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S. B. No. 107As Reported by the Senate Judiciary-Civil Justice CommitteeAs Reported by the Senate Judiciary-Civil Justice Committee
124th General Assembly | Regular Session | 2001-2002 |
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SENATORS Armbruster, Jacobson, Johnson, Blessing, Austria
A BILL
To amend sections 2307.60 and 2307.61 of the Revised
Code to reenact the changes to section 2307.60 of
the Revised Code that were enacted by Am. Sub.
H.B. 350 of the 121st General Assembly and amended
by Sub. H.B. 547 of the 122nd General
Assembly,
to
reenact the changes to section
2307.61 of the
Revised Code that were enacted by
Am. Sub. H.B.
350 of the 121st General Assembly,
and to retain
the amendments to that section as
made by Sub.
H.B. 294 of the 123rd General
Assembly.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2307.60 and 2307.61 of the Revised
Code be amended to read as follows:
Sec. 2307.60.
(A)
(A) Anyone injured in person or property
by a
criminal act has, and
may recover full damages in, a civil
action unless specifically excepted by
law, may recover the costs
of maintaining the civil action and attorney's fees
if authorized
by any provision of the Rules of Civil Procedure or another
section
of the Revised Code or under the common law of this state,
and may recover
punitive or exemplary damages if authorized by
section 2315.21 or another
section of the Revised Code.
A
A record
of a conviction, unless
obtained by confession in open court,
shall
not
not be used as evidence in a civil
action brought
pursuant to
division (A) of
division (A) of this section. (B)(1) As used in division (B) of this section:
(a) "Harm" means injury, death, or loss to person or
property.
(b) "Tort action" means a civil action for damages for
injury, death, or loss
to person or property other than a civil
action
for damages for a breach of contract or another agreement
between
persons "Tort action" includes, but is not limited to, a
product
liability claim, an action for wrongful death under
Chapter 2125.
of the Revised Code, and an action based on
derivative claims for relief.
(2) Recovery on a claim for relief in a tort action is
barred to any
person or the person's legal representative if the
person has been convicted
of or has pleaded guilty to a felony, or
to a misdemeanor
that is an offense of violence, arising out of
criminal conduct
that was a proximate cause of the injury or loss
for which relief is claimed
in the action.
(3) Division (B) of this section does not apply
to civil
claims based upon alleged intentionally tortious conduct, alleged
violations of the United States Constitution, or alleged
violations of statutes of the United States pertaining to civil
rights.
(B)(1) As used in division (B) of this section:
(a) "Harm" means injury, death, or loss to person or
property.
(b) "Tort action" means a civil action for damages for
injury, death, or loss to person or property other than a civil
action for damages for a breach of contract or another agreement
between persons. "Tort action" includes, but is not limited to, a
product liability claim, an action for wrongful death under
Chapter 2125. of the Revised Code, and an action based on
derivative claims for relief.
(2) Recovery on a claim for relief in a tort action is
barred to any person or the person's legal representative if the
person has been convicted of or has pleaded guilty to a felony, or
to a misdemeanor that is an offense of violence, arising out of
criminal conduct that was a proximate cause of the injury or loss
for which relief is claimed in the action.
(3) Division (B) of this section does not apply to civil
claims based upon alleged intentionally tortious conduct, alleged
violations of the United States Constitution, or alleged
violations of statutes of the United States pertaining to civil
rights.
