IN THE SUPREME COURT OF OHIO. Relators, Respondent.

Transcription

1 ^ IN THE SUPREME COURT OF OHIO STATE OF OHIO, et rel. CASE NO. MORRIS KINAST, M.D. AND NEUROCARE CENTER, INC Holiday St., N.W. P.O. Box Canton, OH O i 5 9 vs. Relators, THE HONORABLE FRANK G. FORCHIONE Stark County Common Pleas Court 115 Central Plaza N., Suite 400 Canton, OH Respondent. MOTION OF RELATORS MORRIS KINAST, M.D. AND NEUROCARE CENTER, INC. FOR EMERGENCY STAY AND EXPEDITED ALTERNATIVE WRIT TffLi^^ ^^^ ^ ^ ^^^3 CLFRK Of COHRT RFWkE CUHHT JF HIO

2 Respectfully submitted, Dougl s G. Leak, Esq. (0045 COUNSEL OF RECORD Roetzel & Andress, LPA 1375 East 9th Street, 9th Floor Cleveland, OH Tel ephone : Facsimile: dleak@ralaw.com Steven J. Hupp, Esq. ( ) Jennifer R. Becker, Esq. ( ) Ronald A. Margolis, Esq. ( ) Bonezzi, Switzer, Murphy, Polito & Hupp Co., LPA 1300 E. 9t" Street, Suite 1950 Cleveland, OH Phone: Fax: shupp@bsmph.com jbecker@bsmph.com rmargolis@bsmph.com Attorneys for Realtors Morris Kinast, M.D. and Neurocare Center, Inc. 2

3 IN THE SUPREME COURT OF OHIO STATE OF OHIO, et rel. ^ CASE NO. MORRIS KINAST, M.D. AND NEUROCARE CENTER, INC Holiday St., N.W. P.O. Box Canton, OH vs. Relators, THE HONORABLE FRANK G. FORCHIONE Stark County Common Pleas Court 115 Central Plaza N., Suite 400 Canton, OH Respondent. MOTION FOR EMERGENCY STAY AND EXPEDITE ALTERNATIVE WRIT NOW COME Realtors Morris Kinast, M.D. and Neurocare Center, Inc. ("Dr. Kinast") pursuant to S.Ct.Prac.R. XIV, Section 4 and request an emergency stay of Respondent Judge Forchione exercising judicial and/or quasi-judicial power to improperly allow a non-jury trial to proceed in Ray Berry, Jr. vs. Morris Kinast, MD., et al., Stark County Common Pleas Case No CV in direct violation of Dr. Kinast's Constitutional right to a jury trial. Respondent Judge Forchione should be ordered to stay the Order granting Plaintiff's Motion To Strike Defendants' Jury Demand and proceeding with a non-jury trial in a complex medical malpractice/wrongful death action pending the resolution of Dr. Kinast's Writs of Prohibition and Mandamus. A stay of the non-jury trial is legally justified and, more importantly, is in the interests of justice. This Motion is more fully supported in the attached Memorandum. 3

4 MEMORANDUM IN SUPPORT 1. INTRODUCTION Relators Morris Kinast, M.D. and Neurocare Center, Inc. ("Dr. Kinast") seek a Writ of Prohibition, Alternative Writ and Writ of Mandamus against Respondent The Honorable Frank G. Forchione, Stark County Common Pleas Court, in his official capacity as the presiding Judge ("Judge Forchione") in Berry vs. Morris Kinast, MD., Stark County Case No CV and involving his Order denying Dr. Kinast a jury trial scheduled to commence on January 29, 2013 pertaining to a medical malpractice action involving the tragic and unfortunate death of an 11 year old boy. Dr. Kinast's Writ of Prohibition seeks to prevent Judge Forchione from conducting a non-jury trial that will indisputably deprive Dr. Kinast of his Constitutional right to a jury trial guaranteed to all litigants pursuant to the Seventh Amendment of the United States Constitution and Article 1, Section 5 of the Ohio Constitution. Dr. Kinast's Alternative Writ seeks an emergency stay preventing Judge Forchione from proceeding with a non-jury trial on January 29, 2013 until the Writ of Prohibition is resolved. Dr. Kinast states that absent the granting of the Alternative Writ now sought, Judge Forchione could act in the interim to Dr. Kinast's detriment and in violation of his Constitutional rights afforded him by both the United States and Ohio Constitutions for which Dr. Kinast has no adequate remedy at law. Dr. Kinast also seeks a Writ of Mandamus from this Court directing Judge Forchione to vacate the Order denying Dr. Kinast's jury demand. II. STATEMENT OF CASE AND FACTS Relators Dr. Kinast and Neurocare Center, Inc. are Defendants in the case captioned Ray Berry, Jr. vs. Morris Kinast, M.D., et al., Stark County Common Pleas Case No CV

