No ORIGINAL ACTION SEEKING WRITS OF PROHIBITION AND MANDAMUS. STATE ex rel. MORRIS KINAST, M.D. AND NEUROCARE CENTER, INC.

Transcription

1 AN No In the Supreme Court of Ohio ORIGINAL ACTION SEEKING WRITS OF PROHIBITION AND MANDAMUS STATE ex rel. MORRIS KINAST, M.D. AND NEUROCARE CENTER, INC. Relators V. THE HONORABLE FRANK G. FORCHIONE Respondent BRIEF OF RELATORS MORRIS KINAST, M.D. AND NEUROCARE CENTER, INC. IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS DEBORAH A. DAWSON, Esq. ( ) Assistant Chief, Civil Division 110 Central Plaza South, #510 Canton, OH Telephone: Facsimile: Attorney for Respondent iru ^ ^^ ^ ^ f n; I ' CLERK OF ^,'OUP: SUPREiAE CflUR) 0F ONIO DOUGLAS G. LEAK, Esq. ( )(Counsel of Record) dleak@ralaw.com Roetzel & Andress, LPA 1375 East Ninth Street; 9'' Floor Cleveland, OH Telephone: ; Facsimile: 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 Telephone: ; Facsimile: shupp@bsmph.com jbecker@bsmph.com rmargolis@bsmph.com Attorneys for Realtors Morris Kinast, MD. and Neurocare Center, Inc.

2 IN THE SUPREME COURT OF OHIO STATE OF OHIO, et rel. MORRIS KINAST, M.D. AND NEUROCARE CENTER, INC Holiday St., N.W. P.O. Box Canton, OH vs. Relators, CASE NO ORIGINAL ACTION SEEKING WRITS OF PROHIBITION AND MANDAMUS ^ RELATORS MORRIS KINAST, M.D. AND NEUROCARE CENTER, INC.'S BRIEF IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS THE HONORABLE FRANK G. FORCHIONE Stark County Common Pleas Court 115 Central Plaza N., Suite 400 Canton, OH Respondent Relators hereby request that this Court deny Respondent's Motion To Dismiss because Relators' Writs of Prohibition and Mandamus undoubtedly state a claim upon which relief can be granted. More specifically, it is patently and unambiguously clear that Respondent Judge Frank G. Forchione lacked judicial authority to issue an Order to proceed with a non-jury civil trial based upon a null and void Magistrate Order, in violation of Relators' Constitutional rights to a jury trial and in direct conflict with Stark County Local Rules. This is a case in which Relators were punished ex post facto for failing to comply with a null and void Magistrate's Pretrial Order that was issued subsequent to the timely filing of Relators' Answer With Jury Demand. Although Relators complied with both the Civil and Local Rules when they filed their Jury Demand, Respondent went beyond his jurisdiction to order a non-jury trial by enforcing a Pretrial Order that was impossible for Relators to comply with in 2

3 the first place. In fact, when Magistrate Gretchen Stocker issued her Pretrial Order, Relators were ex post facto technically in violation of the portion requiring payment of the jury demand deposit, despite their compliance with the Civil and Local. Rules. Consequently, Respondent clearly lacked jurisdiction to enforce the Magistrate's Pretrial Order that outrightly deprived Relators of their unfettered Constitutional rights to a jury trial, and that was also directly in violation of Stark County Local Rules. Further, both Magistrate Gretchen Stocker and Respondent lacked subject matter jurisdiction to deprive Relators of their Constitutional rights to a jury trial and, therefore, Relators' Writs of Prohibition and Mandamus should proceed before this Court on the merits. In ordering a non-jury trial, Respondent relied upon Magistrate Stocker's Pretrial Court Order but Magistrate Stocker's purported authority did not comply with Civ. R. 53 for several reasons. Relators' Writs sufficiently allege this lack of subject matter jurisdiction with enough particularity to withstand Respondent's Motion To Dismiss pursuant to Civ. R. 12(B)(6). Moreover, contrary to Respondent's position, a dismissal of Relators' Writs will inevitably result in irreparable harm for which there exists no other adequate remedy in the course of the law. Prompt and immediate review by this Court is essential in order to reverse a clear deprivation of Relators' Constitutional rights to a jury trial and, at the same time, prevent Relators from suffering irreparable harm that cannot be avoided by other legal means. The reasons for denying Respondent's Motion To Dismiss are set forth in the attached Memorandum. 3

4 Respectfully submitted, I Q ouglas G. Leak, Esq. (00 554) COUNSEL OF RECORD Roetzel & Andress, LPA 1375 East 9th Street, 9b Floor Cleveland, OH Tel ephone : Facsimile: dleak2(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 rmargolis@bsmph.com Attorneys for Realtors Morris Kinast, M.D. and Neurocare Center, Inc. 4

