way to combine public service with attaining some of your CLE credits. See OBLICAlert of September 4, 2020.