IN THE SUPREME COURT OF OHIO. Supreme Court Case No

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1 ORIGINAL IN THE SUPREME COURT OF OHIO Paul J. Hummer, Defendant?Appellant, V. Mary A. Hummer, Plaintiff-Appellee. Supreme Court Case No Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals Case No. 10-CA APPELLEE MARY A. HUMMER'S MEMORANDUM IN RESPONSE TO PAUL HUMMER'S MEMORANDUM IN SUPPORT OF JURISDICTION Margaret E. Stanard ( ) (Counsel of Record STANARD & CORSI CO.. LPA 1370 Otztario Street, Suite 748 Cleveland, OH Phone: (216) Fax: (216) COL'1VSEL FOR APPELLEE, MARY HUMMER Caryn M. Groedel ( ) (Counsel of Record) CARYN GROEDEL; & ASSOCIATES CO., LPA Solon Road, Suite 27 Cleveland, OH Phone: (440) Fax: (440) COUNSFL FOR APPELLANT, PAUL HUMMER OCT VED CLERK OF COURT SUPRBlE COUR7 OF OHIO OUT 11 zo1l CLER «F COURT SUPREME COURT OF OHIO

2 Pamela MacAdams ( ) MORGANSTERN, MACADAMS, & DEVITO 623 West St. Clair Avenue Cleveland, OH Phone: (216) Fax:(216) COUNSEL FOR APPELLANT, PAUL HUMMER Sarah Gabinet ( ) (Counsel of Record) KOHRMAN, JACKSON & KRANTZ P.L.L. One Cleveland Center, 20th Floor 1375 East 9th Street Cleveland, OH Phone: (216) Fax: (216) COUNSEL FOR RECEIVER, MARK E. DOTTORE

3 I. EXPLANATION AS TO WHY THIS IS NOT A CASE OF PUBLIC OR GREAT GENERALINTEREST There is no public or great general interest in this case because it concerns only an appellant who is trying, by any means, to delay his pending divorce. As the attached brief will demonstrate: (1) despite Appellant's protestations to the contrary, he never filed a motion with the Trial Court pursuant to Civ. R. 60(B); (2) even if Appellant had filed a motion pursuant to Civ. R. 60(B), his proposition still would fail as a matter of law; (3) the denial of Appellant's motion to set aside the order appointing a receiver is not a final appealable order; and (4) Appellant has made numerous baseless allegations and engaged in pointless litigation in an effort to delay his pending divorce. II. STATEMENT OF THE CASE AND FACTS Plaintiff/Appellee, Mary A. Hummer, hereinafter referred to as "Mrs. Hummer," filed a Complaint for Divorce on February 19, 2009, in the Court of Common Pleas, Division of Domestic Relations, Cuyahoga County, in the matter known as Mary A. Hummer v. Paul Hummer, Case No. DR The case was originally assigned to Judge Timothy M. Flanagan. Upon Judge Flanagan's retirement, Judge Rosemary Grdina Gold, hereafter Icnown as "Judge Gold" assumed responsibility for the case after she was appointed to the Court in April, For the record; initially Mrs. Hummer was represented in the divorce proceedings by Joseph G. Stafford of Stafford & Stafford Co., LPA. Mr. Stafford was replaced by Margaret E. Stanard, - ir Deeerrrber-cri 2009-; -Parrl-Hurnrrer, bre-reinaiter-reiened io--as"m1-hurnrner; ' was-firsi represented by George Zucco, who was replaced by James Cahn and James Lane of the law firm, Herm.ari, Cahn and Associates.

4 After her appointment to the bench, Judge Gold scheduled a full hearing to hear several pending motions on June 1, 2010, all three motions regarding the issue of temporary support. On May 10, 2010, Mrs. Hummer, through her attomey, filed a Motion to Appoint Mark E. Dottore, Receiver. Mrs. Hummer's Motion to Appoint Mark E. Dottore, Receiver, was added to hearing scheduled for June 1, The parties appeared on June 1, 2010 with their respective attomeys. In chambers, the attorneys for the parties discussed the basis for Mrs. Hummer's motion to appoint a receiver. Judge Gold inquired as to whether Mr. Hummer had any objections to the appointment of a receiver. Mr. Lane indicated that, although his client felt the appointment was "unnecessary", he did not object to the appointment, nor did Mr. Lane request that the hearing proceed to provide him the opportunity to challenge Mrs. Hummer's request for the appointment of a receiver. Judge Gold signed the Judgment Entry appointing Mark Dottore as Receiver, hereinafter :erred to as "Receiver," in the presence of the attomeys for the parties. Again, Mr. Lane did not object to the appointment of a receiver nor did he object to the appointment of Mark E. Dottore. The Order appointing Mark E. Dottore as Receiver was journalized on June 1, Husband did not file an appeal of the appointment. The Receiver filed his Oath on June 17, The assets under the control of the Receiver included both a residence located in Hunting Valley, Ohio (herein known as the "Hunting Valley residential property"), and a commereial building located in Oakwood Village, Ohio (the "Oakwood Property"). The Trial Court amplified and expanded upon the authority and responsibilities of the -Receiv^y way of an Of-derjournaTized on July ld, 2T0T0. Mr. Hbmmer d-id notoblect or appeal the July 14, 2010 Order amplifying and expanding the authority and responsibilities of the Receiver.