5 Respondent The Honorable Frank G. Forchione is the presiding judge in the case. The underlying medical malpractice and wrongful death action involves the tragic and unfortunate suicide of 11- year old Christian Berry, a patient of Dr. Kinast, a pediatric neurologist. On September 9, 2011, Plaintiff filed a Complaint for medical malpractice/wrongful death against Dr. Kinast and Neurocare Center, Inc. On November 4, 2011, Dr. Kinast filed an Answer with a timely and proper Jury Demarnd pursuant to Civ. R. 38(B) which governs the manner in whicha Jury Demand is presented to the Court and other parties. When Dr. Kinast filed the Answer with the Jury Demand, there existed neither a Court Order nor a Stark County Local Rule requiring the parties to post a jury demand deposit. The Stark County Common Pleas Docket for this case does not reflect any Order appointing a Magistrate to this case. Stark County Common Pleas Court's Local Rules do not provide for the automatic appointment of a Magistrate to any particular case. Without either a Court Order or a Local Rule appointing a Magistrate to this case, on November 29, 2011, Magistrate Stocker issued a Pretrial Order setting pertinent dates, i.e. discovery deadlines, motion deadlines, trial date, etc. Included within Magistrate Stocker's Pretrial Order is the statement that "all required court cost deposits for jury demands must be paid within five (5) days of the demand." Magistrate Stocker further stated that "should costs for a jury demand not be paid, the Court will strike the jury demand." Magistrate Stocker's Pretrial Order of November 29, 2011 post-dated Dr. Kinast's November 4, 2011 Answer and Jury Demand by twenty-five (25) days. Dr. Kinast could not have logically complied with the November 29, 2011 Order because it did not exist at the time Dr. Kinast filed the Answer and Jury Demand on November 4, Dr. Kinast could not have logically complied with the five-day period to pay the jury demand deposit since Magistrate Stocker's 5

6 Pretrial Order was filed twenty-five (25) days after the filing of Dr. Kinast's Answer and Jury Demand on November 4, On August 23, 2012, Judge Forchione conducted a Hearing with all counsel present. At the August 23, 2012 Hearing, Plaintiffs counsel expressly represented to Judge Forchione and defense counsel that this case was going to be tried to a jury. On August 29, 2012 a Judgment Entry was entered memorializing what occurred at the August 23, 2013 Hearing. In the August Judgment Entry, Judge Forchione continued the trial date to January 29, Also included in the August 29, 2012 Judgment Entry was an Order that Jury Instructions were to be filed on or about January 23, So, as of August 29, 2012, Judge Forchione was operating under the impression that a jury trial was to commence on January 29, 2013 since Jury Instructions are necessary for a jury trial. On January 14, 2013, merely fifteen (15) days before the date for the commencement of trial, Plaintiff filed a Motion to Strike Defendants' Jury Demand. On January 15, 2013, Defendants paid the jury demand deposit with the Stark County Common Pleas Court's Clerk of Court's office and simultaneously filed a Notice of Jury Demand Deposit With Proof of Service. On January 16, 2013, Defendants filed their Brief in Opposition To Plaintiffs Motion to Strike Defendants' Jury Demand. In their Brief in Opposition to Plaintiffs Motion to Strike Defendants' Jury Demand, Defendants argued the following: a. Defendants are entitled to a jury trial pursuant to the Seventh Amendment of the United States Constitution, Section 5, Article 1 of the Ohio Constitution and Civ. R. 3 8(A); b. The Order requiring payment of deposits for jury demands as included in this Court's November 29, 2011 Judgment Entry/Magistrate's Pretrial Order was void at the time of issuance because Defendants were incapable of complying with the same; 6

