Lucy-More info on Ohio case that we thought was SOL
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Posted by Orangedog
(126.96.36.199) on September 24, 2002 at 00:06:12:
Remember the Camco case in Ohio that we thought was dismissed on the SOL...well I pulled the case file today and it turns out that it was not an SOL issue. It would appear that the defendant's lawyer rather deftly hung the camco lawyer out to twist in the wind based on rules of civil procedure. He sites statutes AND case law! Nothing here to help back up an SOL defense, but if all of camco's cases that they file are this poorly exhibited, it's a good slam-dunk if you know what ruling to site. Here is the meat and potatos of the defendant's motion and memorandum in support:
Now comes Defendant by and through counsel who, persuant to civil rule 12(E) moves this court for a motion to make the Plaintiff's complaint more definite and certain.
MEMORANDUM IN SUPPORT:
Plaintiff has filed a complaint against the Defendant which appears to be an action upon an account.
At paragraph no. 2 of said complaint, Plaintiff alleges that "said account is attached hereto as Exhibit A."
However, Exhibit A is nothing more than an affidavit from a Reese Waugh who alleges that "he is familliar with the account...and said account shows a balance due of $2191.83 with interest at 10% per annum from date of judgement until paid in full."
There is no book account, nor any other accounting contained within Plaintiff's complaint or the attachment. Furthermore, there is no evidence that Defendant ever signed any agreement that would allow the charging of interest, which is required in this state.
Even the most liberal reading of Cival Rule 8 makes this complaint wholly deficient. There is no listing of either the account, the date of account, or how the Plaintiff arrived at the total.
Defendant is unable to file a responsive pleading to this vague and ambiguous complaint and accordingly asks for an order that the Plaintiff make his allegations more definte and certain pursuant to Rule 12(E).
Jack E. McCormick.....yadda yadda yadda.
The Defendant's lawyer originally filed a motion to strike Camco's complaint, and that was the one that sited case law. Like an absent minded fool, I didn't copy that one.
Here is the text of civil Rule 8:
(B) A default by a defending party is an admission of all allegations in the complaints except damages. Civil Rule 8(D). For cases based on an account, the plaintiff is required to show, in the complaint or otherwise, that there have been no subsequent payments or credits on the account. For all other motions for default, proof of damages is required. Depending upon the specific nature of the case, proof may be provided to the Court by testimony or affidavit. Uncertified documents, not accompanied by an affidavit or testimony, may not be considered proof of damages. The affidavit must be executed by a person with personal knowledge of the contents of the affidavit. An attorney for the moving party may not be the affiant for an affidavit for proof of damages. If there are multiple damages, a listing of all damages and credits, if any, should be filed with the Court to expedite the default proceeding, either as part of the motion for default, exhibit, or by separate document.
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