5 MEMORANDUM 1. INTRODUCTION The crux of Relators Morris Kinast, M.D. and Neurocare Center, Inc.'s Writs of Prohibition and Mandamus is that Respondent The Honorable Frank G. Forchione lacked subject matter jurisdiction to order a non-jury civil trial based solely upon the null and void Pretrial Order of Magistrate Gretchen Stocker issued on November 29, 2011, which Relators were incapable of complying with at the outset. For several factual and legal reasons as set forth in Relators' Writs of Prohibition and Mandamus, Relators have sufficiently stated a claim upon which relief can be granted. Relators adequately aver in their Writs of Prohibition and Mandamus Respondent's lack of judicial authority that is patently clear and unambiguous. For example, Relators' Writs adequately allege the following with supporting evidentiary proof: 14. On November 4, 2011, Dr. Kinast filed an Answer with a timely and proper Jury Demand pursuant to Civ. R. 38(B) which governs the manner in which a Jury Demand is presented to the Court and other parties. (Exhibit "B") 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 ajury demand deposit. (Exhibit "C"). 16. The Stark County Common Pleas Docket for Ray Berry, Jr. vs. Morris Kinast, M.D., et al., Stark County Common Pleas Case No CV does not reflect any Order appointing a Magistrate to this case. (Id.) 17. Stark County Common Pleas Court's Local Rules do not provide for the automatic appointment of a Magistrate to any particular case. (Exhibit "D"). ' The Exhibits refer to those attached to Relators' Writs of Prohibition and Mandamus. 5

6 18. 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. (Exhibit "E"). 19. 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." (Id.) 20. Magistrate Stocker further stated that "should costs for a jury demand not be paid, the Court will strike the jury demand." (Id.) 21. 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. (Exhibit "C"). 22. 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 Pretrial Order was filed twenty-five (25) days after the filing of Dr. Kinast's Answer and Jury Demand on November 4, Judge Forchione lacked subject matter jurisdiction pursuant to Civ. R. 53 to grant Plaintiff's Motion to Strike Defendants' Jury Demand since Judge Forchione's Order was based upon a null and void Order from Magistrate Stocker dated November 29, Civil Rule 53 requires an Order or reference for a Magistrate to have authority to act under Civ. R

7 43. In this case, there exists no Order appointing Magistrate Stocker to this case; there exists no reference on the Docket for this case referencing Magistrate Stocker for this case; there exists no Local Rule providing for an automatic appointment of Magistrate Stocker; the Stark County Common Pleas website contains no blanket journalized Order appointing Magistrate Stocker to this case. 44. Since Magistrate Stocker did not have subject matter jurisdiction under Civ. R. 53 to enter any orders, including the November 29, 2011 Order, Judge Forchione, likewise, lacked subject jurisdiction to grant Plaintiff's Motion To Strike Defendants' Jury Demand that was based upon the null and void November 29, 2011 Order of Magistrate Stocker. 45. Judge Forchione's Order granting of Plaintiff's Motion To Strike Defendants' Jury Demand, even though Defendants actually paid the jury demand deposit, constitutes a deprivation of Dr. Kinast's "right to a jury trial" guaranteed under the 7th Amendment of the United States Constitution and Article 1, Section 5 of the Ohio Constitution. 46. Judge Forchione's Order granting Plaintiff's Motion To Strike Defendants' Jury Demand, even though Defendants actually paid the jury demand deposit, constitutes a deprivation of Dr. Kinast's "right to a jury trial" guaranteed by Civ. R. 38(B). 47. Judge Forchione's Order granting Plaintiff's Motion To Strike Defendants' Jury Demand, even though Defendants actually paid the jury demand deposit, violates Stark County's Loc. R which does not include the requisite language to permit a waiver of a jury trial and, also, does not require a jury demand deposit within a certain time frame. 48. Consequently, Respondent Judge Forchione lacked both jurisdiction and the authority to grant Plaintiff's Motion To Strike Defendants' Jury Demand. 7

