Stickovich v. Cleveland , 143 Ohio App. 3d 13 ( 2001 )

The holding of the majority opinion is very narrow: Commercial Union waived the right to assert the affirmative defense of illegality because it did not raise the defense in its answer to the city's third-party complaint. Ante at 14-15.

I disagree with this conclusion, being of the opinion that R.C. 2305.31 and Buckeye Union Insurance Co. v. Zavarella Brothers Construction Co. (1997), 121 Ohio App. 3d 147, would render the contract void ab initio, and that we should not apply the waiver rule to give vitality to an otherwise void contract. Obviously, I disagree with the discussion in pages 16-56 of the majority opinion. I am compelled to point out that the majority's discussion is dicta in its purest form, being wholly unnecessary to the very narrow point of law — the waiver issue — that forms the basis for the majority's resolution of the case.