IN THE SUPREME COURT OF OHIO MEMORANDUM IN SUPPORT OF PEREMPTORY WRIT OF PROHIBITION SUMMARY

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1 IN THE SUPREME COURT OF OHIO EVEREST INDEMNITY INSURANCE : SUPREME COURT CASE CO., NO. 0 7 Relator, vs. HONORABLE LEE SINCLAIR Stark County Common Pleas Court Respondent. F [^L E- D DEC CLFP6( OF COURT SUPHM COUfiT OP OHIO MEMORANDUM IN SUPPORT OF PEREMPTORY WRIT OF PROHIBITION SUMMARY This action is necessitated by Respondent's refusal to cease exercising jurisdiction over a case after Relator filed a self-effectuating Civ.R. 41(A)(1) Notice of Dismissal ("Voluntary Dismissal"). Instead of accepting that the case was already terminated and dismissed once the Voluntary Dismissal was filed, Respondent - who previously awarded the Interested Party in the dismissed case more than $52 Million following a liability default judgment in an underlying lawsuit - wrongfully continues to exercise jurisdiction over Relator's dismissed case. The only purported basis for Respondent's "rejection" of the Voluntary Dismissal was that Relator's lead counsel Attorney Stephen Brown, a Michigan licensed attorney, who signed and filed the Dismissal on behalf of Relator, was not separately admitted pro hac vice by Respondent to practice in the Stark County Court of Common Pleas despite Respondent not providing notice to Attorney Brown or Realtor's duly noted Ohio licensed counsel that separate 1

2 pro hac vice admission was required. Significantly, the case in which Attomey Brown filed the Voluntary Dismissal was initially filed in the Lake County Court of Common Pleas, where it was pending for almost five months before venue was transferred to Stark County. While the case was pending in Lake County, Judge Culotta of the Lake County Court of Common Pleas duly admitted Attorney Brown to appear pro hac vice to represent Relator in the declaratory judgment action through a July 6, 2007 Judgment Entry. The Judgment Entry admitting Attorney Brown to practice pro hac vice itself was transferred and remained in effect when the case was transferred to Stark County, just like all of the other orders or entries issued by Judge Culotta while the action was pending in Lake County. When Attorney Brown filed the self-effectuating Voluntary Dismissal, the case was immediately terminated in accordance with well established Ohio law without any further action required or permitted by Respondent.l From that point forward, Respondent was patently and unequivocally divested of jurisdiction to "reject" or otherwise refuse to acknowledge the Voluntary Dismissal. However, Respondent continues to wrongfully exercise jurisdiction over the matter. A peremptory writ should issue forthwith prevailing upon Respondent to cease exercising jurisdiction over the dismissed case retroactive to November 2, STATEMENT OF FACTS On June 13, 2007, Respondent entered a Final Judgment in a case captioned Joshua Doepker v. Willo Security, Inc. and Kevin A. Johnson, Stark County Court of Common Pleas, Case No CV ("Doepker Lawsuit").Z In the Final Judgment, Respondent awarded 1 Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 126; Sturm v. Sturnz (1992), 63 Ohio St.3d 671, citing with approval Goldstein v. Goldstein (1988), 50 Ohio App.3d 4, and Clay Hyder Trucking Lines, Inc. v. Riley (1984), 16 Ohio App.3d 224; Selker & Furber v. Brightrnan (2000), 138 Ohio App.3d See Affidavit of Stephen P. Brown ("Brown Affidavit"), Paragraphs 4-6, and Exhibit A thereto. 2