8 59 Respondent Judge Forchione lacked jurisdiction and the authority to grant Plaintiff's Motion to Strike Defendants' Jury Trial Demand and to allow a non-jury trial to proceed. 60. In order to protect Dr. Kinast's Constitutional right to a jury trial, Dr. Kinast is legally entitled to a Writ of Mandamus instructing Respondent Judge Forchione to revoke the Order granting Plaintiffs Motion To Strike Defendants' Jury Demand and proceeding with a non-jury trial. 61. Dr. Kinast lacks an adequate remedy at law that will timely and wholly prevent Respondent Judge Forchione from unjustifiably proceeding to a nonjury trial in violation of Dr. Kinast's Constitutional right to a jury trial. (Relators' Writ of Prohibition and Mandamus, 14-23; 41-48; 59-61)(Emphasis Added). Relators' Writs of Prohibition and Mandamus state good grounds for relief as a result of Respondent's exercising of jurisdiction that is not authorized by law. On the other hand, what is conspicuously missing from Respondent's Motion to Dismiss is any analysis and/or challenge to the sufficiency of Relators' allegations as set forth in their Writs of Prohibition and Mandamus. Respondent's Civ. R. 12(B)(6) Motion to Dismiss is undoubtedly an improper vehicle in which to attempt to attack the merits of this Prohibition/Mandamus action. Relators respectfully submit that in denying Relators a jury trial in a medical malpractice action, Respondent has acted without jurisdiction and has effectively compromised all litigants' Constitutional rights to a jury trial. Relators urge this Court to deny Respondent's Motion to Dismiss in order to permit the presentation of evidence and the submission of merit briefs. 8

9 II. STATEMENTS OF THE CASE AND FACTS Relators Dr. Kinast and Neurocare Center, Inc. are Defendants in the case captioned Ray Berry, Jr. vs. Morris Kinast, MD., et al., Stark County Common Pleas Case No CV 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 Demand pursuant to Civ. R. 38(B) which governs the rnanner in which a 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. As such, when Relators filed their Jury Demand on November 4, 2011, they were under no legal duty, whatsoever, to pay a deposit for their Jury Demand. Although Loc.R addresses "Security for Costs," and references $200 for a Jury Demand, Loc.R is completely devoid of any guidelines and/or procedures with respect to the paying of a jury demand deposit. For example, Loc.R does not provide for any rules/procedures with any of the following regarding a jury demand deposit: (1) payment deadline; (2) manner of payment; (3) ramifications if no payment is made; or (4) a failure to pay a jury demand deposit will result in a jury waiver. So, when Relators properly filed their Jury Demand on November 4, 2011, they were not in violation of Stark County Local Rules. 9

10 The Stark County Common Pleas Docket for this case does not reflect any Order appointing a Magistrate to this case. Further, Stark County Common Pleas Court's Local Rules do not provide for the automatic appointment of a Magistrate to any particular case. Consequently, when Relators filed their Answer with Jury Demand and at no time thereafter, Magistrate Gretchen Stocker was never appointed pursuant to Civ. R. 53 to hear any matters in this case or to exercise any authority in this 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 was 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." Of importance, 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. Consequently, 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, Additionally, Magistrate Stocker's Pretrial Order required payment of the jury demand deposit within five (5) days of the filing of the Jury Demand. Pursuant to the Magistrate's Pretrial Order, Relators' Jury Demand deposit would have been due on November 9, 2011, i.e. five (5) days after the filing of their Jury Demand on November 4, Yet, on November 9, 2011, no Pretrial Order existed with respect to a jury demand deposit. In other words, Relators had no notice at all via any Orders or Local Rules that when they filed their Jury Demand on November 4, 2011, they were required to pay a deposit by November 9, Tech.nically speaking, when Magistrate, 10

11 Stocker issued her November 29, 2011 Pretrial Order, Relators were already in violation of her Order for failing to pay the Jury Demand deposit on November 9, 2011 despite any prior notice to do so. On August 23, 2012, Respondent conducted a Hearing with all counsel present. At the August 23, 2012 Hearing, Plaintiffs counsel expressly represented to Respondent 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 29, 2012 Judgment Entry, Respondent 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, Respondent 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. 38(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; 11

12 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, On January 21, 2013, Defendants filed their Supplemental Authority In Support Of Their Brief In Opposition To Plaintiff's 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 basis for Magistrate Stocker's lack of subject jurisdiction was that Magistrate Stocker was neither appointed nor referenced in this case in accordance with Civ. R. 53. In the early stages of this original action, Respondent's counsel produced an Order dated June 4, 2009 pertaining to Magistrate Stocker.Z However, the June 4, 2009 Order, which is purported to comply with Civil Rule 53, fails to reference a particular type or types of cases in which Magistrate Stocker has authority and, therefore, it fails to comply with the requirements for appointing a magistrate. Specifically, the Order at issue provides as follows: Pursuant to Ohio Civil Procedure Rule 53 and Ohio Criminal Procedure Rule 19, the Court hereby appoints Gretchen Stocker as a Magistrate for the Stark County Court of Common Pleas, Canton, Ohio. Magistrate Stocker will perform the duties and obligations 2 The June 4, 2009 Order was attached to Respondent's Motion to Quash the Subpoena for Respondent's deposition filed in this case on February 11,

