Sampling of Court Decisions involving Jim Leickly


“A lawyer’s time and advice are his stock in trade” – Abraham Lincoln

Nexus Communications v. Qwest Communications (April 12, 2011, Tenth District Court of Appeals), Case. No. 10AP-561.  Succeeded in arguing the appeal of my client, Nexus Communications, which had lost at the trial court level on summary judgment.  The judgment against my client Nexus was $107,000 at which point I was hired to prosecute the appeal.  Nexus and Qwest had a written agreement for Nexus to purchase toll-free telephone line service from Qwest at a per minute rate.  When the 1-year term expired, the parties exchanged emails to continue the relationship month-to-month at the “base rate” which was a term that could be derived from the language of the terminated written agreement.  Going outside the terminated written agreement, Qwest had successfully argued to the trial court that the “base rate” was double the rate that existed during the contract.  We appealed and successfully had the summary judgment reversed and remanded because there was evidence of a failure of any meeting of the minds as to what the base rate should be.  Without a meeting of the minds, there is no contract.  That would leave open Qwest’s “equitable” claims for the value of its services to Nexus. An assignment of error that the trial court ignored Nexus’ affidavit evidence of poor service by Qwest was also successful.  Our accord and satisfaction claim failed.


Styles v. RZL, Inc. (January 21, 2010, Tenth District Court of Appeals), 2010-Ohio-172, Case No. 09AP-385.  Successfully defended a property manager who was sued by the manager’s owner client for negligence and breach of contract in his management of owner’s rental house.  There were more tenants than were named on the lease and the tenants caused significant damage to the premises.  The owner argued that the manager’s lack of supervision caused $15,000 of damages.  Won a summary judgment arguing  the exculpation clause in the management agreement that stated that there was no liability unless the manager’s actions were intentional or grossly negligent.  Affirmed on appeal.


Kellie Auto Sales, Inc. v. Rahbars & Ritters (Franklin Cty 2007), 172 Ohio App. 3d 675, 876 N.E. 2d 1014. Successfully represented a seller of commercial real estate who was sued by the buyer, who demanded specific performance of the contract.  The purchase contract had an attorney approval clause.  Buyer asserted that the contract was enforceable because no notice of any disapproval by seller’s attorney ever appeared before the closing date.  On behalf of the seller, I argued on summary judgment that the attorney approval clause was a condition of the contract and that unless the contract was approved, it would be nullified.  The contract required “approval” which never came.  It did not require a notice of  “disapproval”.  Summary judgment was awarded to the seller and then affirmed by the Tenth District Court of Appeals.


Wells v.  C.J. Mahan Const. Co. (April 11, 2006, Tenth District Court of Appeals), 2006-Ohio-1831, Case No. 05AP-180 and 05AP-183.  Hired to work on appeal for defendants who were sued by the widow of a deceased former shareholder.  Previous to my involvement as co-counsel to attorney Eugene R. Butler, a jury had awarded $3.2 million to the Plaintiff and against our clients.  We successfully overturned the verdict arguing that jury awarded a double recovery for the same pecuniary injury on separate breach of contract and breach of fiduciary duty claims.  The appellate court also ruled in our favor that: 1.) the jury was wrongfully allowed to go beyond the four corners of the shareholder agreement and determine if an automatic contractual 25 percent reduction in the pay off to the estate of a deceased shareholder of the deceased shareholder’s interest in the company  should be negated because its purpose had been “frustrated”; and 2.) the jury wrongfully awarded certain breach of fiduciary duty damages beyond the four-year statute of limitations for that claim.


MNNC Castle, Ltd. v. Doe (January 21, 2006, Common Pleas Court of Franklin County, Ohio), Case No. 05 CVH 02 1494.  Worked with attorneys Eugene R. Butler and James E. Rook and procured a fraud and punitive damage award against the owner of Doe & Associates, LLC (“D&A”), for misrepresenting that he was capable and willing to renovate two residential apartment units and could complete the project in two weeks.  After a payment to D&A of nearly $14,000 and nearly two years of unfulfilled promises to complete the job, D&A and plaintiff terminated their relationship plaintiff finished the job on its own.  Plaintiff sued D&A and its owner for damages, including two years of lost rents, plus punitive damages for fraud.  Due to failure of the defendants to obey several court orders related to attending depositions and supplying discovery, judgment was rendered against the defendants.  D&A then when into receivership, but a hearing was set against the defendant owner for damages and a determination of fraud and the applicability of punitive damages for malicious conduct.  After the hearing, Magistrate Timothy McCarthy awarded actual damages plus punitive damages. 