3 Joshua Doepker damages on a previous liability default judgment in the amount of Fifty-Two Million, Four Hundred Eiglit Thousand, Six Hundred Seventeen Dollars ($52,408,617.00).3 The Fifty-Two Million plus award was entered jointly and severally against the defendants in that case, Willo Security, Inc. and Kevin Johnson.4 Relator issued two liability insurance policies to Willo.5 A week earlier, on June 6, 2007, Relator filed an action in the Lake County Com-t of Common Pleas seeking a declaratory judgment that Relator was not obligated to indenurify Willo Security or Johiison in the event of an adverse judgment against them in favor of Interested Party Doepker principally due to Willo Security's failure to satisfy certain unambiguous preconditions to coverage, along with other tenns and conditions in the Everest insurance policies ("Declai-atory Judgment L.awsuit").6 Relator's Complaint for Declaratory Judgment was signed by Amelia A. Bower, Esq., a licensed Ohio Attorney practicing in the Columbus office of Plunkett Cooney. 7 Shortly after Relator filed the Complaint for Declaratory Judgment, Attorney Bower filed a motion for admission pro hac vice of Stephen P. Brown, Esq., an attorney licensed in the State of Michigan practicing in Plunkett Cooney's Bloomfield Hills, Michigan office.8 No party objected to or opposed Attorney Brown's Motion for Admission pro hac vice, which was accompanied by an Affidavit and Certificate of Good Standing from the State Bar of Michigan.9 On July 6, 2007, Judge Vincent Culotta of the Lake County Court of Common Pleas executed a Judgment Entry granting the motion for admission pro hac vice of Attorney Stephen 3 See Brown Affidavit, Paragraph 6, and Exhibit A thereto. ' See Brown Affidavit, Paragraph 6, and Exhibit A thereto. 5 See Brown Affidavit, Paragraph 7. 6 See Brown Affidavit, Paragraph 8, and Exhibit B thereto. 7 See Brown Affidavit, Paragraph 8, and Exhibit B thereto. 8 See Brown Affidavit, Paragraph 9, and Exhibit C thereto. 9 See Brown Affidavit, Paragraph 10, and Exhibit D thereto. 3

4 Brown.10 Judge Culotta's Order provided: "IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that Stephen P. Brown be admitted Pro Hac Vice to represent Everest Indernnity Insurance Company in this matter."" Pursuant to the Judgment Entry admitting Attomey Brown pro hac vice, Attorney Brown signed and filed no fewer than three briefs in the Declaratory Judgment Action on behalf of Relator, without objection from any party as to Attorney Brown's signature and filing.12 In August 2007, the Defendants and Interested Party in the Declaratory Judgment Lawsuit - Willo Security, Johnson, and Doepker - moved to change venue of the action to Stark County in lieu of filing Answers to the Complaint. Relator opposed the motion to transfer venue, as its named insured, Willo Security tnaintained its principal place of business in Lake County. Nevertheless, over Relator's objection, the Lake County Court granted the motion to change venue by Judgment Entry dated October 30, Pursuant to the Judgment Entry transferring venue, all pleadings and papers in the Declaratory Judgment Lawsuit filed in Lake County were transferred to the Stark County Court of Common Pleas on November 1, Included in the original papers transferred by the Lake County Clerk of Courts was the July 6, 2007 Judgment Entry granting Attorney Stephen Brown's admission pro hac vice to represent Relator "in this matter."15 On November 2, the day after he received the Judgment Entry transferring venue - Attorney Brown signed and filed with the Stark County Clerk of Courts a Civ.R. 41(A)(1)(a) 10 See Brown Affidavit, Paragraph 11, and Exhibit E thereto. 11 See Brown Affidavit, Paragraph 11, and Exhibit E thereto. 12 See Brown Affidavit, Paragraph See Brown Affidavit, Paragraph 13, and Exhibit F thereto. 14 See Brown Affidavit, Paragraph 14, and Exhibit G thereto. 15 See Brown Affidavit, Paragraph 15, and Exhibit G thereto. 4

5 Notice of Dismissal in order to dismiss the Declaratory Judgment Lawsuit.16 At the time he signed the Voluntary Dismissal and in the absence of an order, instruction or direction to the contrary by the Stark County Court of Common Pleas, Attorney Brown held an objectively reasonable belief that he was one of Relator's "attorney(s) of record" within the meaning of Civ.R Upon filing Relator's Civ.R. 41(A)(1)(a) Dismissal, the Declaratory Judgment Lawsuit was automatically terminated and the Stark County Court of Common Pleas had no jurisdiction to take any further action with respect to the Declaratory Judgment Lawsuit. Meanwhile, the Stark County Clerk of Courts memorialized its receipt of the certified transcript of docket and joumal entries, accompanied by the original papers and pleadings, from the Lake County Clerk of Courts on November 5, Upon the Stark County Clerk of Court's receipt of the Declaratory Judgment Lawsuit, it was assigned Case No 2007 CV 04507, and assigned to Respondent. In point of fact, however, the Decalratory Judgment Lawsuit should not have been assigned to any judge, but instead identified as dismissed. This is confilined by reference to the Starlc Common Pleas Courts - Civil Docket, which identifies the Notice of Dismissal as having been entered on November 6, Since Relator had already filed a self-effectuating Voluntary Dismissal, Respondent never acquired jurisdiction to enter any orders or take any action whatsoever in the transferred Declaratory Judgment Lawsuit even if permitted to do so. Nevertheless, Respondent - who had already awarded lnterested Party Doepker a $52 Million plus judgrnent on the heels of a liability default judgment - refused to accept Relator's dismissal of its action in which Relator claimed that the Everest insurance policies did not cover any portion of the $52 Million plus underlying 16 See Brown Affidavit, Paragraph 16, and Exhibit H thereto. 17 See Brown Affidavit, Paragraph See Brown Affidavit, Paragraph 17, and Exhibit G thereto. 19 See Brown Affidavit, Paragraph 18, and Exhibit G thereto. 5

