Au^ ) CLERK OF COURT ) SUPREMECOU ^OF ON10 ORIGINAL ACTION IN PROHIBITION. and. Respondents.

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1 IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel. GMS Management Co., Inc Richmond Road, Suite 101 Cleveland, Ohio 44128, vs. Relator, ANTHONY VIVO, Clerk of Court Mahoning County Court 120 Market Street Youngstown, Ohio and DAVID A. D'APOLITO, Judge Mahoning County Court, Area No Mahoning Avenue Austintown, Ohio and MAHONING COUNTY COURT 6000 Mahoning Avenue Austintown, Ohio Respondents. Supreme Court Case No: ORIGINAL ACTION IN PROHIBITION Au^ CLERK OF COURT SUPREMECOU ^OF ON10 MEMORANDUM IN SUPPORT OF COMPLAINT FOR WRIT OF PROHIBITION T. Christopher O'Connell (Reg. No Michael R. Stavnicky (Reg. No Singerman, Mills, Desberg & Kauntz Co., L.P.A Enterprise Parkway, Suite 200 Beachwood, Ohio ( Attorneys for Relator, GMS Management Co., Inc. coconnell(^a,smdklaw.com #88615

2 TABLE OF CONTENTS Page 1. Table of Contents II. Statement of the Case and Facts 1 III. Law and Argument in Support of Complaint 2 A. The Improper Assessment of Costs 2 B. Writ of Prohibition is the Appropriate Remedy 4 IV. Conclusion 5 Signature 6 Appendix 7 Judgment Entry of the Mahoning County Court, Area No. 4 (November 3, 2008 Correspondence Dated 7/16/08, 9/11/08, 12/17/08, and 1/12/09 Exhibit A Exhibit B

3 II. STATEMENT OF THE CASE AND FACTS GMS Management Co., Inc ("Relator", is a commercial and residential property owner with a principal place of business located at 4645 Richmond Road, Suite 101, Cleveland, Ohio Respondent David A. D'Apolito is the presiding Judge of the Mahoning County Court, Area No. 4. Respondent Anthony Vivo is the Clerk of the Mahoning County Court. Respondent Mahoning County Court is the County Court of Mahoning County, Ohio and is established pursuant to R.C and with jurisdiction established, in part, pursuant to R.C (A and R.C (A. As a commercial and residential property owner, Relator must avail itself of the courts to resolve disputes between Relator and its tenants. Specifically, Relator owns five (5 apartment complexes (approximately 1,322 residential units within Respondents' jurisdiction and as such, Relator regularly avails itself of the Mahoning County Court system to resolve disputes between Relator and its tenants, primarily in the context of forcible entry and detainer actions. Upon the filing of new matters with Respondents, Relator always pays the required filing fees. Thereafter, upon Relator obtaining judgments in the forcible entry and detainer actions, Respondents have issued Writs of Restitution in favor of Relator pursuant to R.C and At that time, Relator pays all required fees for the writs. In accordance with R.C , the Sheriff of Mahoning County then serves those Writs of Restitutions. However, despite the plain and unambiguous language of R.C and R.C (A, Relator is then assessed those sheriff's costs/fees associated with serving the writs. On previous occasions, Respondents have actually refused and prohibited Relator from filing new Complaints based on unpaid and improperly assessed costs. See Journal Entry dated November 3, 2008 (Appendix A. Essentially, Respondents "closed the doors" of the courts to Relator. Faced with such a #

4 position, Relator has previously paid those improperly assessed costs while attempting to resolve the issue short of litigation directly with Respondents. See Correspondence dated 7/16/08, 9/11/08, 12/17/08, and 1/12/09 (Appendix B. Recently, during a May 15, 2009, hearing at Mahoning County Court, Area No. 4, Judge David A. D'Apolito advised the Relator that there remained an outstanding balance for the above referenced costs in excess of $3, See Affidavit attached to Complaint. Judge David A. D'Apolito then advised Relator that it was the regular practice of the Mahoning County Court to "cut-off filings" when the outstanding balance totaled at least $5, At that point, Relator would again be barred and prohibited from filing any new Complaints with the Mahoning County Court. Based on prior actions taken by Respondents, it is clear that they intend to prohibit Relator from filing new Complaints as a result of unpaid costs. While there is no judgment for costs currently pending against Relator, Respondents have indicated their intent to "cut-off" Relator's access to the Courts. Based on Respondents' past conduct, Relator cannot simply wait until Respondents issue another deficiency judgment. Doing so would mean that Relator would be barred from the courts until there is a definitive decision overruling or affirming Respondents' practice. III. LAW AND ARGUMENT IN SUPPORT OF COMPLAINT A. The Improper Assessment of Costs Based on the clear and unambiguous language of the Revised Code, all costs associated with serving and/or enforcing writs of restitution are to assessed against the judgment debtor - not the judgment creditor. Specifically, R.C provides, in part: #88615 Except as provided in a contract entered into under division (A of section of the Revised Code, for the services specified in this section, the sheriff shall charge the following fees, which the -2-