7 c. Loc. R fails to prescribe a time for filing the jury demand deposits and does not explicitly state that Defendants' right to a jury trial is waived if payment is not made by a specific time; d. This Court and the parties have proceeded as if this matter would be tried before a jury as evidenced by this Court's August 29, 2012 Judgment Entry which requires Jury Instructions to be filed on or before January 23, 2013; and e. Defendants paid the jury demand deposit on January 15, (Id.) On January 21, 2013, Defendants filed their Supplemental Authority In Support Of Their Brief In Opposition To Plaintiffs Motion To Strike Defendants' Jury Demand. In their Supplemental Authority, Defendants argued that pursuant to Civ. R. 53, Magistrate Stocker did not have subject matter jurisdiction to enter any Orders and, consequently, the November 29, 2011 Magistrate's Order requiring Defendants to pay the jury demand deposit within five (5) days of the jury demand was null and void. The bases for Magistrate Stocker's lack of subject jurisdiction was that Magistrate Stocker was neither appointed nor referenced in this case. On January 22, 2013, Judge Forchione conducted an Oral Hearing on various pending motions, including Plaintiff's Motion to Strike Defendarnts' Jury Demand. With respect to Plaintiffs Motion to Strike Defendants' Jury Demand, when presented with Defendants' argument of a lack of subject matter jurisdiction pursuant to Civ. R. 53, Judge Forchione did not address this argument; instead, Judge Forchione summarily granted Plaintiffs Motion To Strike Defendants' Jury Demand. Consequently, Judge Forchione ordered the parties to proceed to a non-trial jury on January 29, Due to the obvious prejudicial and biased manner in which Judge Forchione conducted the Oral Hearing on January 21, 2013, Defendants were compelled to file Affidavits for 7

8 Disqualification of Judge Forchione with this Court. Presently, there has been no indication from Judge Forchione that the non-jury trial scheduled to commence on January 29, 2013 is off. III. LAW AND ARGUMENT An alternative writ operates as a stay of the judicial or quasi-judicial act sought to be prohibited. Green v. Kubicki, 120 Ohio St.3d 1521, 2009-Ohio-698. "After the time for filing an answer to the complaint or motion to dismiss, the Supreme Court will either dismiss the case or issue an alternative or a peremptory writ, if a writ has not already been issued." St.Ct.Prac.R. X(5). Although this Court "generally wait[s] for a response before rending this determination... under S.Ct.Prac.R. XIV(4), a party may request emergency relie " State ex rel. Stern v. Mascio (1998), 81 Ohio St.3d 297,298, 691 N.E.2d 253. It is then a matter of discretion whether a "case merits an expedited determination." Id. Because of the unique circumstances of this case IN WHICH Respondent Judge Forchione has ordered Dr. Kinast to proceed with a non-jury trial, this Honorable Court should act immediately to restrain Respondent from unlawfully exercising judicial or quasi-judicial jurisdiction by proceeding with a non-jury trial in violation of Dr. Kinast's Constitutional right to a jury trial. The stay and expedited alternative writ should be granted to avoid the deprivation of Dr. Kinast's Constitutional right to a jury trial while this Honorable Court adjudicates Dr. Kinast's Writs of Prohibition and Mandamus. As more fully set forth in Dr. Kinast's Writs of Prohibition and Mandamus, Respondent Judge Forchione lacks the jurisdiction and/or authority to proceed with a non-jury trial. Dr. Kinast presents a strong case for his Writs of Prohibition and Mandamus and, therefore, this Honorable Court should grant a stay and an expedited Alternative Writ. 8

9 Respectfully submitted, s ) L/ J_ Douglas G. eak, Esq. ( ) COUNSEL OF RECORD Roetzel & Andress, LPA 1375 East 9th Street, 9th Floor Cleveland, OH Telephone: Facsimile: dleak@ralaw.com Steven J. Hupp, Esq. ( ) Jennifer R. Becker, Esq. ( ) Ronald A. Margolis, Esq. ( ) Bonezzi, Switzer, Murphy, Polito & Hupp Co., LPA 1300 E. 9th Street, Suite 1950 Cleveland, OH Phone: Fax: shupp@bsmph.com jbecker@bsmph.com Attorneys for Realtors Morris Kinast, M. D. and Neurocare Center, Inc. 9

10 PROOF OF SERVICE A copy of the foregoing was served on January 25, 2013 pursuant to Civ.R. 5(B)(2)(c) by mailing it by United States mail to: Angela T. Vagotis, Esq. Attorney for Plaintiff Angela T. Vagotis Co., L.P.A. 220 Market Avenue South, Suite 940 Canton, OH Brian Zimmerman, Esq. Co-Counsel for Plaintiff 236 Third Street, SW Canton, OH "V-0, s -^Y Douglas G. Leak, Esq. ( Steven J. Hupp, Esq. ( ) Jennifer R. Becker, Esq. ( ) Ronald A. Margolis, Esq. ( ) 10