13 given to her by the Court subject to Civ. R. 53 and Crim. R. 19. This appointment is for an indefinite period of time until further order of the Court. (See June 4, 2009 Order attached to this Brief.) It appears that this Order was issued when Magistrate Stocker was hired by the Stark County Common Pleas Court. But, the Order only provides that Magistrate Stocker "will perform the duties and obligations given to her by the Court." The Order does not list any category of cases in which Magistrate Stocker can perform her duties and obligations. More importantly, the June 4, 2009 Order does not automatically appoint Magistrate Stocker to this particular case. On January 22, 2013, Respondent conducted an Oral Hearing on various pending motions, including Plaintiff's Motion to Strike Defendants' Jury Demand. With respect to Plaintiff's Motion to Strike Defendants' Jury Demand, when presented with Relators' argument of a lack of subject matter jurisdiction pursuant to Civ. R. 53, Respondent did not address this argument. Instead, Respondent summarily granted Plaintiff s Motion To Strike Relators' Jury Demand. Consequently, Respondent ordered the parties to proceed to a non-trial jury on January 29, On January 25, 2013, Relators filed this Original action seeking a Writ of Prohibition and Writ of Mandamus. Relators have sufficiently alleged that Respondent's lack of jurisdiction is patently and unambiguously clear. Clearly, Respondent lacked subject matter jurisdiction to base his denial of a jury trial 'on a null and void Magistrate Pretrial Order, i.e. pursuant to Civ. R. 53, Magistrate Stocker was never appointed in this case to hear any matters or to exercise any authority over this case. Moreover, Respondent lacked jurisdiction to ex post facto deny 13

14 Relators' Constitutional rights to a jury trial on the basis that they failed to comply with a null and void Magistrate Order that indisputably post-dated the proper filing of their Jury Demand. Respondent's Motion to Dismiss does not sufficiently challenge the allegations of Relators' Writs of Prohibition and Mandamus and, therefore, his Motion should be denied. III. LAW AND ARGUMENT Instead of addressing the sufficiency of Relators' allegations in their Writs of Prohibition and Mandamus as required by Civ. R. 12(B)(6), Respondents are irnproperly requesting this Court to summarily dispose of this case on its merits without the presentation of evidence or submission of merit briefs. Despite Respondent's claims, Relators have alleged sufficient facts and legal grounds in their Writs to defeat Respondent's Civ. R. 12(B)(6) Motion to Dismiss. A Civ. R. 12(B)(6) motion to dismiss for failure to state a claim may be granted only when it appears beyond doubt from the face of the petition, presuming the allegations contained therein are true, that the relator can prove no facts which would warrant the relief sought. State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 537 N.E.2d 641 (1989). A motion to dismiss should be denied where the petition contains, with sufficient particularity, a statement of the relief sought and provides the respondent with reasonable notice of the claim asserted. State ex rel. Hanson vs. Guernsey, 65 Ohio St.3d 545, 605 N.E.2d 378 (1992). In addressing a motion to dismiss pursuant to Civ. R. 12(B)(6), all factual allegations are presumed true and all reasonable inferences are made in the non-moving party's favor. Goudlock v. Voorhies, 119 Ohio St.3d 398, 2008-Ohio-4787, 894 N.E.2d 692. Civil Rule 12(B)(6) motions attack the sufficiency of the complaint and may not be used to summarily review the merits of a petition for relief. State ex rel. Horwitz v. Cuyahoga Cty Court of Common Pleas, Probate Div., 650 Ohio St.3d 323, 603 N.E.2d 1005 (1992). A 14

15 dismissal pursuant to Civ. R. 12(B)(6) based upon the merits is unusual and should be granted with great caution rather than setting forth a new standard. State ex rel. Edwards v. Toledo City Sch. Dist. Bd. Of Educ., 72 Ohio St.3d 106, 647 N.E. 2d 799 (1995). In this case, instead of addressing the sufficiency of Relators' allegations in their Writs of Prohibition and Mandamus, Respondent is simply asking this Court to engage in a summary review of the merits without the benefit of the presentation of evidence or the submission of merit briefs. Respondent's Civ. R. 12(B)(6) Motion lacks merit because it fails to adequately refute Relators' allegations that relief in both Prohibition and Mandamus is available in order to restrain Respondent from acting in excess of his lawful jurisdiction. Respondent exceeded his lawful subject matter jurisdiction by ex post facto enforcing a null and void Magistrate Order that outrightly denies Relators their Constitutional rights to a jury trial. Respondent's Motion to Dismiss must be denied so that this case can proceed on its merits. A. Relators' Writ Of Prohibition States Good Grounds For Relief In Prohibition Because Respondent's Conduct Of Denying Relators A Jury Trial Lacks Subject Matter Jurisdiction In order to obtain a writ of prohibition, the relator must show that (1) the court against whom the writ is sought is exercising or about to exercise judicial power; (2) the exercise of that power is unauthorized by law; and (3) denial of the writ will result in injury for which no other adequate remedy exists in the ordinary course of the law. State ex rel. Cleveland Elec. Illum. Co. vs. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 447, 727 N.E.2d 900 (2000). If a respondent patently and unambiguously lacks jurisdiction, a writ of prohibition will not only correct the results of the jurisdictionally unauthorized action but will also prevent any future unauthorized exercise of jurisdiction. State ex rel. Engelhart vs. Russo, 131 Ohio St.3d 137, 961 N.E.2d 118, 2012-Ohio-47. The third requirement of a lack of an adequate remedy of law need not 15