513 East Rich Street Co. v. McGreevy (May 15, 2003, Tenth District Court of Appeals), Case No. 02AP-1207.  Represented a commercial landlord who had accepted late rent from its commercial tenant on an ongoing basis, but had a clause in the lease that stated that the acceptance of late rent does not constitute a waiver the landlord’s right to collect late fees.  The trial court upheld the non-waiver clause and awarded my client, the landlord, 43 separate late charges against this tenant.  The Franklin County Court of Appeals affirmed the decision.


Boulden v. Estate of David Mark Boulden (October 4, 2001, Fifth District Court of Appeals), Case No. 01-CA-21.  Represented the ex-wife of a Richland County veterinarian who agreed in a divorce decree to supply his ex-wife with $767,000 of life insurance.  When the veterinarian was later killed in a vehicular accident, he had only a $50,000 accidental death and disability policy protecting his ex-wife.  The ex-wife accepted and deposited the $50,000 accidental death benefit.  I was then hired and we then brought suit to recover the remaining amount ($717,000) due pursuant to the divorce decree.  The Richland County Court of Appeals affirmed the trial court’s decision in our favor that neither the ex-wife’s knowledge of the veterinarian’s cancellation of the $767,000 policy (in exchange for the $50,000 accidental death and disability policy) prior to his death, nor her subsequent acceptance of a lesser $50,000 insurance payment, precluded her from recovering the $717,000 owed on the breach of contract claim.  The court in affirming the $717,000 award, stated that waiver, accord & satisfaction, novation and laches were not viable defenses.  Attorney Paul W. Leithart and I later sued our client’s former Mansfield, Ohio domestic attorney who knew about the breach of the agreement by the veterinarian when it happened but failed to 1.) inform his client; and 2.) enforce the agreement through the domestic court.  After prevailing in the defense of a motion for summary judgment, we settled the matter.


State ex rel. Livingston Court Apartments v. City of Columbus (Franklin Cty 1998), 130 Ohio App. 3d 730.  Represented an apartment complex owner in a mandamus action against the city of Columbus to force the city to commence eminent domain proceedings to compensate the owner for the city’s “taking” of the owner’s property.  The basements at the apartment complex would flood with sanitary sewage every time there was more than one inch of rain within an hour.  This is because many properties in the area had illegal connections of their storm water drainage systems into the sanitary sewer system thereby causing it to overload during occasional heavy rains.  Sanitary sewer and rainwater drainage are, by law, two separate systems.  Also by law, the apartment complex was required to (and did) maintain basement drains, through which the backflow of sanitary sewage flooded into the apartment units.  The city refused to either remove the illegal connections or to create a sanitary sewer system large enough to handle the overload.  The Tenth District Court of Appeals decided in favor of the apartment complex and ruled that the city had unconstitutionally “taken” the property without just compensation to the owner.


Rumley v. CESCO (Franklin Cty, March 28, 2000), Case Nos. 99AP-792 and 793.  Filed appellate briefs for client and the client’s attorney who were each erroneously sanctioned by the trial court pursuant to R.C. §2323.51 for allegedly filing frivolous claims.  The appellate court correctly reversed the sanctions, essentially ruling that the mere failure of a party to respond to a motion to dismiss or a motion for summary judgment does not mean that the underlying claims were per se frivolous.


Fifth Third Bank v. Margolis (Franklin Cty, December 9, 1997), Case No. 97APE05-693.  Represented a Jewish couple defending a fraudulent conveyance and home foreclosure action brought by Fifth Third Bank.  The trial court, because of its own scheduling conflict, moved a March 10, 1997 trial date to April 22, 1997 – the first full day of the Jewish observance of Passover.  Neither the parties, nor their counsel, had any input into the selection of the new date.  Trial court denied two motions for a continuance which were requested so that the defendant-homeowners could attend Temple services that day.  When the Margolises thereafter refused to appear at trial based on their religious beliefs, the trial court granted a default judgment against them.  The appellate court found that the trial court abused its discretion in failing to honor the Margolises’ request for a continuance and reversed the judgment.