6 Judgment. Instead, at the urging of Doepker's and Willo's counsel and without affording Relator an opportunity to respond to the dismissal "objection,"20 Respondent entered a November 8 Judgment Entry declaring that he was "rejecting" the Voluntary Dismissal on the grounds that Respondent had not separately admitted Attomey Brown to practice in Stark County. Not only did Respondent enter such Judgment Entry after the Voluntary Dismissal was filed and docketed, he did so without providing any notice whatsoever to Attorney Brown or Relator's duly noted and licensed Ohio counsel that Attomey Brown needed to separately seek pro hac vice admission before Respondent.21 On November 7, the day before Respondent entered his Judgment Entry "rejecting" the Voluntary Dismissal -- Interested Party Doepker filed an Answer and Counterclaim against Relator and Crossclaim.22 Doepker's Counterclaim asserted a cause of action based on the Supplemental Complaint statute, R.C even though Doepker had already filed a Supplemental Complaint months earlier in Stark County seeking identical relief.24 That Supplemental Complaint was removed by Relator to federal court, where it is still pending.25 Also on November 8, 2007, Defendants Willo Security and Johnson filed an Answer and Counterclaim against Relator,26 along with a "Motion to Strike" Relator's Voluntary Dismissal.Z7 Like Doepker's "objection", the "Motion to Strike" urged Respondent to "strike" the self-effectuating Voluntary Dismissal on the grounds that Attorney Brown was not separately admitted pro hac vice by the Stark County Court of Common Pleas - in spite of the fact that 20 See Brown Affidavit, Paragraph 20, and Exhibit I thereto. 21 See Brown Affidavit, Paragraph 24, and Exhibit M thereto. 22 See Brown Affidavit, Paragraph 22, and Exhibit J thereto. 23 See Brown Affidavit, Paragraphs 21-22, and Exhibit J thereto. 24 See Brown Affidavit, Paragraph 22, and Exhibit IC thereto. 25 See Brown Affidavit, Paragraph 23, and Exhibit L thereto. 26 See Brown Affidavit, Paragraph 25, and Exhibit N thereto. 27 See Brown Affidavit, Paragraph 25, and Exhibit 0 thereto. 6

7 Common Pleas Judge Culotta admitted Attomey Brown pro hac vice to represent Relator "in this matter", and the July 6, 2007 Judgment Entry admitting Attorney Brown pro hac vice was transferred to the Stark County Court of Common Pleas. It is presumed that the sole purpose behind the Counterclaim filings is to prevent Relator from re-filing a Civ.R. 41(A)(1)(a) voluntary dismissal or seeking a court approved dismissal, as provided in Civ.R. 41(A)(1)(b), since dismissals are restricted if a counterclaim, which camiot remain pending for independent adjudication has been filed. LAW & ARGUMENT It is beyond dispute that Relator held an absolute right to dismiss the Declaratory Judgment Lawsuit pursuant to Civ.R. 41(A)(1).28 Relator did precisely that on November 2, Upon filing the Voluntary Dismissal, no case remained pending before the Stark County Court and Respondent was without jurisdiction to modify, reject, refuse or otherwise act upon the Dismissal.Z9 Ful-fhelmore, voluntary dismissals filed pursuant to Civ.R. 41(A)(1) are self-executing and do not require or permit any court action to make thern effective. In Selker & Furber v. Brightman (2000), 138 Ohio App.3d 70, the Court noted: It is axiomatic that "Dismissals pursuant to Civ.R. 41(A)(1) are fully and completely effectuated upon filing of notice of the voluntary dismissal by the plaintiff. In other words, the mere filing of the notice of dismissal by the plaintiff automatically terminates the case without intervention by the court."30 Respondent's purported basis for continuing to exercise jurisdiction after the Voluntary Dismissal was filed is patently unfounded. Lake County Common Pleas Judge Culotta's Judgment Entry admitting Attorney Brown pro hac vice to represent Relator in the Declaratory 28 Sturm v. Sturm (1992), 63 Ohio St.3d 671, citing with approval Goldstein v. Goldstein (1988), 50 Ohio App.3d 4, and Clay Hyder Truclcing Lines, Inc. v. Riley (1984), 16 Ohio App.3d Logsdon v. Nichols (1995), 72 Ohio St.3d 124, Selker, quoting Payton & Rehberg (1997), 119 Ohio App.3d 183,