16 be proven in cases of patent and unambiguous lack of jurisdiction. State ex rel. Cleveland v. Sutula, 127 Ohio St.3d 131, 937 N.E.2d 88, 2010-Ohio In the instant case, there is no dispute that Respondent was exercising and was going to exercise judicial power in the underlying case by proceeding with a non-jury trial. The fundamental question in this case is whether that exercise of judicial power by Respondent patently and unambiguously lacked jurisdiction. For the reasons that follow, Relators' Writ of Prohibition sufficiently pleads facts showing that Respondent's exercise of judicial power was patently and unambiguously unauthorized by law. 1. Respondent Did Not Have Jurisdiction To Ex Post Facto Deny Relators A Jury Trial On November 29, 2011, a purported Order of Magistrate Stocker was docketed in the Berry case requiring the Relators to pay their Jury Demand within five (5) days of the demand. Yet, Relators had already timely and properly filed their Answer with a Jury Demand on November 4, Defendants could not have complied with the Court's Order of November 29, 2011, because at the point that the Order was filed, the five (5) day requirement of the Jury Demand had already expired. Magistrate Stocker's November 29, 2011 Pretrial Order and then Respondent's subsequent enforcement of the Jury Demand deposit effectively constituted an improper ex post facto denial of Relators' Constitutional rights to a jury trial. In other words, Respondent essentially ignored the fact that when Relators filed their Answer with Jury Demand on November 4, 2011, Relators were not in violation of any Civil Rule, Local Rule or Court Order. Yet, by subsequently enforcing a Pretrial Order that post-dated the proper filing of Relators' Jury Demand, Respondent exceeded his jurisdiction in punishing Relators ex post facto. Respondent's ex post facto denial of a jury trial for Relators is the very type of relief that is 16

17 proper under Relators' Writs of Prohibition and Mandamus. For this reason alone, Respondent's Motion To Dismiss should be denied. 2. Respondent Lacked Subject Matter Jurisdiction To Deny Relators A Jury Trial Based Upon A Null And Void Magistrate Pretrial Order Pursuant To Civ. R. 53 Ohio law is very precise and unambiguously clear as to the requirements for the valid appointment of a magistrate as set forth in Civ. R. 53. When the November 29, 2011 Order is read in context with the mandates of the Ohio Rule of Civil Procedure, it fails to survive scrutiny, thereby compelling the conclusion that Magistrate Stocker lacked subject matter jurisdiction when she issued said Order. Specifically, Civ. R. 53(D)(l)(a) sets forth the manner in which cases may be referred to a magistrate: (Emphasis added). A court of record may, for one or more of the purposes described in Civ.R.53(C)(1), refer a particular case or matter or category of cases or matters to a magistrate by a specific or general order of reference or by rule. Civil Rule 53(D)(1)(a) provides that a magistrate may be appointed to hear a particular case or matter or category of cases or matters in one of the following three ways: 1) An individual journalized order of reference in a particular case or several cases; 2) A blanket journalized order of reference in a particular type or types of cases, or; 3) A local rule or rules providing for automatic reference in certain types of cases. White v. White, 50 Ohio App.2d 263, 267, 362 N.E.2d 1013 (8t" Dist. 1977); see also Davis v. Reed, 8th Dist. No , 2000 WL (Aug. 31, 2000). 17