Sec. 2307.61. (A) If a property owner brings a civil
action
pursuant to
division (A) of
division (A) of section 2307.60 of the
Revised Code to recover
damages from any person who willfully
damages the owner's
property or who commits a theft offense, as
defined in section
2913.01 of the Revised Code, involving the
owner's property, the
property owner may recover as follows: (1) In the civil action, the property owner may elect to
recover moneys as described in division (A)(1)(a) or (b) of this
section: (a) Compensatory damages that may include, but are not
limited to, the value of the property and liquidated damages in
whichever of the following amounts applies: (i) Fifty dollars, if the value of the property was fifty
dollars or less at the time it was willfully damaged or was the
subject of a theft offense; (ii) One hundred dollars, if the value of the property was
more than fifty dollars, but not more than one hundred dollars,
at
the time it was willfully damaged or was the subject of a
theft
offense; (iii) One hundred fifty dollars, if the value of the
property was more than one hundred dollars at the time it was
willfully damaged or was the subject of a theft offense. (b) Liquidated damages in whichever of the following
amounts
is greater: (ii) Three times the value of the property at the time it
was willfully damaged or was the subject of a theft offense,
irrespective of whether the property is recovered by way of
replevin or otherwise, is destroyed or otherwise damaged, is
modified or otherwise altered, or is resalable at its full market
price. This division does not apply to a check, negotiable order
of
withdrawal, share draft, or other negotiable instrument that
was returned or
dishonored for insufficient funds by a financial
institution if the check,
negotiable order of withdrawal, share
draft, or other negotiable instrument
was presented by an
individual borrower to a check-cashing business licensed
pursuant
to sections 1315.35 to 1315.44 of the Revised Code for a
check-cashing loan
transaction. (2) In a civil action in which the value of the property
that was willfully damaged or was the subject of a theft offense
is less than five thousand dollars, the property owner may
recover
damages as described in division (A)(1)(a) or (b) of this
section
and additionally may recover the reasonable
administrative costs,
if any, of the property owner that were
incurred in connection
with actions taken pursuant to division
(A)(2) of this section,
the cost of maintaining the civil action,
and reasonable
attorney's fees, if all of the following apply: (a) The property owner, at least thirty days prior to the
filing of the civil action, serves a written demand for payment
of
moneys as described in division (A)(1)(a) of this section and
the
reasonable administrative costs, if any, of the property
owner
that have been incurred in connection with actions taken
pursuant
to division (A)(2) of this section, upon the person who
willfully
damaged the property or committed the theft offense. (b) The demand conforms to the requirements of division
(C)
of this section and is sent by certified mail, return receipt
requested. (c) Either the person who willfully damaged the property
or
committed the theft offense does not make payment to the
property
owner of the amount specified in the demand within
thirty days
after the date of its service upon that person
and does not
enter
into an agreement with the property owner during that
thirty-day
period for that payment or the person who willfully
damaged the
property or committed the theft offense enters into
an agreement
with the property owner during that thirty-day
period for that
payment but does not make that payment in
accordance with the
agreement. (B) If a property owner who brings a civil action pursuant
to
division (A) of
division (A) of section 2307.60 of the Revised
Code to
recover damages for
willful damage to property or for a
theft offense attempts to
collect the reasonable administrative
costs, if any, of the
property owner that have been incurred in
connection with actions
taken pursuant to division (A)(2) of this
section, the cost of
maintaining the civil action, and reasonable
attorney's fees
under authority of that division and if the
defendant prevails in
the civil action, the defendant may recover
from the property
owner reasonable attorney's fees, the cost of
defending the civil
action, and any compensatory damages that may
be proven. (C) For purposes of division (A)(2) of this section, a
written demand for payment shall include a conspicuous notice to
the person upon whom the demand is to be served that indicates
all
of the following: (1) The willful property damage or theft offense that the
person allegedly committed; (2) That, if the person makes payment of the amount
specified in
the demand within thirty days after its service upon
the
person or
enters into an agreement with the property owner
during that
thirty-day period for that payment and makes that
payment in
accordance with the agreement, the person cannot be
sued by
the property owner in a civil action in relation to the
willful property damage or theft offense; (3) That, if the person fails to make payment of the amount
specified in the demand within thirty days after the date of its
service upon the person and fails to enter into an agreement for
that
payment with the property owner during that thirty-day period
or
