Page 15 - November 2018 | Cleveland Metropolitan Bar Journal

BUSINESS LITIGATION

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Palazzo, 8 Dist. Cuyahoga No. 103592, should have possessed, upon the exercise are unlikely to permit such an inequitable
2016-Ohio-5137 a third party beneficiary of reasonable diligence, actual knowledge and unintended result.
of a scheme to defraud the plaintiff was not not just that [it] has been injured but also
immune from liability in an OCTA claim that the injury was caused by the conduct CONCLUSION
even though she was not an employee of of the defendant. The OCTA is gaining momentum in Ohio courts.
the victim school district but merely an Because of the wide range of damages available
associate of the employee who perpetrated Bash v. Textron Fin. Corp. (In re: Fair Fin. under the statute and the fact that a criminal
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the fraud. Thus, if a party buys or receives Co.), 834 F.3d 651, 672 (6 Cir. 2016) conviction is not a prerequisite, the law is an
stolen goods or materials which he or she (quotations and citations omitted.) effective tool for employers, retailers, and other
knows or has “reasonable cause to believe” Additionally, the Ohio Supreme Court property owners in seeking compensation for the
were stolen, he or she may be liable under has held that the discovery rule applies loss of stolen goods or materials. Furthermore,
the OCTA for treble damages, even without to malpractice cases in which the R.C. buyers of stolen property, even those with no
a direct relationship with the victim. §2305.11(A) one-year statute of limitation relationship or interaction with the victim, may
applies. In Akers v. Alonzo, 65 Ohio St.3d be liable if they knew or had reasonable cause to
STATUTE OF LIMITATIONS/ 422 (1992), the plaintiff suffered from know that the property they bought was stolen.
DISCOVERY RULE symptoms of cancer but was diagnosed As the OCTA is a civil action and requires a
In the event a client is named as a defendant healthy by her treating physician, later lower standard of proof, causes of action may
in an OCTA case, the statute of limitations found to be errant. During discovery in the be more easily provable, against a greater range
may provide a defense. Ohio courts have ensuing malpractice case, it was determined of defendants, and with a multitude of damages
held that the OCTA is a penalty statute that a third doctor reviewed the diagnostic available to the property owner, including treble
and thus the one-year statute of limitations testing and concurred in the misdiagnosis. damages and attorneys’ fees.
set forth in R.C. §2305.11(A) applies. Upon that revelation, the plaintiff added
However, while some of those who commit the doctor as a defendant even though
theft offenses against a property owner are more than one year transpired since the Matthew Seeley is a litigator at
identified during or soon after the theft misdiagnosis. Though the plaintiff and the law firm of Kadish, Hinkel &
itself, other accomplices, such as the fence reviewing doctor had no direct relationship Weibel, LPA. In over two decades
who later buys the stolen material, may and, indeed, the plaintiff could and did of practice, Matt has represented
not be identified until long thereafter. And not know the existence of this physician, large corporations, family busi-
while treble damages from a thief may not the court permitted him to be added. The nesses and individuals in all areas of civil liti-
be collectible, they are more likely to be court found that the discovery rule tolled gation, including hearings, bench trials, jury
from the buyer, who may still possess the the statute of limitations until the unknown trials, arbitrations and mediations. Matt fo-
goods themselves. If the discovery rule doctor was identified. cuses his practice primarily in the areas of
were inapplicable to these down-the-stream These scenarios are analogous to OCTA business and commercial law with an empha-
bad actors, unscrupulous buyers could claims where wrongdoers acting in concert sis on employment and non-compete law,
escape civil liability by simply concealing with the thieves are not immediately business torts and real estate. Matt is admitted
the property for a year. While there is identified. Unless the discovery rule applies to the United States Tax Court of the United
seemingly no ruling directly on point, it to them, victims of theft — through no fault States Tax Court and also has many years of
seems implicit that courts would toll the of their own — have limited recourse if the experience in defending employers in workers’
statute of limitations until the identity of investigation takes longer than a year to reveal compensation matters. He can be reached at
the wrongdoer is discovered, as otherwise the identity of the ultimate buyer(s). Courts (216) 696-3030 or mseeley@khwlaw.com.
the essence of the damages provisions of the
OCTA can be easily thwarted. The rule is
applied in similar settings. Mediator/Arbitrator Ron Kopp
The Sixth Circuit recently decided
an Ohio Fraudulent Transfer Act claim Delivers Closure to Disputes
where the subject transfer could not have Ron Kopp has spent over 35 years handling high-
been discovered by the victims until years profile litigation. A past president of the Ohio State
later, during an ensuing law enforcement Bar Association, he is routinely on the list of the Top
investigation. In holding that the discovery 100 Ohio Super Lawyers, at times breaking into the
rule applied, the court examined the central Top 10. Increasingly, parties, attorneys, and judges
purpose behind its application: turn to Kopp as a preferred neutral to conduct
mediations and arbitrations of locked civil disputes.
[T]he crux of the inquiry was not at what Ron Kopp
point in time the defendant engaged in the 1375 East Ninth Street 330.849.6644
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allegedly wrongful conduct but at what One Cleveland Center, 10 Floor rkopp@ralaw.com
Cleveland, OH 44114
point in time the plaintiff possessed or
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