18 In the instant case, no "individual joumalized order of reference" exists appointing Magistrate Stocker to perform any of the duties set forth in Ohio Civ. R. 53(C)(1). White, supra; (See Court Docket attached as Exhibit "C" to Writs). Further, no local rule exists in Stark County "providing for automatic reference in certain types of cases." (See Exhibit "D" attached to Writs). Therefore, the first and third method for appointing a magistrate as set forth in Civ. R. 53 and interpreted in White and Davis are not present in the instant matter. Accordingly, the only manner in which Magistrate Stalker could have possibly gained subject matter jurisdiction to permit her to issue the Magistrate Order of November 29, 2011, was through a "blanket journalized order of reference in a particular type or types of cases." However, the June 4, 2009 Order does not provide for such a blanket reference in any particular case, including this case. The June 4, 2009 Order at issue provides as follows: (See attached). Pursuant to Ohio Civil Procedure Rule 53 and Ohio Criminal Procedure Rule 19, the Court hereby appoints Gretchen Stocker as a Magistrate for the Stark County Court of Common Pleas, Canton, Ohio. Magistrate Stocker will perform the duties and obligations given to her by the Court subject to Civ. R. 53 and Crim. R. 19. This appointment is for an indefinite period of time until further order of the Court. This Order utterly fails to comply with the requirement in Civ. R. 53 that a general order of reference set forth the "particular type or types of cases." White, supra. In order to be a valid general order of reference, the June 4, 2009 Order needed to reference a type or types of cases such as foreclosures, child support or divorces. Instead, the Order does not list any category of cases and only states that the magistrate "will perform the duties and obligations given to her by the Court." 18

19 This statement fails to meet the requirements of Civ. R. 53 and even suggests that a subsequent Order would be issued either setting forth the category of case on which the magistrate can act or a subsequent individual order for a particular case. No such order exists in this case. Consequently, Magistrate Stocker lacked subject matter jurisdiction to issue any orders in the instant action and, therefore, Respondent, likewise, lacked subject matter jurisdiction to enforce Magistrate Stocker's null and void Pretrial Order of November 29, Respondent Lacked Subject Matter Jurisdiction To Deny Relators A Jury Trial In Violation Of Their Right To A Jury Trial Pursuant To Civ. R. 38(B) This wrongful death Complaint was filed on September 29, On November 4, 2011, Relators filed their Answer and made a timely and proper jury demand pursuant to Civ. R. 38(B). Both the United States Constitution and the Ohio Constitution guarantee a civil litigant's right to a jury trial: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. Seventh Amendment of the United States Constitution. The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury. Section 5, Article 1 of the Ohio Constitution. The right to trial by jury protects the parties' right to have a jury determine all issues of fact in his or her case. Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 475, 880 N.E.2d 420, 2007-Ohio-6948 at 34. "Section 5, Article I of the Ohio Constitution clearly protects this factfinding function from outside interference. Any law that prevents the jury from completing 19

20 this task or allows another entity to substitute its own findings of fact is unconstitutional." (Emphasis added). Id., 35. Civ. R. 38(A) echoes the language of Article 1, Section 5 of the Ohio Constitution and states "The right to a trial by jury shall be preserved to the parties inviolate." Id. Additionally, Civ. R. 38(B) states: Any party may demand a trial by jury on any issue triable of right by a jury by serving upon the other parties a demand therefor at any time after the commencement of the action and not later than fourteen days after the service of the last pleading directed to such issue. Such demand shall be in writing and may be indorsed upon a pleading of the party. If the demand is indorsed upon a pleading the caption of the pleading shall state "jury demand endorsed hereon." * * * In all other civil actions the jury shall be composed of eight members unless the demand specifies a lesser number; and in the event of timely demand by more than one party in such actions the jury shall be composed of the greater number not to exceed eight. (Emphasis added). As noted above, Respondent timely and properly invoked their right to a jury trial pursuant to Civ. R. 3 8(B). Denying Relators the right to have a jury decide the outcome of the instant matter would run afoul of centuries of protecting this fundamental and essential right as noted by the Fifth District Court of Appeals in Lehman v. Smith, 5th Dist. No. 2000CA00034, 2000 WL (Oct. 23, 2000). Id. at * 3. [T]he right to a jury trial does not involve merely a question of procedure. The right to a jury trial derives from the Magna Charta. It is reasserted both in the Constitution of the United States and in the Constitution of the State of Ohio. For centuries it has been held that the right of a trial by jury is a fundamental constitutional right, a substantial right, and not a procedural privilege. In enforcing a null and void Magistrate Pretrial Order ex post facto, Respondent clearly lacked jurisdiction to deny Relators their Constitutional rights to a jury trial. 20

