Whether you are a project owner, contractor, subcontractor, supplier, design professional or engineer in the construction industry, you expect to get paid for your work. What happens when there is a dispute or you do not get paid? You can pursue litigation, but before taking your claim to court, there are many factors to consider.

           

Q:       I finished constructing a homeowner’s porch and received no complaints – and no payment. Won’t the court automatically rule in my favor and make the homeowner pay me? 

A:        No. The law does not automatically award damages to the filing party if another breaches a contract, even if the breach is intentional. In more complicated cases, “legally recoverable damages” may not be enough to make you “whole” again. If, for example, the homeowner has no money, you may not be able to recover what is owed to you, even if you are in the right.

Q:           I’m a subcontractor. If a project owner or company fails to pay me and I sue, can I expect to get paid if I win my lawsuit?

A:            Not necessarily. Project owners and companies often protect themselves against any form of liability.  They may put property in trust or in the name of a limited liability company. For example, if you agree to do subcontract work on a building owned by a limited liability company, that company may purposely operate with minimal assets to avoid being forced by a court to pay you.

Q:       A small company hired me to remodel its office space. Before I was completely finished, the company went out of business. I want to get paid for time and materials. Should I sue?

A:        You must fully satisfy the contractual duties in the project. You may also be legally responsible for other parties such as a subcontractor, so make sure those parties also complied with the terms of the construction project. If not, you may not win your suit. Even if you have been wronged, anything you may have done wrong will affect the outcome of your suit.

Q:       How do I know whether or not I should sue? 

A:        Ask yourself why you want to pursue your case. Is it a business decision, or do you feel you have to stand up and make a point in the industry? Also, you must determine whether enough money is in dispute to make it worth paying your lawyer to pursue litigation. Will the potential award outweigh the emotional burdens and resources spent on litigation and a possible wait of one or more years for a trial verdict or settlement? 

Q:       How can I prove my case?

A:        Consider these questions: Is there documentation to back up your story? Are witnesses available who will testify in your favor? Do you know who and where all of the potential defendants are? What causes of action can you pursue in court? Even if you are sure you have been wronged, you still have to prove your claims before you can recover any damages through the court system.

Q:       Could I be risking my business if I sue? 

A:        If you intend to have a future business relationship with the potential business(es) you want to sue, ask yourself if it’s worth risking future loss of business for this one lawsuit.  You may also be risking future business from affiliates of the business you want to sue.

Q:       Is there an alternative to bringing suit? 

A:        Arbitration and mediation are two forms of dispute resolution to consider in place of litigation. Check your construction contract. Some contracts require the parties to pursue mediation or arbitration before any suit can be filed. 

Mediation is a voluntary dispute resolution process, meaning all participants must consent and work toward a mutually agreeable resolution. Mediation is not binding. 

In arbitration, a neutral party (i.e., the arbitrator) hears a dispute between the parties, and after considering all relevant information renders a final decision in favor of one of the parties. Arbitration decisions may be either binding or non-binding.

Q:       Do I need an attorney?

A:        When considering whether or not to sue, you should know as much as you can so you can make the best decisions, and protect and defend your rights. It is a good idea to contact an attorney who has knowledge of and experience in construction law matters.

This “Law You Can Use” consumer information column was provided by the Ohio State Bar Association. It was prepared by Andrew L. Smith, a senior associate attorney in the Cincinnati office of Smith, Rolfes & Skavdahl Company, LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

            In a divorce or dissolution action, or in the case of unmarried parents, parental rights and responsibilities for minor children must be allocated. Custody can be allocated in two ways: sole custody can be given to either parent, or shared parenting can be given to both parents. Decisions for minor children are then made based on how parental rights and responsibilities are allocated.

Q:       How does the court decide custody issues?

A:        Custody determinations are governed by Ohio law (Ohio Revised Code, Section 3109.04). The court must consider various factors as the law requires. These factors include (but are not limited to) the wishes of each parent, the wishes of the children, the ability of the parents to communicate, the distance between the parents’ residences, the children's adjustment to the community and school with either parent, and the children's interactions with either parent and other family members.

Q:       What is sole custody?

A:        The parent who receives “sole custody” becomes the child’s legal custodian and will make decisions about non-urgent medical care, schooling, religious training, discipline and extra-curricular activity involvement. The sole custodian must keep the non-custodial parent advised about all matters involving the children, but will be able to make these decisions even if the non-custodial parent disagrees. The non-custodial parent will have parenting time with the children, including holidays and vacation time. Also, the non-custodial parent will have equal access to medical and school records. 

Q:       What is shared parenting?

