Real Estate Cases

State ex rel. Groffre Invest. v. Nimishillen Twp. Trustees, 2005-Ohio-5821 (District 5, Stark County)

Appropriation, taking by flooding, mandamus

Judgment was proper for owner on mandamus claim to compel appropriation proceedings by township board of trustees for taking of private property by periodic flooding due to negligent sewer maintenance.

Reeder v. Frey, 2005-Ohio-5853 (District 8, Cuyahoga County)

Fraud, disclosure of defects, home sale

In home purchaser's fraud and fraudulent inducement action, summary judgment for vendors was proper; purchaser produced no evidence of vendors' knowledge of any problem with water in basement other than disclosed sewer backup fixed by city, "as is" contract precluded fraudulent nondisclosure claim and purchaser had home inspected prior to closing.

Brown v. Painesville Twp. Bd. of Zoning Appeals, 2005-Ohio-5608 (District 11)

Zoning, variance, unnecessary hardship

Denial of landowner's application for variance to change use of land from fly ash landfill to a cemetery did not cause an unnecessary hardship since many factors were considered and applicant merely stated it was her desire and plan to use the land for a cemetery.

Unconstitutional taking, no compensation.

Landowner did not actually allege an unconstitutional taking as the result of denial of variance and did not seek compensation from township; assignment of error based on unconstitutional taking was without merit.

Springfield v. Gross, 2005-Ohio-5527 (District 2) Appropriations Case

In appropriation proceeding, dismissal was proper where ordinance expressing purpose for appropriation failed to include specific determination of necessity of including property in excess of that on which improvement was to be sited, where city intended to use portion of property for storage during construction and to build another improvement much later, Ohio Const., Art. XVIII, Sec. 10.

Norwood v. Burton, 2005-Ohio-5720 (District 1) Appropriations Case

In appropriations case concerning value of commercial property near unique mall, trial court did not abuse its discretion in permitting testimony of expert on visibility component; witness was properly qualified as an expert in subject of his testimony, his methodology for establishing valuation of visibility component was shown to be reliable, and though he admitted to no expertise in local property values, his opinion was not dependent on it, Evid.R. 702(C).

Construction Cases

C.J. Mahan Constr. Co. v. Mohawk Re-Bar Serv., 2005-Ohio-5427 (District 5, Stark County)  Prompt Pay Act only applies to claims related to performance of work or labor or

Prompt Pay Act

Where anti-indemnity statute voided obligation of subcontractor to indemnify general contractor, the withholding of funds was improper under prompt pay act since it did not involve performance of work or labor or furnishing of material, and subcontractor was entitled to payment in full, with interest, for completion of contract in skillful manner, R.C. 4113.61.

Construction, general contractor, anti-indemnity statute.

Summary judgment for subcontractor was proper on claims for work performed and against bridge general contractor on its breach of contract and failure to indemnify claims arising out of settlement of death claims of subcontractor's employees; anti-indemnity statute applied to void portion of bridge contract requiring subcontractor to indemnify general contractor for its own negligence, as alleged in employees' representatives' underlying complaint, R.C. 2305.31.

R.T. Builders, Inc. v. Granger, 2005-Ohio-6043 (District 7)

Residential Construction Dispute

Judgment for plaintiff-contractor was proper in case involving construction of home where there was some evidence contactor did substantial amount of work, but defendants refused to pay because of dispute; amount of judgment was appropriate for the amount of work done and evidence supported conversion since defendants used money paid to contractor for fixing damage by subcontractor.

Mills v. Rusk Industries, 2005-Ohio-5884 (District 6, Sandusky County)

Stay of Arbitration

In homeowners' unworkmanlike performance and breach of warranty action against basement waterproofing company, trial court did not abuse its discretion in staying proceedings pending arbitration

Arbitration clause was not procedurally or substantively unconscionable where homeowners negotiated a lower price and did not seek other bids, parties were in relatively equal bargaining positions and there was no evidence of high cost of arbitration.

Smith v. Hall, 2005-Ohio-5789 (District 5, Stark County)

Home Solicitation Act, Attorney's Fees

In homeowners' breach of contract claim, judgment against contractor was not against manifest weight of evidence where contractor failed to properly install drains in new garage, causing settling and buckling and requiring remediation.  The contractor who performed the remediation testified that the original contractor did not perform in a workmanlike manner

Trial court did not abuse its discretion in awarding attorney fees to homeowners in Home Solicitation Act action where contractor failed to include three-day cancellation notice in contract, a deceptive act or practice under R.C. 1345.21, even though homeowners never intended to cancel contract and contractor disavowed any deceptive intent.