fund doctrine in Ohio

2012Co., 150 Ohio App.3d 216 , 780 N.E.2d 290, ¶53-54 , citing Trustees v. Greenough, 105 U.S. 527, 537 , 26 L.Ed. 1157 (1881), and Smith v. Kroeger, 138 Ohio St. 508, 514-515 , 37 N.E.2d 45 (1941) (discussing common fund doctrine); and Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1194-1105 (6th Circ.1974), citing Mills v. Electric Auto-Lite Co., 396 U.S. 375 , 90 S.Ct. 616 , 24 L.Ed.2d 593 (1970) (discussing substantial benefit doctrine.) {¶42} The common fund doctrine allows a representative plaintiff who succeeds in creating or enlarging a fund to recover attorney fees from that fund.

2012Co., 150 Ohio App.3d 216 , 780 N.E.2d 290, ¶53-54 , citing Trustees v. Greenough, 105 U.S. 527, 537 , 26 L.Ed. 1157 (1881), and Smith v. Kroeger, 138 Ohio St. 508, 514-515 , 37 N.E.2d 45 (1941) (discussing common fund doctrine); and Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1194-1105 (6th Circ.1974), citing Mills v. Electric Auto-Lite Co., 396 U.S. 375 , 90 S.Ct. 616 , 24 L.Ed.2d 593 (1970) (discussing substantial benefit doctrine.) {¶42} The common fund doctrine allows a representative plaintiff who succeeds in creating or enlarging a fund to recover attorney fees from that fund.

1995Although the common fund doctrine has been accepted in Ohio as an exception to the American rule—see Smith v. Kroeger (1941), 138 Ohio St. 508 , 21 O.O. 386 , 37 N.E.2d 45 , shareholder action; Rocca v. Wilke (1977), 53 Ohio App.2d 8 , 7 O.O.3d 12 , 371 N.E.2d 223 , taxpayer class action for refund; In re Estate of Zonas (1989), 42 Ohio St.3d 8 , 536 N.E.2d 642 , action by beneficiaries of an estate—it has no application here.

1995Although the common fund doctrine has been accepted in Ohio as an exception to the American rule—see Smith v. Kroeger (1941), 138 Ohio St. 508 , 21 O.O. 386 , 37 N.E.2d 45 , shareholder action; Rocca v. Wilke (1977), 53 Ohio App.2d 8 , 7 O.O.3d 12 , 371 N.E.2d 223 , taxpayer class action for refund; In re Estate of Zonas (1989), 42 Ohio St.3d 8 , 536 N.E.2d 642 , action by beneficiaries of an estate—it has no application here.

2014Montgomery No. 25568, 2013-Ohio-2760, ¶ 6 , citing Blakemore v. Blakemore, 5 Ohio St.3d 4 217, 219 , 450 N.E.2d 1140 (1983). {¶ 8} R.C. 2735.01, which governs the appointment of receivers, provides that a receiver may be appointed by the court of common pleas or a judge thereof in his or her county, in the following cases: (A) In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject project or a fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of a party whose

2010“The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219 , 5 OBR 481, 450 N.E.2d 1140 . {¶ 22} In denying the Fund’s motion, the trial court held: The court finds that the new claims which Plaintiff seeks to assert against Defendant Baker & Hostetler LLP are essentially identical to the issues contained in the plaintiffs original complaint.

2015Montgomery No.25879, 2014-Ohio-1451, ¶ 6-7 . {¶ 29} R.C. 2735.01, which governs the appointment of a receiver, provides as follows: A receiver may be appointed by * * * the court of common pleas or a judge thereof in his county * * * in the following cases: (A) In an action * * * by a creditor to subject property or a fund to his claim, * * * on the application of the plaintiff, or of a party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and when it is shown that the property or fund is in danger of being lost, removed, or materially injured; *** -27

2014The common fund doctrine provides that "'a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole.'" US Airways, Inc. v. McCutchen, __ U.S. __, 133 S.Ct. 1537, 1545 (2013), quoting Boeing Co. v. Van Gemert, 444 U.S. 472, 478 , 100 S.Ct. 745 (1980).

2014The common fund doctrine provides that "'a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole.'" US Airways, Inc. v. McCutchen, __ U.S. __, 133 S.Ct. 1537, 1545 (2013), quoting Boeing Co. v. Van Gemert, 444 U.S. 472, 478 , 100 S.Ct. 745 (1980).