5 court or its clerk shall tax in the bill of costs against the judgment debtor or those legally liable therefor for the judgment: (A For the service and return of the following writs and orders: (1 Execution:...(7 Writ of possession or restitution, sixty dollars. See R.C (A. While the sheriff is charging the fees, Respondents are improperly attempting to collect those fees from Relator. Despite the fact that Relator pays the court costs and the writ fees, the Respondents seek to collect additional sheriffs fees from Relator. This despite the fact that the R.C provides that the fees are to taxed against the judgment debtor. In other words, Respondents are to look to the judgment debtor and not Relator for the payment of those writ fees. Additionally, the Revised Code Chapter pertaining to forcible entry and detainer actions provides that costs are to assessed against the judgment debtor. Specifically, R.C (A provides: If the judge finds the complaint to be true, the judge shall render a general judgment against the defendant, in favor of the plaintiff, for restitution of the premises and costs of suit. See R.C Again, the judgment debtor - and not the judgment creditor/relator - is responsible for costs of the suit, which include costs associated with the serving and/or enforcing writs of restitution. Despite the plain and unambiguous language of R.C and R.C (A, which provide that sheriff's costs associated with the aforementioned Writs of Restitution shall be taxed against the judgment debtor, Respondents have consistently assessed those costs against Relator. Relator has previously attempted to resolve this matter directly with Respondents but to date, Respondents have failed to respond to Relator's numerous requests for clarification and/or explanation. Respondents' refusal to accept future pleadings by Relator based on Relator's #

6 failure to pay costs for which Relator is not liable is unauthorized and in direct conflict with the Ohio Revised Code, which specifically provides that the judgment debtor - not Relator - is liable for such costs. B. Writ of Prohibition is the Appropriate Remedy For a writ of prohibition to lie, the following three requirements must be satisfied: (1 the officer against whom it is sought is about to exercise judicial or quasi-judicial power; (2 the exercise of such power is unauthorized by law; and (3 it will result in injury for which no other adequate remedy exists. Christensen v. Brd of Comm. on Grievances (1991, 61 Ohio St. 3d 534; State, ex rel. Berger, v. McMonagle (1983, 6 Ohio St.3d 28, 29. A writ is appropriate in this case, as it is clear that Respondents intend to exercise judicial and/or quasi-judicial power by refusing to accept future pleadings by Relator based on Relator's failure to pay costs for which Relator is not liable. Clearly, the Respondents' failure to accept pleadings is an exercise of judicial and/or quasi-judicial power. The control of the court's docket, the assessing of court costs, and deciding who may and may not bring claims in its jurisdiction, is the ultimate judicial power and/or quasi-judicial power, which Respondents can exercise. As such, Relator has satisfied the first prerequisite for seeking a writ of prohibition. Additionally, the Respondents' actions are unsupported by Ohio law. Specifically, R.C and R.C clearly provide that the costs associated with executing and/or enforcing a writ of restitution are to be taxed to and assessed against the judgment debtor - not the judgment creditor/relator. Respondents are required to look to the judgment debtor to satisfy those costs/fees associated with the writs. Despite the fact that the Ohio Revised Code makes the judgment debtor liable, the Respondents have consistently looked to the Relator to pay #