8 Judgment Lawsuit remained in full force and effect when venue of the case was transferred to Stark County, just as all the orders of Judge Culotta remained valid and in effect. Siniply because a case is transferred from one trial court venue to another within the State of Ohio does not render the orders entered by the transferring Court null and void. Likewise, the Order admitting Attorney Brown was in fact transferred as part of the record, and was not rendered a nullity by virtue of the transfer from Lake County to Stark County. The fact that the Lake County pro hac vice admission survives the transfer of venue is clear from the Judgnient Entry itself :""IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that Stephen P. Brown be admitted Pro Hac Vice to represent Everest Indemnity Insurance Company in this sriatter."31 Notably, the nxatter has not changed - only the venue has changed. There is no legal basis under Ohio law upon which Respondent could reject Relator's Voluntary Dismissal simply because Attorney Brown was not separately admitted pro hac vice by Resporadent. Attorney Brown's Voluntary Dismissal on behalf of Relator was effective for two reasons: (1) Attorney Brown was already admitted pro hac vice in the case ( matter) with such pro hac vice admission expressly transferred as part of the record to the Stark County Court of Common Pleas, of which Respondent is a Presiding Judge, and such pro hac vice admission was not rejected or revoked by Respondent prior to the filing of Relator's Voluntary Dismissal; and (2) the July 6, 2007 Judgment Entry by the Lake County Court of Common Pleas admitting Attorney Brown to practice pro hac vice is valid in the Stark County Court of Common Pleas because the Court of Common Pleas is deemed one trial court according to the 31 (Emphasis added.) See Exhibit E attached to Brown Affidavit. 8

9 Ohio Constitution, and.ludge Culotta's Judgment Entry admitting Attorney Brown pro hac vice controls, unless revoked, even in the Stark County Court of Common Pleas.32 The right to appear pro hac vice is governed by Ohio common law, not statute or court rule.33 Further, pro hac vice admissions are valid on a case-by-case basis, not county-by-county, as intimated by Respondent's "rejection" of Relator's Notice of Dismissa1.34 Finally, a pro hac vice admission is valid unless revoked by the trial court.3s It is undisputed that Attorney Brown was already admitted pro hac vice in the Declaratory Judgrnent Lawsuit by the Lake County Court of Common Pleas before venue of the case was transferred to Respondent's Stark County Court. Remarkably, even Respondent tacitly acknowledged that Attoniey Brown had been admitted pro hac vice bccause the November 8, 2007 Judgment Entry states "COPY TO: STEPHEN BROWN, ESQ. (PRO HAC VICE)."36 Since Attorney Brown's pro hac vice admission in fl-ie Declaratory Judgment Lawsuit was not terminated, rejected or revoked by Respondent prior to the filing of Relator's Voluntary 31 See Brown Affidavit, Paragraph 9. The suggestion in certain filings in the Stark County Court of Common Pleas in opposition to Relator's Voluntary Dismissal that Mr. Brown's pro hac vice admission is governed by the Ohio Supreme Court Rules for the Government of the Bar, Admission to the Practice of Law, Section 9., Admission Without Examination, (H) is without basis. That rule applies to out-of-state attorneys seeking admission to the Ohio Bar without examination where the "applicant intends to to engage in the practice of law in Ohio actively on a continuing basis." Gov Bar R I, Section 9., (A)(6). Mr. Brown has not filed an application seeking admission to the Ohio Bar to practice in Ohio because Mr. Brown does not intend to practice law in Ohio actively on a continuing basis. Thus, Gov.Bar.R.L(9)(H) does not apply and, more importantly, does not supercede or replace Ohio common law with respect to pro hac vice admissions for a particular case. 33 Westfall v. Cross (2001), 144 Ohio App.3d 211, Walls v. City of Toledo (2006), 166 Ohio App.3d 349 ("A court may specifically admit an attorney not admitted to practice in Ohio, but in good standing in another state, to represent a person in a particular case."); RoyalIndem. Co. v. I. C. Penney Co. (1986), 27 Ohio St.3d Walls, supra. Black's Law Dictionary states that "pro hac vice" "refers to a lawyer who has not been admitted to practice in a particular jurisdiction but who is admitted there ternporarily for the purpose of conducting a particular case." (Emphasis added). Black's Law Dictionary, Abridged Seventh Edition (West Group 2000), page See Exhibit M to Brown Affidavit. 9