A:        The court cannot grant shared parenting unless one or both parent(s) files a motion with a proposed shared parenting plan. If the court orders shared parenting, both parents are designated legal custodians of the minor children and must make all decisions together. These decisions will be outlined in a shared parenting plan that is filed with the court. The children may attend school in either parent’s school district. The parents must communicate to further the best interests of their children.

            Neither parent can make unilateral decisions for the children in a shared parenting arrangement. If the parents are unable to agree on decisions about the children, they will be required to attend mediation sessions before they can file motions with the court. Generally speaking, Ohio courts favor shared parenting because it is thought that children benefit when both parents are involved in childrearing decisions. In some cases, however, shared parenting is not appropriate. For example, when there is a history of domestic or substance abuse, shared parenting may not be in the best interests of the children. 

Q:       Do I have shared parenting if I have my children 50 percent of the time?

A:        It is often thought that having a 50/50 parenting schedule means that the parents have “shared parenting.” While parents who share equal time with their children often have shared parenting, it is not required. Even when the court allocates sole custody to one parent, both parents may share parenting time equally.

Q:       What is a parenting schedule?
A:        In addition to issuing a custody allocation, the court will also order a parenting schedule, which determines how much parenting time each parent has with the children. A parenting schedule is different from custody. For example, even if parents do not have equal parenting time, they can have shared parenting for decision-making purposes. 

Q:       If I have shared parenting, do I have to pay child support?

A:        A common misconception is that if the parents have shared parenting of their minor children, then neither parent will be required to pay child support. Various factors are taken into account when determining child support, which is done on a case-by-case basis. 

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorneys Trista Portales Goldberg and Maggie M. Nestheide of Beth Silverman & Associates. The column offers general information about the law.  Seek an attorney’s advice before applying this information to a legal problem.

Q:       What is a trust?
A:        A right of property held by one party for the benefit of another, usually in writing.

Q:       Who are the parties?

       A:        The person creating the trust is called the grantor (or sometimes the settlor, trustor or creator), and the other party is known as the trustee. A beneficiary receives benefits from the trust created by the grantor and administered by the trustee. The trust may, and usually does, provide benefits for more than one beneficiary. Sometimes, the same person may be grantor, trustee and a beneficiary.

Q:       What is a revocable trust?

       A:        A revocable trust, commonly known as a “living” trust, is the most popular kind of trust. During the grantor’s life, the trust is “living,” and the grantor can add to it or subtract from it at any time, for any reason. The grantor may also amend, restate or revoke (cancel) the trust. When the grantor dies, the trust becomes irrevocable. 

Q:       What is the purpose of a revocable trust?

A:        Probate avoidance is one major purpose. Others include privacy, more efficient administration of the grantor’s affairs after death, ongoing financial management of trust property, and ultimate disposition of the balance of trust property.  For example, trusts are often created by parents for the benefit of their children. The trustee has discretion to pay the children’s college expenses and, if funds remain, pay the balance to the children as they mature.

Q:       What is trust property?

A:        The grantor transfers assets to the trustee, including cash, stocks, bonds, real estate, CDs, brokerage accounts, insurance policies and personal property. By doing so, the grantor converts “probate” property (governed by the will) to trust property (governed by the trust).

Q:       What is probate?

A:        “Probate” describes the process of proving a will. In each Ohio county, a probate court oversees the proving of wills, the gathering of assets, the payment of expenses and distribution of the balance to those named in the will. If there is no will, Ohio law governs the administration of a decedent's estate. While it is sometimes slow and expensive, the probate court serves as an overseer to protect and safeguard the decedent’s beneficiaries.

Q:       Will I save estate taxes by creating a revocable trust?

A:        No, but Ohio repealed its estate tax on deaths after December 31, 2012. Under current law, unless your property (including trust property) is worth more than $5,430,000 in 2015 (adjusted for inflation in future years), federal estate tax will not apply. 

Q:       Will I save income taxes by creating a revocable trust?

A:        No. A grantor is considered the owner of the income from the property that is held in trust and is reported on the grantor’s personal income tax return. Upon your death, the trust usually transfers its income to the beneficiaries. In turn, that income is taxed to the beneficiaries at their personal income tax rates.

Q:       What are the advantages of a revocable trust compared to probate?

A:        Privacy. A revocable trust is a private agreement between the grantor and trustee and is not subject to public scrutiny after the grantor’s death. Probate matters are reported to probate court after the grantor’s death and are open to public review.

            Control. A trustee of a revocable trust has more independence, flexibility and control than an executor of a will because a trustee does not file reports and accounts with a court, although the Ohio Trust Code requires the trustee to provide mandatory financial reports to beneficiaries).

            Lower Costs. A revocable trust avoids probate costs, which typically include court costs, appraisal fees, bond premiums, and executor commissions.   Attorney fees are usually less.