7 those costs. Accordingly, Relator has satisfied the second prerequisite for obtaining a writ of prohibition. Finally, Relator has no adequate remedy at law. While there is no judgment currently pending against Relator for "delinquent costs," forcing Relator to simply "wait and see" is not an option. Doing so would mean that Relator would be prohibited from any filing with the courts during the pendency of any appeal from that deficiency judgment. Respondents continue to assess Relator for the aforementioned costs. Additionally, Respondents have indicated that they intend to "cut-off' future filings by Relator in the event Relator fails to pay the improperly assessed costs. Given the past conduct of Respondents, it is clear that they intend to follow through on their threat. Based on the number of Relator's residential units within Respondents' jurisdiction, simply waiting for such an entry is not an option. Waiting for a judgment entry that literally shuts the doors to the courthouse would impose upon Relator a detrimental and financial burden. Relator would be put into a position where, despite the fact that its tenants are in breach of their lease obligations, it would be unable to seek relief through the courts. Based on the fact that Respondents continue to improperly assess Relator for the aforementioned costs and based on the May 15, 2009 hearing, it is clear that Respondents intend to exercise judicial and/or quasi-judicial power against Relator. As such, Relator's Complaint for writ of prohibition is proper. IV. CONCLUSION For the aforementioned reasons, Relator is entitled to an alternative and peremptory writ ordering Respondents and each of them to (i cease efforts to collect from Relator, sheriffs costs associated with enforcing writs of restitution pursuant to R.C and (ii order p

8 Respondents to accept all filings of Relator and prohibiting Respondents from refusing any filing of Relator. Respectfully submitted, T. Christopher O'Connell (Reg. No Michael R. Stavnicky (Reg. No Singerman, Mills, Desberg & Kauntz Co., L.P.A Enterprise Parkway, Suite 200 Beachwood, Ohio ( Attorneys for Relator, GMS Management Co., Inc #

9 APPENDIX

10 IN THE NIAI3ONING COUNTY COURT AREA NO. 4 AUSTINTOWN TOWNSHIP, OHIO `n',n ; ;^ l^ r"'nt' J.:it i IN RE: GMS MANAGEMENT CO., INC RICHMOND RD, #101 CLEVELAND, OH VS- UNPAID COURT COSTS AND DELINQUENCIES CASE NO: OPEN MAGISTRATE DONALD J. DESANTO JUDGE DAVID A. D'APOLITO JUDGMENT ENTRY IT HAVING BEEN BROUGHT TO THE ATTENTION OF THIS COURT THAT GMS MANAGEMENT CO., INC. IS DELINQUENT IN PAYING THE SUM OF $4, OF COURT COSTS TO DATE. PLEASE SEE ATTACHED DOCUMENTATION. ORDERED, CLERK OF MAHONING COUNTY COURT #4 SHALL NOT ACCEPT ANY NEW PLEADINGS, WITH OR WITHOUT COURT COSTS ADVANCED, UNTIL ALL PRIOR DELINQUENT COSTS HAVE BEEN PAID IN FULL AND PROPERLY RECEIPTED FROM GMS MANAGEMENT CO., INC. a^ DATE JUDGE DAVID A. D'A G'LITO CERTIFICATE OF JUDGMENT I CERTIFY THAT ON THIS 3AD DAY OF NOVEMBER, 2008, A COPY OF THE FOREGOING ORDER WAS FORWARDED VIA REGULAR U.S. MAIL TO THE FOLLOWING: STUART J. GRAINES, ESQ., GMS MANAGEMENT CO., INC RICHMOND ROAD, #101, CLEVELAND, OH AND TO JAMES R. OGDEN, ESQ., P.O. BOX 3021, CUYAHOGA FALLS, OH JUDGE DAVID A. D'APOL77 EXHIBIT ^ A

11 STUART J. GRAINES ATTORNEY AT LAW 4645 RICT3NIOND ROAD, #101 CLEVELAND, OHIO July 16, 2008 Setty Taylor Mahoning County Court #4 Austintown Plaza 6000 Mahoning Avenue Youngstown, Ohio Re: Court Costs & Sheriff Fees Dear Betty: In reference to the Cost Due Report we receive from the court periodically, and pursuant to R.C , shouldn't the costs of the sheriff's services be taxed to the Defendant(s in the case? R.C (A states: "... If the judge f4nds the complaint to be true, the judge shall render a general judgment against the defendant, in favor of the plaintiff, for restitution of the premises and costs of suit." The sheriff is providing a service to the court affiliated with a case filed in that court and the costs for this service becomes part of the case. When the plaintiff prevails the defendant should be made to pay these costs. If I'm mistaken, please advise. On July 3, 2008 there were two (2 cases filed in your court with the appropriate costs: GMS Management Co., Inc. u. Scott McClellond, et al - 08 CVG GMS Management Co., Inc. u. Ronica McCullough, et al - 08 CVG Dismissal entries for both cases were sent to your court on July 10, 2008, prior to the scheduled hearing date of July 18, Please advise me as to what our filing costs (in both cases were retained to. Lastly, I would like to have an itemization of what our filings fees are retained to in general, i.e., legal research, legal aid, sundries, etc. Your response is appreciated. Stuart Craines, Esq. GMS Management Co., Inc. SG/pm

