APPELLEE, ESTATE OF LAISA PROKOS' MEMORANDUM IN RESPONSE TO APPELLANTS' MEMORANDUM OF JURISDICTION

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1 IN THE SUPREME COURT' OF OHIO ^^^ LAISA PROKOS, CASE NO.: Appellee, vs. PAM HINES, et al., On Appeal from the Athens County Court of Appeals, Fourth Appellate District Appellees, LAISA PROKOS, Appellee, Court of Appeals Case Nos.: 10CA51 & 1QCA57 vs. DEMETRIOS PROKOS, et al., Appellees, and BARRY M. KUCIK, et al, Appellants. J'-,`t`, ^Ji r(f se.,^:5 ^.3^:.^sr.0 F j;oytr T a"3e ^isa:f^ ^` %^;",R'ti ^e, r ti3;.^'s>,?8%`..' '" `i;.^'^^" ^^S S` f^y n APPELLEE, ESTATE OF LAISA PROKOS' MEMORANDUM IN RESPONSE TO APPELLANTS' MEMORANDUM OF JURISDICTION Jeffery L. Finley (# ) 431 Second Avenue P.O. Box 351 Gallipolis, Ohio Phone: (740) Fax: (740) ieffer y. finley Asbcglobal.net Fiduciary of the Estate of Laisa Prokos L. Jackson Henniger (# ) 175 N. Mulberry Street Logan, Ohio Phone: (740) Fax: (740) Ihenniger@hennigerlaw.com Attorney for Appellants Barry M. Kucik, et al.

2 John P. Lavelle (# ) Robert R. Rittenhouse (# ) 449 E. State Street Athens, Ohio Phone: (740) Fax: (740) jlavellenjohnplavelle.com rusty^,^j ohnplavelle.com Attorneys for Appellee, Demetrios Prokos

3 APPELLEE, ESTATE OF LAISA PROKOS', POSITION STATEMENT AS TO WHETHER THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST The case at bar does not involve an issue of public or great general interest and therefore this Court should refuse review of the case. Appellants argue that the case presents complex issues of subject matter jurisdiction when in reality there is essentially no issue with respect to jurisdiction. The matters tried to the jury at the trial court level were properly before the general division of the common pleas court pursuant to Ohio statutory law defining the respective jurisdiction of each division of the court and the common law precedent handed down by this Court. Appellants also claim that this case presents an issue which requires this Court to interpret Ohio's Uniform Fraudulent Transfer Act. Looking in depth at Appellants' argument reveals that the argument is really one of the weight of evidence produced at trial and not one where a novel issue is presented requiring a clarification or interpretation of the statute. Basically, Appellants are complaining that not enough evidence was produced to validate the underlying creditor's claim. T'his does not rise to the requisite level of an issue of public or great general interest. Appellants argue that this case involves an issue of election of remedies that is novel or unique in some manner. This is simply not so. The jury found Appellants engaged in fraud and the trial court as well as the appellate court followed ancient common law principles and properly did not reward the Appellants for engaging in such fraud. There is nothing about the courts' decisions on this issue that rises to a public or great general interest requiring review by this Court. It is further contended that the Court should review the trifurcation of the issues for trial. Appellants concede that they agreed to such trifurcation. It is perplexing how they now submit that this is a matter of public or great interest when in fact it is no more than an attempt to create an issue -1-

4 from a procedure to which they agreed to be bound. Appellants are incorrect in their assertion that the Estate presented claims in federal court, then dismissed those claims and reasserted them in the state court case. This, in fact, did not occur as Appellants claim. In addition, no such argument of this nature was made at the trial or appellate level. More importantly, it does not involve an unique issue or one of public or great interested even assuming this had occurred. Had this occurred as Appellants claim, it would be a very basic civil procedure issue that should have been raised at the trial court level. Appellants submit that a public or great interest is involved in this case based on their claim that the fiduciary of the Estate of Laisa Prokos allegedly did not proceed in the trial with the position taken in the pleadings filed on behalf of the Estate. This is not an accurate representation and was pointed out to Appellants by the Court of Appeals. Nevertheless, even if accurate, this presents no issue elevating this case to one of public or great interest. It would simply be no more than a fiduciary's exercise of discretion in the capacity of personal representative of an estate. Finally, Appellants argue that the case is of public or great interest due to a settlement agreement entered into between the Estate of Laisa Prokos and a mechanic's lien claimant after the trial on the claims appealed by the Appellants. Appellants were not parties to the mechanic's lien claims and thus have no standing to challenge or object to any settlement. This issue, or more accurately non-issue, is not one of public or great interest, but rather an attempt by Appellants to argue with the unanimous verdict reached bv the jury at the trial court level and upheld by the appellate court. Therefore, it is the position of the Appellee, the Estate of Laisa Prokos, that this case is not one of public or great general interest, but rather a very clear case of Appellants who disagree with -2-