10 Dismissal, and Respondent did not serve notice upon Attorney Brown or Realtor's Ohio counsel that separate pro hcic vice admission was required in Stark County, Respondent lacked jurisdiction, authority or discretion to reject the Voluntary Dismissal. In any event, there is no Ohio authority that requires counsel already admitted pro hac vice in a particular case to re-apply for pro hac vice admission if the case is transferred to a different county (in the absence of a specific order or judgment entry to that effect). In fact, such a requirement would be inconsistent with the Ohio Constitution's express establishment of the Court of Common Pleas as one trial court, albeit serving different counties of the state. According to the Ohio Constitution, the Court of Common Pleas is considered to be one court: Const IV Sec. 4 Organization and jurisdiction of conunon pleas courts (A) There shall be a court of common pleas and such divisions thereof as may be established by law serving each county of the state.37 "For purposes of the Ohio Constitution, the Revised Code, and rules of superintendence for courts of common pleas, a judge of any divisiou of a court of cornmou pleas is a judge of the court of co171j12ot4 pleas."38 The very fact that this case has been transferred froni one Court of Common Pleas court to another reinforces the notion that the Court of Common Pleas is one court. Yet, while Respondent readily accepted Lake County Court of Common Pleas Judge Vincent Culotta's October 30, 2007 Judgment Entry transferring the Declaratory Judgment Lawsuit to Stark County, he has effectively refused to accept or recognize Judge Culotta's July 6, 2007 Judgment 37 (Emphasis added.) Ohio Constitution, Article IV, Section 4(A). ' (Emphasis added), 1995 Ohio Op. Atty. Gen. No , Syl. 1. See also State v. Powers (1954), 98 Ohio App. 365, , 129 N.E.2d 653 ("[i]t is clear from these constitutional provisions that a common pleas judge is vested with authority to preside in each and every county.")

11 Entry granting Attotney Brown's pro hac vice admission. Respondent's refusal to recognize Judge Culotta's pro hac vice Judgment Entry as to Attorney Brown or the Voluntary Dismissal filed by Attorney Brown on behalf of Relator is unlawful and unconstitutional, as the Voluntary Dismissal inunediately divested Respondent of any jurisdiction over the Declaratory Judgment Lawsuit effective November 2, CONCLUSION For each and all of the foregoing reasons, as well as those set forth in Relator's Verified Complaint, this Court should issue a peremptory writ prohibiting Respondent from exercising any jurisdiction over Stark County Court of Common Pleas Case No CV retroactive to November 2, 2007, with an accompanying acknowledgment that Relator's Civ.R_ 41(A)(1)(a) Notice of Dismissal was effective upon filing and teinlinated the ease in its entirety effective November 2,

12 ald B. Lee (000OS7) Jerome G. Wyss ( ) ROETZEL & ANDRESS, LPA 222 South Main Street Akron, OH Telephone: Facsimil e: ADDITIONAL COUNSEL FOR DEFENDANT EVEREST INDEMNITY fnsurance COMPANY and Amelia A. Bower (No ) David Van Slyke (No ) PLUNKETT COONEY 300 E. Broad Street, Suite 590 Columbus, Ohio (614) (614) /fax LEAD COUNSEL FOR DEFENDANT EVEREST INDEMNITY INSURANCE COMPANY and of counsel: Stephen P. Brown, Esq. PLUNKETT COONEY Woodward Avenue, Suite 2000 Bloomfield Hills, Michigan (248) (main) (248) (Brown direct) (248) (fax) OF COUNSEL FOR DEFENDANT EVEREST INDEMNITY INSURANCE COMPANY 12