enters into an agreement for that payment with the property
owner
during that thirty-day period but does not make that payment
in
accordance with the agreement, the person may be sued in a
civil action
in relation to the willful property damage or theft
offense; (4) The potential judgment that the person may be required
to pay if the person is sued in a civil action in relation to the
willful property damage or theft offense and judgment is rendered
against
the person in that civil action; (5) That, if the person is sued in a civil action by the
property owner in relation to the willful property damage or theft
offense, if the civil action requests that the person be
required
to pay
the reasonable administrative costs, if any, of the
property
owner that have been incurred in connection with actions
taken
pursuant to division (A)(2) of this section, the cost of
maintaining the action, and reasonable attorney's fees, and if
the
person prevails in the civil action, the person
may recover from
the property
owner reasonable attorney's fees, the cost of
defending the
action, and any compensatory damages that can be
proved. (D) If a property owner whose property was willfully
damaged
or was the subject of a theft offense serves a written
demand for
payment upon a person who willfully damaged the
property or
committed the theft offense and if the person makes
payment of the
amount specified in the demand within thirty days
after the date
of its service upon the person or the person enters into
an
agreement with the property owner during that thirty-day
period
for that payment and makes payment in accordance with the
agreement, the property owner shall not file a civil action
against the person in relation to the willful property damage or
theft offense. (E) If a property owner whose property was willfully
damaged
or was the subject of a theft offense serves a written
demand for
payment upon a person who willfully damaged the
property or
committed the theft offense and if the person, within
thirty days
after the date of service of the demand upon the
person, enters
into an agreement with the property owner for the payment
of the
amount specified in the demand but does not make that
payment in
accordance with the agreement, the time between the
entering of
the agreement and the failure to make that payment
shall not be
computed as any part of the period within which a
civil action
based on the willful property damage or theft
offense must be
brought under the Revised Code. (F) A civil action to recover damages for willful property
damage or for a theft offense may be joined with a civil action
that is brought pursuant to Chapter 2737. of the Revised Code to
recover the property. If the two actions are joined, any
compensatory damages recoverable by the property owner shall be
limited to the value of the property. (G)(1) In a civil action to recover damages for willful
property damage or for a theft offense, the trier of fact may
determine that an owner's property was willfully damaged or that
a
theft offense involving the owner's property has been
committed,
whether or not any person has pleaded guilty to or has
been
convicted of any criminal offense or has been adjudicated a
delinquent child in relation to any act involving the owner's
property. (2) This section does not affect the prosecution of any
criminal action or
proceeding or any action to obtain a delinquent
child
adjudication in connection with willful property damage or a
theft offense. (H) As used in this section: (1) "Administrative costs" includes the costs of written
demands for payment and associated postage under division (A)(2)
of this section. (2) "Value of the property" means one of the following: (a) The retail value of any property that is offered for
sale by a mercantile establishment, irrespective of whether the
property is destroyed or otherwise damaged, is modified or
otherwise altered, or otherwise is not resalable at its full
market price; (b) The face value of any check or other negotiable
instrument that is not honored due to insufficient funds in the
drawer's account, the absence of any drawer's account, or another
reason, and all charges imposed by a bank, savings and loan
association, credit union, or other financial institution upon
the
holder of the check or other negotiable instrument; (c) The replacement value of any property not described in
division (H)(1) or (2) of this section.
Section 2. That all existing versions of sections 2307.60 and
2307.61 of the Revised Code are hereby repealed.
Section 3. It is the intent of this act to reenact the
changes to section 2307.60 of the Revised Code that were enacted
by Am. Sub. H.B. 350 of the 121st General Assembly, 146 Ohio Laws
3867, and amended by Sub. H.B. 547 of the 122nd General Assembly,
147 Ohio Laws 4392. It is also the intent of this act to reenact
the changes to section 2307.61 of the Revised Code that were
enacted by Am. Sub. H.B. 350 of the 121st General Assembly, 146
Ohio Laws 3867, and retain the amendments to that section as made
by Sub. H.B. 294 of the 123rd General Assembly, 148 Ohio Laws
_____. This action is in conformity with the Supreme Court of
Ohio's decisions in
State, ex rel. Ohio Academy of Trial Lawyers
v. Sheward (1999), 86 Ohio St.3d 451, and
Stevens v. Ackman
(2001), 91 Ohio St.3d 182, and is intended to clarify the status
of the law.
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