5 the outcome of a jury trial and the subsequent decision by the appellate court. APPELLEE, ESTATE OF LAISA PROKOS', ARGUMENT IN SUPPORT OF ITS POSITION REGARDING PROPOSITIONS OF LAW RAISED BY APPELLANTS 1. Subject Matter Jurisdiction. The law is long-settled with respect to the issue of subject matter jurisdiction as it relates to the case at bar. The Ohio Supreme Court in Dumas v. Estate of Dumas, 1994-Ohio-312; 68 Ohio St.3d 405, held that the general division of a Court of Common Pleas, rather than probate division, had jurisdiction over a widow's claim for fraud. In Dumas, Dumas' widow alleged that her husband fraudulently transferred assets to an inter vivos trust with the intent to deprive her of her spousal elective share of his estate. Id. at 406. Mrs. Dumas sought compensatory and punitive damages along with the rescission of the transfer of assets to the trust. Id. at 407. The Ohio Supreme Court held that the general division of the court of common pleas had subject matter jurisdiction over Mrs. Dumas' causes of action. Id. at 408. Citing Schucker v. Metcalf (1986), 22 Ohio St.3d 33, the Court reiterated that the probate division has no jurisdiction over claims for money damages ari sing from allegations of fraud. Id. The Court went on to hold that "even though in her amended complaint she seeks an order to rescind the transfer of assets to the trust and return to her certain unspecified property, which order, if granted, may affect the administration of Mr. Dumas' probate estate, her primary aim is still the recovery of monetary damages for the alleged fraud.." Id. In this case, the Estate of Laisa Prokos' claims sought money damages based ori the fraud found to have taken place by the j ury. The argument presented by the Appellants essentially ignores what was pleaded in the Estate's complaint. The probate court's exclusive jurisdiction as set forth -3-

6 in R.C simply does not vest it with authority over claims for damages in fraud. 2. Interpretation of the Fraudulent Conveyance Act. The determination of Appellee, Demetrios Prokos' claims against the Appellants were not based upon an issue with interpreting Ohio's Fraudulent Conveyance Act. The verdict was based upon the evidence presented at the trial. Testimony was presented that Demetrios Prokos assumed full management responsibilities for his parents' rental properties, including leasing, maintenance, paying bills, etc. after they had begun spending most of their time in Florida. There was no written agreement between Demetrios and his father with regards to compensation, but the two had agreed verbally that Demetrios would be paid to manage his parents' properties and reimbursed for maintenance expenditures and the like. After his father's death when Demetrios learned that his mother's rental properties were going to be sold to local realtor, Larry Conrath, at "fire sale" prices he took action to protect his interest in the money he was owed for managing the properties by filing mechanics liens. After Laisa Prokos' death when the properties had been transferred to the Kuciks and the sale proceeds had been received by Nickos Prokos, Laisa Prokos' estate had no assets. As a result, Demetrios, as a creditor of Laisa Prokos, had a right to pursue the fraudulent conveyances whereas he had recorded liens in place on each of the properties. Demetrios Prokos testified to these facts and the jury had the ability to believe or not believe his testimony. So, Appellants position that no evidence proving the liens was presented at trial is not supported by the record. As the appellate court correctly pointed out, this Court, in Stein v. Brown (1985), 18 Ohio St.3d 305, held that the clear language of the statute includes unmature, unliquidated, or contingent claims. It is clear that the real argument Appellants are tendering is that they believe there was -4-

7 insufficient evidence to support the validity of the mechanic's liens, not that there is a legal issue with respect to interpreting the law requiring this Court to accept this case for review. Appellants are really wanting this Court to substitute its judgment for the trier of fact rather deal with a question involving a case of public or great general interest. 3. Appellee's Election of Remedies. This argument is moot since the jury did not award the Estate a monetary award on the sale proceeds as claimed by the Appellants. The jury returned a verdict of $49, in compensatory damages for the Estate against the Appellants on its fraud claim and $49, on its conversion claims which were then properly merged to avoid multiple recovery to one compensatory award of $49, This compensatory award represented the money held in Attorney William Biddlestone's trust account that was sent to Barry Kucik after Laisa Prokos' death instead of to her estate representative. Appellants claim that they should have been awarded an equitable lien interest for mortgages paid after defrauding Laisa Prokos of her properties is disingenuous, not supported by law, and does not involve an issue of public or great general interest. Appellants' fraudulent conduct precludes them from obtaining any equitable setoff. In order to obtain equitable relief from the court, a claimant must come with clean hands. Equity will be denied if the claimant had violated conscience or good. faith or had acted fraudulently, or by deceit or by unfair means had gained an unfair advantage. Keystone Driver Co. v. Gen. Excavator Co. (1933), 290 U.S A principle maxim of equity is "the wrongdoer is not permitted to profit from his or her own wrong." 41 Ohio Jur.3d 58. Another long-settled maxim of equitable principles is "one who seeks equity must do equity". 41 Ohio Jur.3d 67. Here, the jury returned a unanimous verdict finding Appellant, Barry Kucik -5-