5 The Receiver filed an Amended Complaint on August 19, 2010, naming Gregory Hummer (Mr. Hummer's brother), Hummer Family LLC, Hummer Building, Hummer Construction, and';delphos Group, Inc. as New Party Defendants. On October 21, 2010, Caryn Groedel ("Attorney Groedel") filed a notice of substitution as counsel for Mr. Hummer. On November 22, 2010, over five (5) months after the appointment of the Receiver, Mr. Hummer filed a Motion to Set Aside and Vacate Order Appointing Receiver and Request for Hearing (the "Motion to Set Aside"). In his Motion to Set Aside, Appellant explicitly stated the motion "is not made under Civ. R. 60(B) because the Order should be vacated as void.`..." Motion to Set Aside at *2 (emphasis in the original). In its December 7, 2010 Judgment Entry (the "December 7 Judgment Entry"), the Trial Court denied the Motion to Set Aside, stating that the Receiver was not only duly appointed, but that Appellant's attacks on the mer'rts of the June 1, 2010 appointment were barred by his failure to timely appeal frott the Order, appointing the Receiver. December 7 Judgment Entry at *4. The Trial Court also noted that Appellant's arguments, made by and through Attomey Groedel, were "strained," "ludicrous," and "[defied] logic." Id. at *2-3. Mr. Hummer appealed the Trial Court's denial of his Motion to Set Aside, filing an Assignments of Error and Corrected Appellate Brief (the "Hummer Appellate Brief") on February 11, Despite his earlier, explicit assertion to the contrary;mr. Hummer claimed before the Eighth'District Court of Appeals that his Motion to Set Aside entitled him to relief under Civ. R. 60(B). Hummer Appellate Brief at * The Eighth District dismissed Mr. Hummer s appea ori Tly 29, I, stating: T) Te Trial-Court's TucTgment Entry den}ang Mr. Hummer's Motion to Set Aside did not constitute a final appealable order, 2) Mr. Hummer's Motion to Set Aside was not made pursuant to Civ. R. 60(B), and 3) that even if Mr. Hummer

6 had filed a 60(B) motion, Civ. R. 60(B) is not a substitute for a direct appeal. Hummer v. Hummer, 8th Dist. No , 2011-Ohio-3767 at 12. On August 9, 2011, the Trial Court issued an order granting the motion of Attoiney Groedel to withdraw as counsel for Mr. Hummer in the divorce proceedings. On September 9, 2011, Attorney Groedel filed a Memorandum in Support of Jurisdiction on behalf of Mr. Hummer (the "Jurisdictional Memorandum"), claiming that the Mr. Hummer is entitled to relief under Civ. R. 60(B) due to the Receiver's alleged fraud. III. LAW AND ARGUMENT A. APPELLANT DID NOT FILE A 60(B) MOTION WITH THE TRIAL COURT AND, THEREFORE, CANNOT NOW APPEAL THE PURPORTED DENIAL OF A 60(B) MOTION TO THE OHIO SUPREME COURT. Issues cannot not be addressed on appeal if they were not first raised in the trial court. See e.g.,,.state ex rel. Zollner v. Industrial Commission of Ohio (1993), 66 Ohio St.3d 276, 611 N.E.2d 0, citing State ex rel. Gibson v. Indus. Comm. (1988), 39 Ohio St. 3d 319, seealso, Barry v. Rolfe, 2008 WL , 2008-Ohio-313, 3131 (Ohio App. 8 Dist. June 26, 2008); Bank of New York v. Jordan, 2007 WL , 2007-Ohio-4293 (Ohio App. 8 Dist., Aug. 23, 2007). In his Jurisdictional Memorandum, Mr. Hummer alleges that the Receiver has committed a series of wrongs bordering upon the "unethical, immoral, criminal, and/or pathological." Jurisdictional Memorandum at *2, 4. Further, in his Jurisdictional Memorandum, Mr. Hummer claims that these: alleged atrocities somehow entitle him to relief under an unenumerated subsection of Civ: R. 60(B). Id. at *5-7. However, the Motion to Set Aside expressly stated that iiiafie'iindei`civ:il:6c(`bj-^ MotiDii tg^s. eiaside-a`t`i-(eiiiphasis-iri tyi'ie-origina):t1'ie Eighth District took note of Mr. Hummer's assertions and in no uncertain terms stated that "Appellant's [Motion to Set Aside] did not move to vacate the receiver pursuant to Civ. R. 60(B)." Hummer v. Hummer, supra at 12, n.5. Because Mr. Hummer never argued in the Trial