21 4. Respondent Lacked Subject Matter Jurisdiction To Deny Relators A Jury Trial In Violation Of Stark County's Loc. R In Walters v. Griffith, 38 Ohio St. 2d 132, 311 N.E.2d 14 (1974), this Court explicitly held that the failure to include the jury demand deposit within a certain time frame constitutes a waiver of a jury trial. However, this Court based its holding on the additional element that a local rule regarding a jury demand deposit must also provide that failure to pay the jury demand will result in a jury trial waiver. Significant to this case is that Stark County Loc. R contains no such waiver provision and, therefore, Respondent lacked jurisdiction to strike Relators' jury demand. This Court held in Walters, supra, that: Local court rules, requiring an advance deposit as security for the costs of a jury trial and providinly that the failure of a party to advance such deposit constitutes a waiver of the right to a trial by jury, are moderate and reasonable regulations of the right of a trial by jury, and are constitutional and valid. Id., at syllabus. (Emphasis added). Notably, the Sixth District Court of Appeals in Warrick v. Gaudynski, 6th Dist. No. L , 1987 WL (Oct. 16, 1987) analyzed Walters and found: Id. at *2. (Emphasis added). It is apparent from a review of both statutory and case law that in order for a trial court to consider failure to pay a deposit for a jury as waiver of the right to a jury trial, a local court rule must provide that failure to pay the deposit does in fact constitute a waiver of the right to trial by jury. There is no such rule in the Toledo Municipal Court rules. Local Rule 1 of the Toledo Municipal Court only sets the amount of deposit for requesting a jury. It does not provide that the right to a jury trial is waived if payment is not made. 21

22 Similar to the Toledo Municipal Court Rules, Stark County Loc. R only provides a schedule of fees, inclusive of the necessary deposit for a jury demand. Importantly, Loc. R does not include the requisite language as set forth in Warrick, i.e. that the right to a jury trial is waived if payment is not made; rather, Loc. R is silent on the issue of waiver. See Loc. R ; see also Warrick, supra. Additionally, Loc. R does not prescribe a due date for filing the jury demand deposit. Id. Accordingly, Stark County's Local Rules did not permit Respondent to deny Relators' right to a jury trial in this case. Because Relators have alleged all of the above with enough particularity to put Respondent on notice of the claims to maintain a prohibition action, Respondent's attempt to use a Civ. R. 12(B)(6) Motion to defeat Relators' Writ of Prohibition is without merit. Respondent's Civ. R. 12(B)(6) Motion is an improper vehicle in which to attack the merits of Relators' Prohibition action. As such, Respondent's Motion to Dismiss should be denied. B. Relators Writ Of Mandamus States Good Grounds For Relief In Mandamus Because They Have A Clear Right To A Jury Trial And Respondent Has A Clear Legal Duty To Provide Relators A Jury Trial To be entitled to a writ of mandamus, the relator has to establish (1) a clear legal right to the requested relief; (2) a clear legal duty on the part of the respondent to provide it; and (3) the lack of an adequate remedy in the ordinary course of law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452. Just like a writ of prohibition, there exists no adequate remedy at law where the respondent patently and unambiguously lacks jurisdiction to act. State ex rel. Ballard v. O'Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (1990). Respondent's Motion to Dismiss should be denied because Relators' Writ of Mandamus sufficiently alleges the first two requirements for such an action, i.e. (1) Relators have an 22

23 absolute Constitutional right to a jury trial; and (2) there is a corresponding clear legal duty on the part of Respondent to provide Relators with their Constitutional rights to a jury trial. As already established above, Relators have an absolute right to a jury trial as afforded them by both the United States and Ohio Constitutions. Additionally, Respondent, as a judge who presides over civil matters, has a corresponding legal duty to ensure that Relators are not denied their Constitutional rights to a jury trial. Just like their Writ of Prohibition, Relators' Writ of Mandamus sufficiently alleges the grounds for relief in Mandamus. Respondent's Motion To Dismiss does not adequately set forth any justifiable basis upon which Relators' Mandamus action should not proceed on its merits. C. Respondent's Motion To Dismiss Should Be Denied Because Relators Do Not Have An Adequate Remedy Of Law As previously mentioned, in cases of patent and unambiguous lack of jurisdiction, the requirement of a lack of an adequate remedy at law need not be proven because alternative remedies, like an appeal, would be immaterial or meaningless. State ex rel. State v. Lewis, 99 Ohio St.3d 97, 2003-Ohio-2476, 789 N.E.2d 195. In this case, it is patently and unambiguously clear that Respondent lacked jurisdiction to deny Relators a jury trial. Consequently, whether Relators are entitled to an adequate remedy at law is immaterial to both their Writs for Prohibition and Mandamus. However, if this Court is inclined to find that Respondent was not patently and/or unambiguously without jurisdiction to deny Relators a jury trial, Relators remain without an adequate remedy at law. There exists no adequate remedy of law that would eliminate the irreparable harm that would inevitably result if Relators are required to proceed with a non-jury trial in this medical negligence action. 23

