CASE NO APPELLAN'T`S MOTION FOR RECONSIDERATION

Transcription

1 IN THE SUPREME COURT OF 01-II State of Ohio ex rel. Jonathan C. Luoma Appellant V. CASE NO On Appeal from the Eighth District Court of Appeals Judge Nancy Margaret Russo Court of Appeals Appellee. Case No. 13 CA APPELLAN'T`S MOTION FOR RECONSIDERATION J. Alex Morton (002$021) CC'^UNSE-L OF RECORD) 5247 Wilson Mills Rd., #334 Richmond Hts., OH P (440) F (440) 461m9335 jamortlaw@yahoo.com COUNSEL FOR APPELLANT JONATHAN C. LUOMA Timothy J. McGinty Prosecuting Attomey of Cuyahoga County Nora E Graham ( ) (^OUNSEI, OF RECORD) Assistant Prosecutinp, Attomey 1200 Ontario Street, 8th Floor Cleveland, OH P (216) F (216) ngraham@prosecutor.cuyahogacounty.us COUNSEL FOR APPELLEE J-UDGE NANCY MARGARET RUSSO "s^.r :,;..;^:f!%;s- r^,r ;B';.;^,.. ;/r 3;re s;^ia,,i ^."^.FUr.^::«.a.^.^:,^::^:.^.:.^ ";^+. si::i%^.r'

2 MOTION FC3I'^ RECONSIDERATION Pursuant to S. Ct. Prac. R (D), Appellant Jonathan C. Luoma moves this Court for reconsideration of its Slip Opinion filed October 15, 2014 on the grounds that the opinion did not address Propositions of Law No. 1 stated by Appellant, and that the opinion ignores established caselaw limiting the final orders in a partition action to the order of partition and the order confirnning the sale of the partitioned property. These grounds are more fully set forth in the attached Memorandum Luoma's prodosition of Law No. I Louma's Proposition of Law No. I stated, " Civ. R. 56 does not perrnit a court to grant summary judgment on grounds based on arguments and caselaw produced sua sponte by thecourt, without giving the non-moving party notice of and an opportunity to respond to such arguments and caselaw; because to do so would violate the non-moving party's constitional right to procedural due process of law, under the United States Constitution, Fourteenth Amendment, Section 1, Due Process Clause, as wellas Article I, Section 16 of the Ohio Constitution. Regarding same this Court's opinion stated, 'B {^ 9} Luoma argues that the court below violated his due-process rights because it decided the case on 2

3 arguments that were not briefed and case law that was not cited by the parties. This argument is without merit. The court decided the case on the grounds argued by Judge Russo in her motion for summary judgment: that Luoma had an adequate remedy at law and therefore was not entitled to a writ of mandarnus. And nothing in Civ.R. 56 or elsewhere prevents a court from citing cases in support of its decision that were not cited by the parties." The issue raised by Luoma in his Proposition of Law was that the court below did not give Luoma an opportunity to respond to arguments and caselaw produced sua sponte by the court below; not that "the court decided the case on the grounds argued by Judge Russo in her motion for summary judgment." Luoma's attomey put in a lot of time researching the caselaw cited by the court below, and analyzing and distinguishing same for the benefit of this Court. This was Luorna s only opportunity to do so, due to the fact that the court below did not give Luoma this opportunity. Luoma submits that this Court should at least address the caselaw cited by the court below, and analyzed and distinguished by Luama's attorraey. More important, by ignoring both the procedure and substance of the court belows disposition of this case, without addressing the actual issue raised by Appellant's Proposition of Law No. I, this Court will encourage the court below to 3

4 ignore the core procedural concept of giving a party an opportunity to respond to law and argument raised sua sponte by a court in deciding a motion for summary judgment. By ignori-ng Judge ILusso's failure to comply with the Zinni case, which incidentally was a probate case and not a partition action, this Court is encouraging Judge Russo to ignore the requirement of Civ. R. 53 that a judge provide her independent rationale in reviewing her nlagistrate's decisi n. Ignoring Established Caselaw on Partition Actions By ignoring established caselaw in. Ohio that final orders in a pai-titic n action are limited to the order of partition and order confirming the sale of the partitioned property, this C urt's Slip Opinion will add to the confusion of some trial courts and courts of appeal regarding which orders in partition actions are final and appealable, and which are raot. This Court's Slip Opinion itself illustrates this fact. In the Opinion, Judge Russo's December 31, 2012 order at issue in this case is variously referred to as: (1) "a final order directing that the property be sold" (paragraph 1 f Slip Opinion); (2) a "final judgment" and an "opinion ordering a sheriff s sale and setting the terrns for distribution of the proceeds,' and which "opinion specifically stated that 4

5 I it was final and set forth the court's decision on all issues.`p (paragraph 5 f Slip Opinion); and (3) an "opinion that determined the rights of the parties, set the arnouiits to which each was entitled upon the sale of the property, and ordered the clerk to issue an order of sale to the sheriff "(paragraph 11 of Slip Opinion). Appellant contends that this varying terininolmgy is indicative of the fact that the Slip Opinion is bad law, in the opinion of Luoma's att rney; and was decided too hastily, and could have the unintended c nscquence of muddying the water of partition law in Ohio. Conclusion For the foregoing reasons, this motion should be granted; and this case reconsidered, decided on the issues actually raised by it, and decided with a view toward clarifying the law of both summary judgment and the law of partition. Respectully submitted ^ I ^Ai-^. J Alex Morton ( ) 247 Wilson Mills Road, #334 Richmond Hts., OH P (440) F (440) jaynortlaw@yahoo.corn Att rney for Appellant Jonathan C. Luoma 5

6 PROOF OF SERVICE The undersigned certifies that on October 22, he served a c py of the foregoing Motion for Reconsideration on Nora E.. Graham, Assistant Prosecuting Att rney, 1200 Ontario Street, 8th Floor, Cleveland, OH 44113, attomey for Appellee Judge Nancy Margaret Russo ; by electronic mail sent to ngraham@prosecutor.cuyahogacounty.us ex Morton ( ) rney for Appellant Jonatb.an C. 6