7 Court that the appointment of the Receiver should be vacated under Civ. R. 60(B), Mr. Hummer is now barred from making that argument. B. THE APPELLANT'S MOTION TO SET ASIDE FAILS BECAUSE HE FAILED TO FILEA TIMELY APPEAL. It is well established that an order appointing a receiver is a final appealable order. Therefore, such orders must be appealed within thirty (30) days pursuant to App. R. 4(A): See e.g., Cunningham vs. Ohio Police and Fire Pension Fund (8th Dist. 2008), 175 Ohio App. 3d 566, (holding that the appointment of a receiver affects a substantial right, and, therefore, is a final appealable order); Hartley v. Hartley (Ohio App. 9 Dist., Medina, ) No. 03CA0094-M, 20Q4-Ohio-4956, 2004 WL , at 12 (stating that a challenge to an order appointing a receiver must be made within 30 days of its issuance). In the present case, Appellant did not file any challenges to the appointment of the Receiver until over five (5) months after the appointment order had been issued, thereby missing the deadline to file a timely appeal. The judgment of a court appointing a receiver cannot be collaterally attacked where movant failed to attack the appointment for more than a year and six months. Michigan State Industries v. Fischer Hardware Co., (Butler 1934) 50 Ohio App Wife's failure to challenge appointnient of receiver to manage marital business pending divorce within thirty (30) days of appointment precluded challenge to appointment on appeal from judgment granting divorce. Hartley'v. Hartley (Ohio App. 9 Dist., Medina, ) No. 03CA0094-M, Ohio-4956, 2004 WL The determination of whether a receivership should be terminated and control over property restored to the parties is entrusted to sound discretion of the trial court, and court's

8 decision in this regard will not be reversed on appeal absent a showing of abuse of discretion. Milo v. Curtis (Ohio App. 9 Dist., ) 100 Ohio App.3d 1. A corporation and majority shareholder waived on appeal their claim that the trial court granted motion to appoint receiver without hearing testimony or making necessary findings, where they failed to raise their objections in the trial court. Reserve Transp, Services, Inc. v. Burbach 2005 WL (Ohio App. 8 Dist.) 2005-Ohio In the present matter, Mr. Hummer did not oppose the Motion to Appoint a Receiver, did not demand that a hearing be held that day on all the pending motions, including the temporary support motions, and did not appeal the order granting said Motion within the applicable time frame. Instead, Mr. Hummer filed a Motion to Set Aside and Vacate Order over five (5) months after the order appointing the Receiver was granted. Mr. Hummer now hopes to not only magically turn his Motion to Set Aside into a 60(B) motiongbut to turn it into a motion that can overcome his failure to file a timely appeal. See Doe v. Trumbull Cty. Children Servs. Bd. (1986), 28 Ohio St.3d 128, 131 ("It is axiomatic... that Civ. R. 60(B) may not be used as a substitute for appeal."). Mr. Hummer therefore proposes that unless his purported 60(B) motion is considered after the thirty-day appeal period has expired, he is left with no remedy to challenge an allegedly wayward receiver; While a 60(B) motion is certainly not an available remedy to Mr. Hummer, he is not without potential relief. If Mr. Hummer was truly concemed about the Receiver's supposed malfeas'ance, then Mr. Hummer could have filed a Motion to remove the Receiver on - trre^asrs-inai tire-recerver 1-iad engaged ir, cgrrductbeyend- th^ se-ope o his-seui-t appernt-ed authority. See Fifth Third Bank v. Q.W.V. Props., LLC (12th Dist. No. CA , Ohio-4341, at j(42 (denying appellant's motion to remove receiver for supposed conflict of

9 interest); Park Nat'l Bank v. Cattani, Inc. (12th Dist. 2010), 187 Ohio App. 3d 186, (noting that receivers are officers of the court who are subject at all times to the court's order and direction). Any attempt by Mr. Hummer to remove the Receiver, however, would have failed- The Trial Court already had the oppprtunity to review the Receiver's actions and conduct, and faund that he has managed the marital estate in good faith and within his reasonable discretion. See December 7 Judgment Entry at *3-6. Because the Motion to Set Aside is not a 60(B) motion--and because a 60(B) motion would fail even if it had been filed--this Court should not give further consideration to Mr. Hummer's claims. C. THE TRIAL COURT'S DENIAL OF APPELLANT'S MOTION TO SET ASIDE IS NOT A FINAL APPEALABLE ORDER. Courts have held that an order denying a motion to vacate the appointment of a reeeiver is not a final appealable order. See, Industrial Credit Co., v. Ken Ray Corp., 71 Ohio Law Abs In Industrial, supra, as in the case at bar, the order appointing the receiver was not appealed and the Motion to Set Aside and Vacate the Order appointing the Receiver was filed long after the expiration of the time for appeal of the order appointing the receiver. Further, the denial of Mr. Hitinmer's Motion to Set Aside the Order Appointing the Receiver does not constitute a final appealable order, and case law has addressed this issue and has ruled in the negative. T.ie--den;-ai-of a request-to racate--a:.-order appornf.ng a recerverdoes--nof--affect-_axvy substantial right and is not a final appealable order. See e.g., Jamestown Vill. Condominium Owners Ass'n v. Mkt. Media Research, Inc. (8th Dist. 1994), 96 Ohio App. 3d 678, ; Pollina v. Parker(Sept. 23, 1980), 10th Dist. No. 80AP-529, at *2-3; see also Dunn v. Savage