2014Montgomery No. 25568, 2013-Ohio-2760, ¶ 6 , citing Blakemore v. Blakemore, 5 Ohio St.3d 4 217, 219 , 450 N.E.2d 1140 (1983). {¶ 8} R.C. 2735.01, which governs the appointment of receivers, provides that a receiver may be appointed by the court of common pleas or a judge thereof in his or her county, in the following cases: (A) In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject project or a fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of a party whose

2012Co., 150 Ohio App.3d 216 , 780 N.E.2d 290, ¶53-54 , citing Trustees v. Greenough, 105 U.S. 527, 537 , 26 L.Ed. 1157 (1881), and Smith v. Kroeger, 138 Ohio St. 508, 514-515 , 37 N.E.2d 45 (1941) (discussing common fund doctrine); and Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1194-1105 (6th Circ.1974), citing Mills v. Electric Auto-Lite Co., 396 U.S. 375 , 90 S.Ct. 616 , 24 L.Ed.2d 593 (1970) (discussing substantial benefit doctrine.) {¶42} The common fund doctrine allows a representative plaintiff who succeeds in creating or enlarging a fund to recover attorney fees from that fund.

2012Co., 150 Ohio App.3d 216 , 780 N.E.2d 290, ¶53-54 , citing Trustees v. Greenough, 105 U.S. 527, 537 , 26 L.Ed. 1157 (1881), and Smith v. Kroeger, 138 Ohio St. 508, 514-515 , 37 N.E.2d 45 (1941) (discussing common fund doctrine); and Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1194-1105 (6th Circ.1974), citing Mills v. Electric Auto-Lite Co., 396 U.S. 375 , 90 S.Ct. 616 , 24 L.Ed.2d 593 (1970) (discussing substantial benefit doctrine.) {¶42} The common fund doctrine allows a representative plaintiff who succeeds in creating or enlarging a fund to recover attorney fees from that fund.

2012See Mills, 396 U.S. 375 ; Abrams v. Siegel, 166 Ohio App.3d 230 , 2006-Ohio-1728 , 850 N.E.2d 99 .

2012See Mills, 396 U.S. 375 ; Abrams v. Siegel, 166 Ohio App.3d 230 , 2006-Ohio-1728 , 850 N.E.2d 99 .

2012Co., 150 Ohio App.3d 216 , 780 N.E.2d 290, ¶53-54 , citing Trustees v. Greenough, 105 U.S. 527, 537 , 26 L.Ed. 1157 (1881), and Smith v. Kroeger, 138 Ohio St. 508, 514-515 , 37 N.E.2d 45 (1941) (discussing common fund doctrine); and Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1194-1105 (6th Circ.1974), citing Mills v. Electric Auto-Lite Co., 396 U.S. 375 , 90 S.Ct. 616 , 24 L.Ed.2d 593 (1970) (discussing substantial benefit doctrine.) {¶42} The common fund doctrine allows a representative plaintiff who succeeds in creating or enlarging a fund to recover attorney fees from that fund.

2012Co., 150 Ohio App.3d 216 , 780 N.E.2d 290, ¶53-54 , citing Trustees v. Greenough, 105 U.S. 527, 537 , 26 L.Ed. 1157 (1881), and Smith v. Kroeger, 138 Ohio St. 508, 514-515 , 37 N.E.2d 45 (1941) (discussing common fund doctrine); and Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1194-1105 (6th Circ.1974), citing Mills v. Electric Auto-Lite Co., 396 U.S. 375 , 90 S.Ct. 616 , 24 L.Ed.2d 593 (1970) (discussing substantial benefit doctrine.) {¶42} The common fund doctrine allows a representative plaintiff who succeeds in creating or enlarging a fund to recover attorney fees from that fund.

2010And “ ‘[i]n Ohio, the applicable statute of limitations is determined not from the form of pleading or procedure, but from the gist of the complaint.’ ” Leski, ¶ 10, quoting Hibbett v. Cincinnati (1982), 4 Ohio App.3d 128, 131 , 4 OBR 220, 446 N.E.2d 832 . {¶ 25} Moreover, the Fund’s motion to amend its complaint was untimely and prejudicial.