8 along with his cohort, Nickos Prokos, defrauded Laisa Prokos of her real estate. The fact that Kucik paid off some mortgage balances after he had fraudulently obtained the property does not entitle him to be given a pardon for this conduct and placed back into his former position. Essentially, Appellants are requesting this Court to review this issue and determine that there is no consequences for engaging in fraud and getting caught. Certainly, this proposition cannot be of public or great interest for the people of the State of Ohio. 4. Trifurcation of the Trial. As correctly pointed out by the Appellants, the issue of the mechanic's lien was agreed by all parties to be heard in a separate trial. Therefore, any complaint about trifurcation fo the trial was invited and thus waived. In addition, the trifurcation had no bearing on the burden of proof of the underlying lien claim. Again, it appears the Appellants are just expressing their disagreement with the jury's verdict and not basing their argument on any pertinent legal principles. One can only surmise that the Appellants are somehow urging this Court to accept review of this case on the basis that the law should be modified in some manner so as to allow a party, represented by counsel, who has agreed to a certain procedure for trial to later claim error based on the agreed upon procedure. Clearly this would not be a question or issue that would make this case one of public or great general interest. 5. Amendment of Appellee's Complaint. This argument was not presented on appeal to the Fourth District Court of Appeals. As a result, precedent dictates that this Court will refrain reviewing issues not presented by review from the lower court. Nevertheless, Appellants assertion that the complaint filed on behalf of the Estate was dismissed in federal court and then reasserted the claims in state court. This is inaccurate. A -6-

9 review of the pleadings in the cases will reveal that the only claims dismissed in federal court involve parties against whom claims were never reasserted. The trial court gave all parties a definitive deadline to amend its claims and the Estate's claims were timely amended. No issues were raised with respect to those claims amended by the Estate at the trial court level or at the appellate level. As a result, the Appellants' argument is misplaced. 6. Manner in Which Fiduciary Proceeded on the Mechanic's Liens. It is important to note for this Court that the appellate court found that the Appellants "completely mischaracterized" fiduciary Finley's testimony in their brief to that court. (Appellate Decision, P. 84, Paragraph 13 8). As pointed out by the appellate court, the fiduciary's testimony was that he was opposing the liens, that they had to be proven and that he had filed claims on behalf of the Estate to have the liens declared invalid. In addition, the claims regarding the validity of the mechanic's liens were part of the trifurcation and were not to be decided at this trial. Again, this trifurcation was by agreement of all parties via their respective counsel. Now, Appellants want to complain about the trifurcation to which they agreed. Nonetheless, this supposed issue is not one making this a case of public or great general interest. 7. Settlement of the Mechanic's Lien Claim. This argument was not presented on appeal to the Fourth District Court of Appeals. As a result, precedent dictates that this Court will refrain reviewing issues not presented by review from the lower court. At any rate, this non-issue fails to elevate this case to one involving a question of public or great interest. Very simply, after the jury returned its verdict of fraud involving the -7-

10 conveyances of Laisa Prokos' properties and the trial court then properly exercising its equitable powers and rescinding the fraudulent transfers, the Estate, through its fiduciary, then reached an amicable settlement with Demetrios Prokos regarding the mechanic's lien claim. This settlement was approved by the trial court and the probate court in the estate before it was entered. In addition to the above, it is important to consider that after the fraud finding and the rescission of the deed, the Appellants no longer had standing with respect to the real estate. Thus, Appellants argument here is moot in addition to being untimely raised. CONCLUSION Based upon the foregoing, the findings of the trial court, and the Decision and Judgment Entry of the Fourth District Court of Appeals, Appellee, the Estate of Laisa Prokos, respectfully submits that this case is not one involving a question of public or great interest. Appellee requests this Court to decline jurisdiction of this case. Respectfully Submitted,..,. Jef^r^^. ^inley ( 0@69717) 431 Second Avenue P.O. Box 351 Gallipolis, Ohio Phone: (740) Facsimile: (740) jeffea.finleygsbcgiobal.net Executor of the Estate of Laisa Prokos -8-

11 PROOF OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing was sent to L. Jackson F-lenniger, Attorney for Appellants, at 175 North Mulberry Street, Logan, Ohio 43138; and, to John P. Lavelle and Robert R. Rittenhouse, Attorneys for Appellee, Demetrios Prokos, at 449 E. State Street, Athens, Ohio by Regular U.S. Mail this 6th day of June, ; ;,- -,^^.-^- ;.1 Jqftet-^. Finley # ) Attorney for Plaintiff-Appellee, Estate Laisa Prokos -9-