24 If Relators are compelled to proceed to a non-jury trial, they will be before Respondent for a bench trial. Under the circumstances surrounding Respondent's denial of a jury trial, including Affidavits of Disqualification and this original action, Relators truly believe that they will not be able to have a fair and impartial bench trial before Respondent. The only way in which Relators' conduct should be judged is by a jury of their peers. Additionally, the time and expenses (i.e. attorney's fees, expert fees, court time, etc.) that will inevitably involve a trial, a direct appeal and potentially a second trial would be overwhelming. Trial of medical malpractice cases are extremely complicated, expensive and time consuming. To proceed now with a jury trial will undoubtedly avoid an appeal from a bench trial that would likely result in a new trial, a second trial and potentially a second appeal. Relators' Writs would assure that a fair jury trial be conducted in the appropriate manner in the first instance. Additionally, Relators will face the interruption of their practice involving multiple neurologists if required to proceed to trial as ordered by Respondent. Relators will also face exorbitant costs associated with an adverse judgment from Respondent and appellate costs thereafter, like an Appellate Bond. This jury trial issue warrants prompt and orderly disposition so that there is not a waste of judicial resources, costs, expenses, etc. This Court's consideration of Relators' Writs of Prohibition and Mandamus will avoid the unnecessary litigation costs that will inequitably be incurred with a bench trial, an appeal and potentially a second trial. More importantly, the irreparable harm to the judicial system and all litigants throughout Ohio is clear and convincing, i.e. the deprivation of Constitutional rights to ajury trial. In other words, this Court's consideration herein would be beneficial to the prompt and orderly disposition of justice. 24

25 Despite Respondent's argument to the contrary, Relators do not have an adequate remedy at law that would eliminate this irreparable harm that they would ultimately suffer if required to proceed with a non-jury, trial. IV. CONCLUSION It is well known that an individual's Constitutional right to a jury trial is paramount and held sacred. In denying Relators a jury trial in this medical malpractice case, Respondent has clearly exceeded his jurisdictional authority and has denied Relators their Constitutional rights to a jury trial. It is patently and unambiguously clear that in relying upon a null and void Magistrate Pretrial Order and, also, in ex postfacto denying Relators' their Constitutional rights to a jury trial, Respondent lacked judicial authority in this case. In their Writs of Prohibition and Mandamus, Relators have sufficiently alleged the grounds upon which they are entitled to relief. To the contrary, Respondent's Motion to Dismiss does not sufficiently challenge Relators' allegations and, thus, their Motion to Dismiss is without merit. 25

26 Accordingly, this Court should deny Respondent's Motion to Dismiss and this original action should proceed on its merits so that evidence and merit briefs can be submitted for this Court's consideration. Respectfully submitted, ^ ^G^^ OUGLAS G. LEAK ( 45554) ounsel of Record) dleak@ralaw.com Roetzel & Andress, LPA 1375 East Ninth Street; 9th Floor Cleveland, OH Tel ephone : Facsimile: 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 Telephone: Facsimile: shupp@bsmph.com jbecker@bsmph.com rmargolis@bsmph.com Attorneys for Realtors Morris Kinast, M.D. and Neurocare Center, Inc _I

27 PROOF OF SERVICE A copy of the foregoing was served on February 20, 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 Zirnmerman, Esq. Co-Counsel for Plaintiff 236 Third Street, SW Canton, OH h-7 f ou as G. Leak, Esq. ( 45554) Z^ Steven J. Hupp, Esq. ( ) Jennifer R. Becker, Esq. ( ) Ronald A. Margolis, Esq. ( ) D 1

28 FEB WED 01:13 PM Stark Co Pros Civil FAX NO P. 02 Feb. 5, t11Ah9 Stark County Comon Pleas Court ^Q ^^^^ p ^!'?'1T,^ IN THE APPOINTMENT OF MAGIS Pureuaztt to Ohzo Giwit Procec the Courk hereby appoixtts 'Gxetchen of Common P1ea,s, Canton, Ohio., obligations given to her by the Cc appointment is for an indefittite peri. ^4i H ix ^. ^ t=i^^^,. 1A^,^rC^U^;rv tt OF COMMON PtEAS e^jj^ COUNTY, OHIO ^".. "^ ^ ^' I1^TTSC. DOCKET NO. l ) } Jt1i)GE EORCHIaISTE ) } } ORDER l ) ure Ru1.e 53 aricl Ohio Criminal Proceduxe Rule 19, 3toer as a I.vtagistrate for the Stark Couztty CouxE Magistrate Storker will, perform the ctuties and E subject to!^iv. R. 53 and Crim. R. 19. This d of time until further order of the Gorxrt. TT f RANK G. F+^It UNE E jc)hng. 5 jutage LEB SINCLAIR ^ JtJDGE LE B. ER4M jr.:µ---- j[.ti^g T YN L, ^A'^kI