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Are they asking for a change of venue, or are they asking for a dismissal because the court lacks jurisdiction?
change of venue, stating business is in Frankin county. Stating the Delaware Municipal court does not have jurisdiction over this matter.
Where was the contract signed?
my home in Delaware County
and we did send a fax to the magistrate requesting that the motion be denied.
OK. In Ohio, you must file the lawsuit: a) in the county where the defendant lives; or 2) in the county where the dispute occurred. Here, your best argument to defeat their motion to change venue is that the dispute occurred in your home county, the contract was signed there, the work took place there, and most of the witnesses and evidence is located in your county.
so its really up to the magistrate or judge to decide correct?
Yes. Since some of the acts related to this dispute took place in your county, there is evidence on both sides. That said, this seems fairly clear that you were within your right to file in your county. This seems more like a delay tactic than an argument with real merit. Even still, you should respond to it as if it were.
I couldn't agree more!! That was my first thought. this is what we sent: (in a nutshell to the magistrate):
Attn: Judge Magistrate
Today November 3,2013 we received a motion to change venue from the defendants , Counter Top Sales LLC, attorney.
We were instructed to file this particular claim in Delaware County as that is where we reside, where the agreement was entered into and where the cabinets were delivered.
Thank you for your consideration in this matter.
If this were a case I was litigating for a client, I would find some case law on point and provide that to the judge, as well.
Of course, his atty. did citing a case from 1977 a hospital v. supplier. I have nothing.
That is a really old case. Usually, if someone is citing a 35 year old case, that is because there isn't any recent law to support their position.
Do you have any questions?
No worries, the job started in February and all we asked was for a refund (in store credit) on things we never ordered, he never would get back to us. His sales person also ordered the wrong cabinets and was fired for this. we tried working with him so that we could finish the job. I am sure he wanted to file a counter claim (but didnt do so fast enough) on the remaining job that never was completed (because we didn't have countertops to install grantie on) even thought i attempted to call for weeks to have them finish. Despite this, nobody would call me back My point is that we have been patient for this long, if we need to refile in a different county, we will. Jerk.
I appreciate this thanks!
I wouldn't refile until the judge tells you that you have to. If that happens, you really aren't out anything, other than the inconvenience of having to refile and travel to another county.
thanks, XXXXX XXXXX we thought.
Have a great day!