            Efficiency. The trustee may distribute trust property to beneficiaries soon after the grantor's death.

            Avoidance of Multiple Probate Proceedings.  If real estate is owned in other states, a revocable trust may be used to avoid separate probate proceedings in those other states.

Q:       What are the disadvantages of a revocable trust?

A:        Initial Cost. Education, preparation and implementation of a revocable trust will be more expensive than creating a will. 

            Absence of Court Review. Because probate court does not oversee the administration of a revocable  trust, the risk of error, whether intentional or unintentional, may be greater than the probate of a will.

            Longer Statute of Limitations. A challenge to a revocable trust must be made within two years, whereas someone wishing to challenge a will must do so within three months.

Q:       Who should prepare my revocable trust?

A:        You should consult with a lawyer skilled in probate, estate planning and tax matters. Be wary of creating a revocable trust without consulting directly with a lawyer first. 

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Paul S. Klug, a partner with the Cleveland firm, Ziegler Metzger, LLP. The column offers general information about the law.  Seek an attorney’s advice before applying this information to a legal problem.

Q:       I want to become a member of community garden. Where do I begin?

A:        Many community gardens are run by local non-profit organizations, sometimes in connection with a local university or the local municipality’s community development department. For more information, check the websites of organizations such as Civic Garden Center in Cincinnati, Get Green in Columbus and Green City Growers in Cleveland.

Q:       If I want to start my own community garden, how can I obtain land?

A:        Some municipalities allow gardeners to lease land directly from the city, as municipalities benefit by putting vacant plots of land to use. These programs may allow the gardener to obtain title to the land after they revitalize the plot for a certain number of years. You may also lease land from a private individual (via short-term lease agreements), or purchase your own plot. Some cities may even provide you with a grant to subsidize these initial costs. 

            While gardening is a low-risk activity and injuries are infrequent, both private parties and cities may require you to buy insurance for liability arising out of the garden’s operations, and to agree that the owner will not be responsible for such liability, as a condition of the lease.  

Q:       What should I consider when searching for a suitable plot of land?

A:        First, you will want to make sure the land is properly zoned. Plots of land are generally divided into residential, commercial and industrial uses. These may not permit community gardening activities, depending on the city. And even if permitted, each zone may restrict the activities. One zone may restrict the height of structures/vegetation, while another may restrict how close structures/vegetation can be to neighboring properties. Check with your city to ensure that your garden will comply with its zoning requirements. Even if the prospective land is not ideally zoned, however, you may be able to obtain a variance (or exception) from the local building department for your specific use. Additionally, if your garden is in a suburban environment, you should be aware of any relevant homeowner’s association regulations. 

            You should also make sure the plot of land contains no environmental hazards, especially in urban areas. Prior activities on the land, or activities on land surrounding your plot, may have left behind contaminants. This is particularly important if you plan to buy the land, because responsibility for such hazards will fall on you if the local municipality becomes aware of them. Try to find out how the plot was used in the past, and check with those in the community about the condition of the land. You might also contact the community’s building department or the local EPA district office to inquire about testing the property’s soil. 

Q:       How should I manage the garden?

A:        Some gardens operate as community endeavors, in which no one member has claim to any particular plot or plant, and all members are responsible for the whole garden. Others assign individual plots to specific members. Some gardens are open to the public, while others are “closed-gate” and open only to members. How your garden operates is up to you.

Before starting a garden, you should draft a model gardening agreement that each member must sign. The agreement should address the manner of the garden’s operation, pertinent rules and regulations (including rules required by local ordinance on plant and structure height, location, etc.), the election or appointment of officers who will lead the garden’s operations (e.g., a president and treasurer), assignment of a particular plot to each member (if applicable), indemnification of the landowner, and responsibility for supplies. It should also address the consequences of taking produce from another member without permission. Such an agreement will help members understand their role in the garden and will help resolve any disputes that may arise, which will allow the garden to operate efficiently.  

Q:       What should I know if I want to sell the products of my garden?

A:        You are more likely to encounter issues if you sell your products by setting prices and making profit, as opposed to covering costs through donations. It would be wise to contact the local municipality to inquire about a license/permit before trying to sell your garden’s products on your own. You may also be able to sell your products at a local farmers’ market, though you will likely have to pay a small fee to help cover the market’s costs. 

Q:       How will a garden benefit my community?

A:        Properly tended community gardens are easier on the eyes than unkempt vacant lots, and will provide air quality and health benefits to your community. In addition, studies have shown that the presence of community gardens helps to strengthen ties among the community, which, in turn, helps lower crime rates in their neighborhoods. 

                       

This “Law You Can Use” consumer information column was provided by the Ohio State Bar Association. It was prepared by Cleveland attorney Justin D. Stevenson, Esq. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.