Statute of Limitations for Commercial Property Damamge

[mkathyf]

Highland Heights, Ohio

How long do I have, after the incident, to file a small claims suit to a tenant who did damage to a commercial door?
I tried to get him to pay but he claims it is not his fault. Then Covid hit and courts were closed. Now I want to revisit this. The repairs exceeded $3000.00.

Also, I read on the Lyndhurst small claims website that an LLC (which we are) needs to have a lawyer...but, then also mentioned that if I represented myself I couldn't ask defendant questions. So, do I need an attorney or not?

 

[Just Blue]

Highland Heights, Ohio

How long do I have, after the incident, to file a small claims suit to a tenant who did damage to a commercial door?
I tried to get him to pay but he claims it is not his fault. Then Covid hit and courts were closed. Now I want to revisit this. The repairs exceeded $3000.00.

Also, I read on the Lyndhurst small claims website that an LLC (which we are) needs to have a lawyer...but, then also mentioned that if I represented myself I couldn't ask defendant questions. So, do I need an attorney or not?

We have a site vetted Ohio Attorney that volunteers here. I will tag @Ohiogal to assist you.

 

[Zigner]

Highland Heights, Ohio

How long do I have, after the incident, to file a small claims suit to a tenant who did damage to a commercial door?
I tried to get him to pay but he claims it is not his fault. Then Covid hit and courts were closed. Now I want to revisit this. The repairs exceeded $3000.00.

Also, I read on the Lyndhurst small claims website that an LLC (which we are) needs to have a lawyer...but, then also mentioned that if I represented myself I couldn't ask defendant questions. So, do I need an attorney or not?

If you (the LLC) are going to sue then yes, you (the LLC) will need an attorney.

 

[LdiJ]

Highland Heights, Ohio

How long do I have, after the incident, to file a small claims suit to a tenant who did damage to a commercial door?
I tried to get him to pay but he claims it is not his fault. Then Covid hit and courts were closed. Now I want to revisit this. The repairs exceeded $3000.00.

Also, I read on the Lyndhurst small claims website that an LLC (which we are) needs to have a lawyer...but, then also mentioned that if I represented myself I couldn't ask defendant questions. So, do I need an attorney or not?

Is this a commercial tenant? If so, was the damage to his unit? If so, what does the commercial lease say about those kinds of damage?

If its not a commercial tenant please give some more details of the situation.

 

[Zigner]

I'd like to be clear here. You (mkathyf) cannot complete the forms and/or file a case in small claims court on behalf of the LLC. To do so would be the unlawful practice of law (a crime). You need an attorney.

 

[mkathyf]

Is this a commercial tenant? If so, was the damage to his unit? If so, what does the commercial lease say about those kinds of damage?

If its not a commercial tenant please give some more details of the situation.

My husband owns some airplane hangars. The tenant was renting this particular hangar and one of his employees pushed the lever to open the door and then walked to the other side of the hangar to get some tools and left the door unsupervised while opening. It somehow went off track and caused a lot of damage. The lease specifically states that they are responsible for damage to the door due to negligence. The operating lever also has a sign on it that states that the operator must remain at the lever while operating the door. The open/close with large cables; which sometimes can get close and overlap...that is why they need to be present.
The tenant (who is no stranger to litigation) claims that it was a result of us not properly maintaining the door. Two months prior we had annual door maintenance done to all hangars. And, one month prior, his cables were adjusted.

 

[PayrollHRGuy]

The tenant (who is no stranger to litigation) claims that it was a result of us not properly maintaining the door. Two months prior we had annual door maintenance done to all hangars. And, one month prior, his cables were adjusted.

I tend to agree that your husband has some if not all liability in this. Expecting an electric door to stop when it reaches the top is not negligence.

 

[Zigner]

I tend to agree with the tenant on this one (based on the limited information you have provided). The fact that the door ran off the track is not the tenant's fault. Even if he were right at the lever, it would still have run off the track. It sounds like you have a door problem, not a tenant problem.

EDIT: Damage to the door due to negligence would be something like driving a cart in to the closed door, or closing the door while an obstacle is present. Expecting the door to operate normally along its tracks without coming out of those tracks is not "negligence"

 

[Just Blue]

My husband owns some airplane hangars. The tenant was renting this particular hangar and one of his employees pushed the lever to open the door and then walked to the other side of the hangar to get some tools and left the door unsupervised while opening. It somehow went off track and caused a lot of damage. The lease specifically states that they are responsible for damage to the door due to negligence. The operating lever also has a sign on it that states that the operator must remain at the lever while operating the door. The open/close with large cables; which sometimes can get close and overlap...that is why they need to be present.
The tenant (who is no stranger to litigation) claims that it was a result of us not properly maintaining the door. Two months prior we had annual door maintenance done to all hangars. And, one month prior, his cables were adjusted.