Doe v. Blue Cross/Blue Shield of Ohio (Franklin Cty 1992), 79 Ohio App. 3d 369.  Represented a father who admitted daughter to psychiatric facility based on representations and assurances made by the hospital and the father’s insurer that there was full coverage.  The hospital and insurer later ascertained that there was not full coverage.  The hospital attempted to collect a $120,000 bill against the father.  The Tenth District Court of Appeals reversed a summary judgment rendered by the trial court against the father.  The appellate court stated the father had shown evidence that he was reasonably induced into an action adverse to himself by factual misrepresentations made by the defendants.


Professional Investigations and Consulting Agency, Inc. v. Kingsland (Franklin Cty 1990), 69 Ohio App.3d 753.  Represented a private investigation firm in an action to enforce a covenant not to compete against an ex-employee.   Trade secrets were also being misappropriated by the ex-employee. Procured a temporary restraining order against the breaching ex-employee and paid a nominal $50 bond.  The restraining order was then converted into a preliminary injunction.  Once the preliminary injunction was eventually dissolved, the ex-employee sought damages.  The trial court and the appellate court agreed that any conceivable damages by the restrained party are limited to the amount of the injunction bond ($50 in this case).


LJEL, Inc. v. Overland Transportation Systems, Inc. (Franklin Cty, March 28, 1996), Case No. 95APE09-1250.  Represented a trucking company (Overland) that was sued for breach of contract.  Overland procured a dismissal based on ongoing misconduct during the litigation by the plaintiff’s counsel.  That misconduct was the failure to provide lawfully requested documents despite two court orders to do so.  As a sanction, the trial court dismissed plaintiff’s claims and allowed Overland to move forward with its counterclaim.  The appellate court affirmed that the misconduct of plaintiff’s counsel warranted the harsh sanction of dismissal. The Ohio Supreme Court was asked to review the appellate decision, but refused to do so.


L.W. Shoemaker, M.D., Inc. v. Connor (Franklin Cty 1992), 81 Ohio App. 3d 748.  Represented plaintiff in an action to recover a psychiatrist’s fee against defendant.  The trial court dismissed the plaintiff’s claim pursuant to Civil Rule 41(B)(2) after the plaintiff rested its case.  The Tenth District Court of Appeals reversed the trial court’s decision, ruling that the plaintiff had presented enough uncontroverted evidence during its half of the case to require the defendant to then put on countervailing evidence.  The trial court’s improper dismissal at the conclusion of the plaintiff’s case prevented this from happening.  The case was remanded and the plaintiff procured its judgment at the retrial.  In a turnabout, defendant, Terry Connor, hired me years later to represent he and his partner in the successful State ex rel. Livingston Court Apartments v. City of Columbus case described above.


Sorrell v. Ohio Department of Natural Resources (1988), 40 Ohio St. 3d 141.  Represented a man injured while snowmobiling on the frozen surface of Buckeye Lake.  The Ohio Department of Natural Resources (“ODNR”) used the “recreational immunity” defense pursuant to R.C. §1533.181.  That immunity is granted to persons who permit their land to be used – without any fee – by the public for recreational purposes.  The logic behind the statute is to encourage private property owners to permit their lands to be used by the public for recreational purposes.  The Court of Claims’ summary judgment in favor of ODNR was reversed by the Tenth District Court of Appeals. The Ohio Supreme Court subsequently reversed the Tenth District and  held that the immunity did apply despite these facts: 1.) Mr. Sorrell was not a permissive user of the lake at the time of his injury (there were signs present restricting when persons were allowed to use the lake); and 2.) the recreational immunity statute, by its own language, did not apply to state-owned property, nor would the public policy of encouraging the opening of lands apply to the state.


Manogg v. Luper, Wolinetz, Sheriff & Neidenthal Co., LPA (Licking Cty, March 16, 1995), Case No. 94-CA-82.  Defended law firm and one of its attorneys who were wrongfully sued for malpractice.  Procured a dismissal of the case by the trial court and moved for, and obtained, a $3,150 judgment for reimbursement of attorney’s fees against the plaintiff pursuant to R.C. §2323.51 – Ohio’s frivolous conduct sanctions statute.  The judgment in our favor came from Licking County Common Pleas Judge Greg Frost, who is now a Federal District Court judge for the Southern District of Ohio.  The Fifth District Court of Appeals agreed with the trial court that the motion for sanctions was only required to be filed – not necessarily scheduled for a hearing – within 21 days of the rendering of the judgment dismissing the case.  The appellate court also agreed that the plaintiff’s conduct in filing the action was frivolous and that the calculation of the attorney’s fees was accurate.


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