2010And “ ‘[i]n Ohio, the applicable statute of limitations is determined not from the form of pleading or procedure, but from the gist of the complaint.’ ” Leski, ¶ 10, quoting Hibbett v. Cincinnati (1982), 4 Ohio App.3d 128, 131 , 4 OBR 220, 446 N.E.2d 832 . {¶ 25} Moreover, the Fund’s motion to amend its complaint was untimely and prejudicial.

2009Id. {¶ 15} Similarly, we find that Ortiz was denied further treatment for his left wrist sprain because the hearing officer determined there was no need for treatment.

2009Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69 , 73 , stated the following regarding appellate review of decisions involving motions to appoint a receiver: "It has long been recognized that the trial court is vested with sound discretion to appoint a receiver. `The question of whether or not a receiver will be appointed in a given case is addressed to the sound discretion of the court under all the circumstances.' "*** "`A court in exercising its discretion to appoint or refuse to appoint a receiver must take into account all the circumstances and facts of the case, the presence of conditions an

2009Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69 , 73 , stated the following regarding appellate review of decisions involving motions to appoint a receiver: "It has long been recognized that the trial court is vested with sound discretion to appoint a receiver. `The question of whether or not a receiver will be appointed in a given case is addressed to the sound discretion of the court under all the circumstances.' "*** "`A court in exercising its discretion to appoint or refuse to appoint a receiver must take into account all the circumstances and facts of the case, the presence of conditions an

2005Jamestown Village Condominium Owners Assn. v. Market Media Research, Inc. (1994), 96 Ohio App.3d 678 , 689 . {¶ 28} R.C. 2735.01 , appointment of receiver, states the follo wing: "A receiver may be appointed by the supreme court or a judge thereof, the court of appeals or a judge thereof in his district, the court of common pleas or a judge thereof in his county, or the probate court, in causes pending in such courts respectively, in the following cases: "(A) In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject property or a fund to his claim, or be

2002R.C. 2735.01 authorizes the appointment of a receiver and states in relevant part: A receiver may be appointed by the supreme court or a judge thereof, the court of appeals or a judge thereof in his district, the court of common pleas or a judge thereof in his county, or the probate court, in causes pending in such courts respectively, in the following cases: (A) In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject property or a fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application

1995Although the common fund doctrine has been accepted in Ohio as an exception to the American rule—see Smith v. Kroeger (1941), 138 Ohio St. 508 , 21 O.O. 386 , 37 N.E.2d 45 , shareholder action; Rocca v. Wilke (1977), 53 Ohio App.2d 8 , 7 O.O.3d 12 , 371 N.E.2d 223 , taxpayer class action for refund; In re Estate of Zonas (1989), 42 Ohio St.3d 8 , 536 N.E.2d 642 , action by beneficiaries of an estate—it has no application here.

1995Although the common fund doctrine has been accepted in Ohio as an exception to the American rule—see Smith v. Kroeger (1941), 138 Ohio St. 508 , 21 O.O. 386 , 37 N.E.2d 45 , shareholder action; Rocca v. Wilke (1977), 53 Ohio App.2d 8 , 7 O.O.3d 12 , 371 N.E.2d 223 , taxpayer class action for refund; In re Estate of Zonas (1989), 42 Ohio St.3d 8 , 536 N.E.2d 642 , action by beneficiaries of an estate—it has no application here.

1988Finally, in Akron-Canton Chapter, American Subcontractor Assn. v. Dept. of Adm. Services (1984), 21 Ohio App. 3d 6 , 21 OBR 7, 486 N.E. 2d 116 , it was held that an attorney’s efforts which had caused a savings to an administrative agency did not create a common fund.

1988Finally, in Akron-Canton Chapter, American Subcontractor Assn. v. Dept. of Adm. Services (1984), 21 Ohio App. 3d 6 , 21 OBR 7, 486 N.E. 2d 116 , it was held that an attorney’s efforts which had caused a savings to an administrative agency did not create a common fund.

1934In the Gardiner case, supra, the court held that the relationship of debtor and creditor existed as to the fund on which a claim was made for preference and the court finds “no distinction between this case and the case of McDonald v. Fulton, Supt. of Banks.” In the case of Kuehnle Co. v. Fulton, 45 Ohio App., 386 , 39 O.