IN THE SUPREME COURT OF OHIO

Transcription

1 IN THE SUPREME COURT OF OHIO CLYDE NORRIS, et al., Appellants, V. RICHARD B. MURRAY, et al., Case No On Appeal from the Knox County Court of Appeals, Fifth Appellate District Court of Appeals Case No. 11-CA-12 Appellees. MOTION OF APPELLEES KENYON COLLEGE AND PHILANDER CHASE CORPORATION (COLLECTIVELY "THE COLLEGE") TO STRIKE THE MEMORANDUM IN SUPPORT OF JURISDICTION OF LAURYNMAE YELSKY Monica A. Sansalone ( ) Timothy T. Brick ( ) Timothy J. Fitzgerald ( ) GALLAGHER SHARP Bulkley Building, Sixth Floor 1501 Euclid Avenue C1evcland, - nu Telephone: (216) Facsimile: (216) msansalonena gallaehersharp.com tbrick@gallashersharp.com tfitzgeraldangalla ersh.com Richard S. Lovering ( ) Thomas R. Sant ( ) Bricker & Eckler LLP 100 South Third Street Columbus, Ohio Telephone: (614) Facs:m:le: (614) 227 ^390 rlovering@bricker.com tsant@bricker.com Attorneys for Appellees Kenyon College and Philander Chase Corporation Attorneys for Appellants L.eonard W Yelsky and LaurynMae Yelsky f1ar 19 C012 CLERk' OF COURT SUPREME Ct7uR, OF OHIO

2 MOTION TO STRIKE Appellees hereby move to strike the Memorandum in Support of Jurisdiction for Case No. 11-CA-12 filed by LaurynMae Yelsky because she is not a party to Case No. 11-CA-12 as discussed in the memorandum attached hereto. Respectfully submitted, Richard S. tovering (f ( ) Thomas R. Sant ( ) Bricker & Eckler LLP 100 South Third Street Columbus, Ohio rlovering@bricker.com tsant@bricker.com Tel.: 614/ ; Fax 614/ Counsel for Appellees Kenyon College and Chase Philander Corporation Memorandum in Support The claims against Leonard Yelsky and LaurynMae Yelsky were bifurcated from the claims against John Norris on July 5, The claims against LaurynMae Yelsky were included in Case No. 11-CA-10 in which an Opinion was rendered on December 14, The claims against John Norris were included in Case No. 11-CA-12 and the Court of Appeals' January 3, 2012 Opinion affirmed the Trial Court's judgment against John Norris. LaurynMae Yelsky filed a Memorandum in Support of Jurisdiction in Case No. 11-CA- 10 in which she is a party on February 17, However, LaurynMae Yelsky has now filed a second Memorandum in Support of Jurisdiction in Case No. 11-CA-12 despite the fact she is not a party to this case. The second Memorandum in Support of Jurisdiction asserts the same three 1

3 propositions of law she asserted in Case No. 11-CA-10, but untimely attempts to add a fourth Proposition of Law that had apparently not been thought of within the required time limits in Case No. 11-CA-10. As an Ohio Court of Appeals has held: "[b]ased on state and local appellate rules and Ohio Supreme Court case law, we find it clear that being a`party' to the action below is required to establish standing on appeal. Appellate rules define the appellant and appellee, as well as actions taken within an appeal, in terms of `party' and what a`party' must do, not what a `person' must do. It is axiomatic that `party' means one who is designated on the record below as plaintiff or defendant. While other persons may be affected by the outcome of a cause of action, either indirectly or consequently, they are not parties, but only interested persons. Accordingly, one must first show they were a party to the underlying action before reaching the element of `aggrieved' or affected by the outcome of the cause of action." Hokes v. Ford Motor Co., 2005 Ohio 5182, P6 (Ohio Ct. App., Sumniit County Sept. 30, 2005) LaurynMae Yelsky does not have standing to file a memorandum in support of jurisdiction in a case in which she is not a party. The Memorandum in Support of Jurisdiction in Case No. 11-CA-12 filed by LaurynMae Yelsky should be stricken from Case No. 11-CA-12 because this new proposition is apparently an attempt to untimely assert a new Proposition of Law in Case No. 11-CA-10. The new fourth Proposition of Law contained in LaurynMae Yelsky's Memorandum in Support in Case No. 11-CA-12 has been resolved by res judicata because that proposition of law was not timely raised in Case No. 11-CA-10. LaurynMae Yelsky is not a party to Case No. 11-CA-12 and her Memorandum in Support of Jurisdiction filed in this case should therefore be stricken. 2

4 Secondly, assuming that LaurynMae Yelsky has standing to appeal a case in which she is not a party and untimely assert a new fourth Proposition of Law in Case No. 11-CA-12 that has been resolved by res judicata in Case No. 11-CA-10, it should be noted that the new untimely asserted fourth Proposition of Law is without merit. The December 14, 2011 Opinion providing for judgment against her in Case No. 11-CA-10 was proper and well supported by the record. The College's Motion for Expenses filed December 17, 2008, specifically requested and gave notice that the motion was seeking recovery for frivolous conduct by "Plaintiff and Plaintiff s counsel". That Motion for Expenses was served on Leonard Yelsky, LaurynMae Yelsky at Yelsky & Lonardo.1 Similarly, as early as February 16, 2004, both counsel who signed the Complaint were asked to dismiss the case because it was frivolous and were advised in writing that the College would "pursue available remedies against you and your client, jointly and severally, as provided by R.C (B)(4)."2 Counsel knew at the time the Complaint was filed that they were filing a claim for alleged tortious interference with an option that both counsel and John Norris knew had been voluntarily released by John Norris as part of John Norris's settlement with his family to avoid eviction. Counsel received ample notice of the Motion for Expenses filed against the counsel who signed the Complaint. The frivolous Complaint was signed by Yelsky & Lonardo "By" Leonard W. Yelsky, Esq. and "By" LaurynMae Yelsky, Esq. and was signed by both Leonard W. Yelsky and by LaurynMae Yelsky.3 In fact, the signature page on the Complaint appears to be signed exclusively by LaurynMae Yelsky who signed the names of both attorneys. The Court 1 See: December 17, 2008 Motion for Expenses. 2 Tr Testimony of the VP-CFO, Joseph Nelson, February 16, 2004 correspondence and marked as April 8, 2011 Hearing Exhibit F. 3 See: Signature Lines of February 3, 2004 Complaint. s2885imi 3

5 of Appeals properly included on the judgment as provided by R.C (B)(4) the attorney who actually signed the frivolous Complaint, signed most if not all pleadings and fully participated at every stage in the aggressive litigation of frivolous claims. CONCLUSION LaurynMae Yelsky is not a party to Case No. 11-CA-12. Appellees therefore respectfully request that the pending Motion to Strike be sustained. Respectfnlly submitted, Richard S. Lovering (/ ( ) Thomas R. Sant ( ) Bricker & Eckler LLP 100 South Third Street Columbus, Ohio rlovering@bricker.com tsant@bricker.com Tel.: 614/ ; Fax 614/ Counsel for Appellees Kenyon College and Chase Philander Corporation s2ss51tvi 4

6 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was served by regular U.S. Mail, 0- postage prepaid, this Lf day of March, 2012, upon the following: Monica A. Sansalone Timothy T. Brick Timothy J. Fitzgerald GALLAGHER SHARP Bulkley Building, Sixth Floor 1501 Euclid Avenue Cleveland, OH Counsel for Appellants Leonard W. Yelsky and LaurynMae Yelsky James H. Banks, Esq. P.O. Box 40 Dublin, OH Attorney for John Norris / ^ Richard Lovering (