12 G M S ^ 4645 Richmond Road Suitr 101 Clc-land, Obio ( September 11, 2008 Mahoning County Court #4 Attn: Betty Taylor Austintown Plaza 6000 Mahoning Avenue Austintown, Ohio Re: Invoices for costs due Dear Betty: I am in receipt of the current invoices you sent to me, dated September 10, 2008 for costs due. Please be advised that Mr. Stuart Graines is still waiting for a response from your office to his letter dated July 16, 2008, regarding these fees. I have enclosed a copy of this letter for your review. Should you have any questions, please give me a call. Very truly yours, I 1^. Patty Morgan Records Department Supervisor GMS Management Co., Inc. Cc: file

13 STUART J. GRAINES ATTORNEY AT LAW 4645 RICHAIOND ROAD, #101 CLEVEI,.AND, OHIO / Decembe-17, 2008 Honorable Judge David D :Apolito Mahoning Counry Court No. 4 Austintown Plaza 6000 Mahoning Avenue Youngstown, Ohio Dear Judge D'Apolito: Sent via Certified Mail M8 As you may be aware, I atn one ofthe attorneys currently representing GMS Management Co., Inc. and its predecessor, Ilillbrook Management Co. My client has been troubled by the Court's assessment of costs and in an attempt to satisfy itself that the costs have been properly invoiced, I wrote a letter to Betty Taylor, dated July 16, Enclosed please find a copy of same. As of tlus date I have received no response to this letter. On September 11, 2008, my client, on my behalf, wrote a second letter to Betty. Enclosedplease find a copy of that letter. Neither I nor my client have received a response to this second letter. Recently, we became aware that the Court had been, and currently is, billing GMS Management for the Sheriff s fees in serving VTrits of Restitution. Thinking this uras a billing error, we called Scott Grossin, the Clerk of Courts Administn ator, and explained to him that ORC Section states... the sheriff shall charge the following fees which the court or its clerli shall tax in the bill of costs againstthe judgment debtor or those legally liable for the judgment: writ of possession or restitution, sixty dollars." Mr. Grossin said hewould call Michelle in Court No 4 and inquire. He did and was told by the Court and the Prosecutor that the assessment of the Sheriff s fees against my client was corzect. Scott could not explain the discrepancy in this statement and the clear wording of the statute and he suggested that I write to you directly for the Court's response and position. Accordingly, I am hereby requesting that the questions raisedherein be addressed. In addition, I would request that this Court direct its Clerk to respond to the letters mentioned above and specificallyrespondto the questiorl when a case has been dismissed prior to a heariiig how are the monies previously paid as an advanced deposit on court costs accounted for. Your prompt response will be appreciated. Stuart J. Graines SJG/pes/encls. cc: James R. Ogden, Esq.

14 4645 Richn:ond Road Suite 101 Cleveland Ohio ( Januaiy 12, 2009 Mahoning County Court #4 Attn: Betty Taylor Austintown Plaza 6000 Mahoning Avenue Austintown, Ohio I arn in receipt of the current invoices you sent to me, dated January 6, 2009 for costs due. Enclosed is our check in the amount of $266.18, along with copies of the invoices this payment represents. Please be advised that as of this date, our office is still waifing for a response from fhe Court regarding the invoicing of sheriff fees. We have sent letters to the Court on July 16, 2008, and September 11, 2008, and have had no response to same. Our counsel, Mr. Stuart Graines, has also called Judge D'Apolito numerous times, left messages, and has not received any response to his messages. I have been instructed at this time to cease payment on invoices for sheriff fees as we have not received an answer to our question as to why we are being billed sheriff fees. Also be advised that in reviewing two (2 of the invoices you sent (case numbers 08 CVG and 08 CVG 01765, the sheriff fees were billed a$er a dismissal entry was docketed by the court. Also in error, our office was sent an invoice intended for Waldon Management Co. (case number 08 CVG Should you have any questions, please give me a call. Very truly yours, n AIA:i Patty Morga Records Department Supervisor GMS Management Co., Inc.