D)' FE6: 17 I0,09 c^^^ae<q^^cow^^ S0lPRENfE GO.ll(tr QF, GERG. Case No: Appellee, IN THE SUPREME COURT OF OHIO. James M.

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1 IN THE SUPREME COURT OF OHIO James M. DeAscentis, Case No: V. Appellee, (On Appeal from Franklin County Court of Appeals, Tenth Appellate District, Case No. 08AP-522) Vincent J. Margello, et al., Appellants. MEMORANDUM IN OPPOSITION TO JURISDiCTION OF APPELLEE JAMES M. DEASCENTIS Thomas E. Boyle, Esq. ( ) Mark C. Mellco, Esq. ( ) WILES BOYLE BURILEiOLDER & BRINC.ARDNER 300 Spruce St., Floor One Coluinbus; OH Telephone: Telefax: tbovle a wileslaw.coni Counsel for Appellants Vincent J. Margello and Community Builders, Inc. James P. Connors, Esq. ( ) LAW OFFICES OF JAMES P. CONNORS 326 South High Street, Suite 400 Columbus, OH Telephone: Telefax: iclaw221(^aaol.com Counsel for Appellee James M. DeAscentis D)' FE6: 17 I0,09 c^^^ae<q^^cow^^ S0lPRENfE GO.ll(tr QF, GERG

2 WHY THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST S. Ct. R. III(Sec. 1)(B)(2) requires a "thorough explanation of... why the case is of public or great general interest" in order to justify discretionary jluisdiction. Here, the appellants provide no insight regarding how or why this case might have interest to anyone other than the litigants. There are several other reasons why this case has no public or general interest. "`This court will grant a motion to certify only if there is a substantial constitutional question or if the case is ofpublic or great general interest. * * * Novel questions of law or procedure appeal not only to the legal profession but also to this court's collective interest in jurispt-udence." (Emphasis added.) Noble v. Colwell (1989), 44 Ohio St.3d 92, 94, 540 N.E.2d This case does not involve a`novel' question of law or procedure or present an issue that is pertinent to the court's `collective interest in jurisprudence.' The majority is merely secondguessing the appellate court's decision to deny a motion for new trial. By iule and by necessity, that is not the role of this court." Manigault v. Ford Motor Co. (2002), 96 Ohio St.3d 431, 2002-Ohio-5057, at The appellants here seek only to "second guess," for a third time, the court of appeals' rejection of a summaty juddnent in two successive appeals of the satne issue. As tlus courthas held, though, this is not its role to serve as yet another forum to second guess the appeals court. This case presents no novel questions of law or proceditre. In fact, the appellants have literally had years to determine the claims and the appeals court has ruled that these issues inust be resolved by a fact finder. Appellants challenge only what they perceive as a continuing unfavorable result, not the procedure or law utilized in reaching these decisions. This case is not close to generating any interest, at least that which is sufficient to warrant review in this court. 1

3 Appellants seek additional review of a question which has been previously reviewed for its inherently factual nature. 'I'he court of appeals has now spent many pages encompassing two different decisions on the same issues over the course of several years. The purported issue has been adequately resolved twice in the court of appeals. Margello undermines his appellate argument, yet persists in seeking additional review. The appellants seek to appeal, literally for a third time, the issue of whether the statute of frauds evenapplies and, if so, whether it bars a claim concerning distribution of profits fi om real estate development projects. As the court of appeals has now twice ruled on two different occasions, these issues simply are not able to be resolvedon summary judgment given the disparate evidence which compels resolution of the entire case by a jury as fact finder. "[O]ur role as a court of last resort is not to serve as an additional court of appeals on review, but rather to clarify rules of law arising in courts of appeals that are matters of public or great general interest. See Section 2(B)(2)(e), Aiticle IV of the Ohio Constitution (providing that the Supreme Court may direct a court of appeals to certify its record "[i]n cases of public or great general interest"). State v. Bartrum, Slip Opinion No Ohio-355, at 31. This court has historically denied certiorari in cases which lack any public or general interest since they fail to meet the criteria for a discretionary appeal. Simply seeking yet another review of the same issue is not satisfactory. "A halhnark of judicial restraint is to rule only on those cases that present an actual controversy. To do otherwise-to simply answer a hypothetical question merely for the sake of answering it-would make this court nothing more than an advisory board. Thus, hecause we do not provide advisory opinions, Cascioii v. Cent. Mut. Ins. Co. (1983), 4 Ohio St.3d 179, 183, 4 OBR 457, 448 N.E.2d 126, the dismissal of this 2

4 case is proper because there is no evidence of a building-code violation." Ahmarl v. AKSteel Corp., 119 Ohio St.3d 1210, 2008-Ohio-4082, at 3. This appeal presents nothing more than a gardei-variety fact dispute about profit distribution between two first cousins who were once partners in a real estate development partnership. These issues contain neither substantial constitutional import nor public or great general interest. Since this case fails to meet the threshold test for a discretionary appeal, certiorari should be denied. A. The Appellants' Proposition of Law Is Not Factually Or Legally Correct Because The Statute Of Frauds Does Not Apply To This Case. The appellants suggest by way of their proposition of law that the statute of frauds applies to bar a breach of contract claim, and that this position is supported by the testimony of James DeAscentis. Neither assertion is correct, nor supported by either the evidence or the law. At its core, this is a simple fact-specific dispute between two pat-tners conceming the distribution of profits from real estate development projects. As noted by the court of appeals, even appellant Margello's testimony directly contradicts his argument on appeal that the statute of frauds applies to the facts of this case. The appellants refer to Gunsorek v. Heartland Bank (1997), 124 Ohio App. 3d 735 as if to support their request for certiorari. Gunsoreh applies, but for different reasons than those suggested by the appellants. Gunsorek held that oral agreements, like that at issue between Jim DeAscentis and Vince Margello, to share "in profits or commissions earned from the sale of real property or for the future purchase and development of real property not already owned by one of the partners," do not fall within the statute of frauds. Gunsorelc, 124 Ohio App. 3d at