I agree with the others. Did you submit this to your insurance company?

 

[zddoodah]

How long do I have, after the incident, to file a small claims suit to a tenant who did damage to a commercial door?

"Except as provided in division (C) or (E) of this section, an action based on a product liability claim and an action for bodily injury or injuring personal property shall be brought within two years after the cause of action accrues. Except as provided in divisions (B)(1), (2), (3), (4), and (5) of this section, a cause of action accrues under this division when the injury or loss to person or property occurs." ORC 2305.10.

Alternatively, if this is considered trespass to real property, it's four years under ORC 2305.09.

Also, I read on the Lyndhurst small claims website that an LLC (which we are) needs to have a lawyer...but, then also mentioned that if I represented myself I couldn't ask defendant questions. So, do I need an attorney or not?

If the plaintiff is an individual, he/she may represent him/herself. If the plaintiff is an artificial entity such as an LLC or a corporation, then the plaintiff must be represented by an attorney (the notion that it is a crime for the owner of an LLC to file on the LLC's behalf is absurd, but the case will (or should be) dismissed if the plaintiff fails to obtain counsel).

Expecting an electric door to stop when it reaches the top is not negligence.

I don't disagree. However, not staying by the lever and monitoring the situation when there's a sign that expressly instructs the operator to do that may be.

 

[adjusterjack]

I agree with the others.

So do I. The damage was caused by an inherent issue with the door operation.

Did you submit this to your insurance company?

Mechanical malfunction would not be covered by the Commercial Property form unless optional Equipment Breakdown coverage was purchased.

However, not staying by the lever and monitoring the situation when there's a sign that expressly instructs the operator to do that may be.

If leaving was the proximate cause of the damage that would be so. If the mechanical malfunction occurred regardless of the operator's presence or absence, then it's not negligence.

Could be a product defect or installation defect if OP wants to pursue that avenue of inquiry.

 

[Zigner]

If leaving was the proximate cause of the damage that would be so. If the mechanical malfunction occurred regardless of the operator's presence or absence, then it's not negligence.

Agreed - those precautions are intended to prevent the door from injuring somebody (mostly) or damaging property. Had the door closed on somebody, causing injury, or had the door closed on something, causing damage, then the operator and/or the tenant would be responsible.

 

[adjusterjack]

Also, I read on the Lyndhurst small claims website that an LLC (which we are) needs to have a lawyer...but, then also mentioned that if I represented myself I couldn't ask defendant questions. So, do I need an attorney or not?

Small claims courts generally do not involve cross examination. It's the judge who asks questions of the parties. Assuming that you and your husband are members or employees of the LLC you would not need an attorney to just file and present your case.

If the plaintiff is an artificial entity such as an LLC or a corporation, then the plaintiff must be represented by an attorney...the case will (or should be) dismissed if the plaintiff fails to obtain counsel).

Nope.

I'm surprised, Z, you usually get this stuff right.

Chapter 1925 Small Claims Divisions
1925.17 Corporation as party.
A corporation which is a real party in interest in any action in a small claims division may commence such an action and appear therein through an attorney at law. Such a corporation may, through any bona fide officer or salaried employee, file and present its claim or defense in any action in a small claims division arising from a claim based on a contract to which the corporation is an original party or any other claim to which the corporation is an original claimant, provided such corporation does not, in the absence of representation by an attorney at law, engage in cross-examination, argument, or other acts of advocacy.

In 2005 the Ohio Supreme Court applied the statute to LLCs:

"In summary, we hold that a layperson who presents a claim or defense and appears in small claims court on behalf of a limited liability company as a company officer does not engage in the unauthorized practice of law, provided that the layperson does not engage in cross-examination, argument, or other acts of advocacy. "

http://www.sconet.state.oh.us/rod/docs/pdf/0/2005/2005-Ohio-4107.pdf

 

[zddoodah]

Nope.

I'm surprised, Z, you usually get this stuff right.

I unfortunately overlooked that we were talking about small claims court (as, I presume, did the person who suggested it might be a crime).

 

[quincy]

I unfortunately overlooked that we were talking about small claims court (as, I presume, did the person who suggested it might be a crime).

The only crime mentioned was “UPL.”