10 (C.A ), 524 F.3d 799, 804 (noting that an order either granting or denying a motion to vacate an order for a receiver is not a final appealable order). In the present case, Mr. Hummer is trying to appeal a denial of his Motion to Set Aside the Order appointing a receiver, which is not a final appealablebrder. As such, the Court should deny Mr. Hummer's petition for certiorari. D. APPELLANT'S ALLEGED CLAIMS OF FRAUD ARE BASELESS ANDMADE SOLELYTO DELAY HIS ONGOING DIVORCE PROCEEDINGS. Finally, Mrs. Hummer urges this Court to ignore Mr. Hummer's baseless claims of fraud. Ever since becoming attorney of record, Attorney Groedel has plagued the Court with unsubstantiated claims of wrongdoing and blatantly incorrect or unsupported conclusions of law. Mr. Hummer argues as proof of the Receiver's fraud his supposedly suspicious selling of the Hunting Valley Property. Jurisdictional Memorandum at *2. However, the Receiver sought the T-rial Court's approval of the sale of the Hunting Valley Property in August After conducting a full- evidentiary hearing, at which Mr. Hummer had the opportunity to crossexamine'witnesses and present his own, the Trial Court granted the Receiver's motion and issued an Order Confirniing the Sale of Real Estate on August 20, Mr. Hummer had a right to timely challenge the sale of the Hunting Valley Property, but he chose not to do so until months later after the transaction had already closed. Further, Mr. Hummer's argument that the Receiver callously terminated commercial leases that put food on the table for his four (4) children is also without merit. Id. at *2. In addition to noting that the Receiver was properly acting within the scope of his authority, the Trial Court aptly found that "[Mr. Hummer]'s attempt to show that the [commercial property] could produce income is not credible." December 7 Judgment Entry at *6. Finally, Mr. Hummer's complaint that the Receiver violated his due process rights is nothing more than a red lierring. Mr. Hummer already argued in the Trial Court that the Receiver had failed to follow certain procedures--including appraisal, notice, and public sale--as required by

11 R.C et seq. The Trial Court rejected Mr. Hummer's complaint as "meritless" because it is well-settled law that R.C. Chapter 2329 does not apply to receiverships. Id. at *34. In lieu of plausible legal arguments based on fact, Mr. Hummer has thrown up sinoke screens to waste the Court's time. See Id. at *3 (noting Appellant's reliance on an,carty twentieth-centurystatute that had been repealed in 1970); Id. at *2 n.1 (noting Mr. Hummer's reliance on an argument that is available only to defendants in criminal cases). The only possible reason Mr. Hummer would engage in such legal maneuverings is to delay the pending divorce proceedings and, in particular, disrupt the Receiver's fixrther actions with regard to the arital estate. III. CONCLUSION For all of the reasons set forth in this Brief, this Court should not accept jurisdiction over this matter. T E. STANARD ( ) ard & Corsi Co., L.P.A Ontario Street, Suite 748 Cleveland, Ohio (216) (216) (fax) marearetstanardgaol.com Attorney for Plaintiff/Appellee

12 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this ^day of October, 2011, a copyo!fthe foregoing was sent by regular mail, postage prepaid, to: Caryn M. Groedel ( ) CARYN GROEDEL & ASSOCIATES CO., LPA Solon Road, Suite 27 Cleveland, OH 44I39 COUNSEL FOR APPELLANT, PAUL HUMMER Pamela MacAdants ( ) MORGANSTERN, MACADAMS, & DEVITO 623 West St. Clair Avenue Cleveland, OH COUNSEL FOR APPELLANT, PAUL HUMMER Sarah Gabinet ( ) KOHRMAN, JACKSON & KRANTZ P.L.L. One Cleveland Center, 20th Floor 1375 East 9th Street Cleveland, OH COUNSEL FOR RECEIVER, MARK E. DOTTORE ARET E. STANARD ( ) 'A4fo"rney for Plaintiff/Appellee