5 Other courts have routinely and uniformly followed this law while holding that the statute of frauds is not implicated under these circumstances. See, e.g., Barrett v. Poad & McEwen Lifestyle Centers, et al, 1999 U.S. Dist. LEXIS 13594, *11 (N.D. Ill. 1999)(In Illinois, as in New York, see Bac7cus, 317 F.2d at 342; Ohio, see Gunsorek, 124 Ohio App. 3d 735, 1997 Ohio App. LEXIS 6015, at *21, 707 N.E.2d 557; and Arizona, see Johnson, 621 P.2d at 919, joint ventures and partnerships formed for the development of real estate are generally exempt from the Statute of Frauds). In Regan v. Paxton et at (Feb. 1, 2002), 2002 Ohio 383; 2002 Ohio App. LEXIS 345, at * 15-16, the court of appeals held: "[I]t is clear that the distinguishing feature of those cases which apply the statute of frauds to the oral agreement at issue is the transfer or promise to transfer real property, already owned, from one partner to another or from one partner to the partnership. Gunsorek v. IZeartland Banlr (1997), 124 Ohio App. 3d 735, , 707 N.E.2d 557. In the present case, appellants never alleged that Paxton and Chamey promised to transfer property to the partnership. Rather, the breach of contract claim hinges on the allegation that Paxton and Chamey were to purchase the property on behalf of the partnership and failed to do so." In this case, James DeAscentis has not alleged that Margello was supposed to transfer any real estate which he owned to DeAscentis or their partnership. Plain and simple, the statute of fi-auds does not apply to the facts presented in this case. The issue presented by the appellants is also hard to discern in part because the appellants do not accurately characterize either the dispute, the evidence, or the proceedings below. The appellants suggest that James DeAscentis' testimony provides a basis for their argi.nnent that the 4

6 statute of frauds should be applied to deny his claim. However, Mr. DeAscentis did not testify as the appellants suggest. There was no testimony that the agreement contemplated the conveyance of real property from either partner to the other. James DeAscentis testified that the agreement included splitting the profits which included units remaining from the development project: Q. So you understood Vince to be telling you during this conversation in early 1992 that when you finished Sharon Woods Senior Village 2 you would divide up the profits from both Sharon Woods Senior Village 1 and Sharon Woods Senior Village 2, whatever those profits might be, and in addition, the two of you would divide up 20 units, ten each from the two phases. You would get five from phase 1, five from phase 2, and he would get fivc from phase 1 and five from phase 2. Is that what you're telling me? A. Right. DeAscentis v. Margello, 2008-Ohio-6821, at 24. As noted above, appellant Margello testified that the agreement was one for employment and that it only contemplated monetary compensation, not real property: Q. When [DeAscentis] came to you and asked you for a job, you said, yes, I will employ you; correct? A. Correct. Q. And then you had a discussion with him about a monetaiy amount of money that he would receive for per-fonning this job; coirect? A. Yes. Q. And you decided on a figure; correct? A. Coirect. Id. It was only later when they agreed on a value that the condominiums "carne into play" according to Margello, but even then it was simply a reflection of the monetary value agreed by 5

7 them. Margello testified: A. Everything was always discussed in monetary, but then there was a value set on the condominiums and the condominiums came into play. And I can't remember exactly how, but they were received as compensation for the monetary value that was agreed upon. Id. The court of appeals concluded that the issue of whether the statute of frauds even applies to the agreement at issue remains to be determined by a fact finder. Id. at 25 ("This type of agreement may or may not be one regarding an interest in or conceming lands depending upon what the trier of fact determines to be the essential parts of the agreement."). The court of appeals further noted that, even if the statute of frauds applied to the agreeinent at issue, James DeAscentis presented evidence that he had performed in reliance on the agreement, thus preventing the appellants' ability to raise the defense. Id. at 27 ("In that situation, full performance of DeAscentis' obligations under the contract bars the raising of a statute of frauds defense."). The court of appeals noted yet another reason that the statute of frauds may not be raised, that being whether it was possible to complete the project within a year. "The trial cotvt also fomid that the agreements were not capable of performance within one year, but only said `[i]n this case, by the very nature of the agreement, per-fomiance within one year was not possible.' (Oct. 20, 2003 'frial Court Decision, at 7.) We disagree." Id. at 28. "Here, as discussed above, genuine issues ofmaterial fact exist such as when payment was to be made or when the projects were completed. As such, we cannot determine what in `the very nature' of the agreeinents malces perfonnance within one year impossible. *"* The second assignment of error is 6

8 sustained." Id. at 30. In short, there is nothing presented which remotely suggests that an issue of public or great general interest has been presented, let alone argued, in this request for a discretionary appeal. Certiorari should be denied. CONCLUSION This court should deny the request for jurisdiction. There is no public or general interest associated with review of whether, in a summaryjudgment proceeding, the statute of fi-auds is implicated when on the face of the record, including appellant Margello's admission, it is not. Rather, the evidence and findings below show that the court of appeals properly followed and applied Ohio law. Accordingly, jurisdiction does not lie in this case and the request for certiorari should be denied. - R^,^pectfully sub^itted, James P. Connors, Esq. ( ) LAW OFFICES OP JAMES P. CONNORS 326 South High Street, Suite 400 Columbus, Ohio (614) FAX (614) Counselfor Appellee James M. DeAscentis CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was forwarded by United' States mail, to counsel for appellants, on this 17`h day of February, Counsel for Appellee James M. DeAscentis 7