IN THE SUPREME COURT OF OHIO

Transcription

1 ^RIG^^^AL IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex ret JOHN H. DAVIS vs. Appellant, On Appeal for the Coui-t of Appeals Licking County, Ohio Fifth Appellate District TERRA VF'OOLARD MET'ZGEI2. Appellee. Court of Appeals Case No. 11-CA-0130 APPELLANT'S MEMORANDUM IN OPPOSITION APPELLEE'S MOTION TO STRIKE APPELLAtNT'S NOTICE OF APPEAL AND MOTION TO DISMISS APPELLANT'S APPEAL Wesley T. Fortune (Sup. Ct. No ) (COUNSEL OF RECORD) FORTUNE LAW LIMITED 421 Hill Road North Pickerington, Ohio Office: (614) Facsimile: (614) COUNSEL FOR APPELLANT, JOHN H. DAVIS Marc A. Fishel (Sup. Ct. No ) (COUNSEL OF RECORD) Anne E. McNah ( ) FISHEL HASS KIM ALBRECHT LLP 400 S. Fifth Street, Suite 200 Columbtis, Ohio Telephone - (614) Facsimile - (614) E-Maii: mfishel@fishelhass.com amcnab@fishe1hass.com COUNSEL FOR APPELLEE, TERRA WOOLARD METZGER ^{^^ "'^,.^rcs i'i r% F0

2 APPELLANT'S MEMORANDUM IN OPPOSITION APPELLEE'S MOTION TO STRIKE APPELLANT'S NOTICE OF APPEAL AND MOTION TO DISMISS APPELLANT'S APPEAL I. STATEMENT OF FACTS This matter came before the Court upon Appellee's Motion to Strike Appellant's Notice of Appeal and Motion to Dismiss Appellant's Appeal filed in Case Nos and on July 2, Appellant's are filing this memorandum in opposition to Appellee's motions. The basis for Appellee's motion to strike is that the Notice of Appeal in Case Nos ai1d were not served upon Appellee or Appellee's counsel pursuant to S. Ct. Prac. R. 3.11(D). Appellant contends that the notice of the appeal was served as certified in the May 31, 2013 Certificate of Service and as attested to by Stephen C. Oberhousen, Director of Operations for 521 Hill Road Limited, a professional services company. Attached hereto and made a part hereof as Exhibit 1, is the July 3, 2013 Affidavit of Stephen C. Oberhousen. Mr. Oberhousen, Appellant's counsel's agent responsible for delivery of the Notice(s) of Appeal, attests that he mailed the Notice(s) of Appeal in Ohio Supreme Court Case Nos and to Appellee's counsel on May 31, 2013 as Mr. Fortune and Mr. Fortune's legal assistant directed.(see July 3, 2013 Affidavit of Stephen C. Oberhousen, T5). Appellee's counsel acknowledges that this Court referred this case to mediation on June 7, 2013 and that he became aware of this appeal on June 10, nine (9) days after the timeframe to file an appeal in Case No had expired and one (1) day after the timefralne to file an appeal in Case No had expired.(appellee's Mot. to Strike, Pg. 4^,,2). On June 13, 2013, Appellee's counsel filed inotions to lift the mediation stay in both cases representing that "Appellant failed to serve Appellee or Appellee's counsel with the Notice of Appeal as required by S.Ct.Prac.R. 3.11(D)(1)."(See Exhibits 2 & 3). On July 2, 2013, the Court granted

3 Appellee's motion and returned this appeal to the regular docket and ordered Appellant to file his brief within 40 days of the date of the entry. On July 3, 2013, upon Appellant's counsel learning of the Court's Entry in this matter and Appellee's filing of the underlying motion to strike and motion to dismiss, Appellant's counsel requested that Mr. Oberhousen confirnn the May 31, 2013 service of the Notice(s) of Appeal and, additionally, requested service by hand delivery of the Notice(s) of Appeal to Appellee's counsel's office. Mr. Oberhousen's affidavit affirms the July 3, 2013 hand delivery of the Notice(s) of Appeal to Appellee's counsel.(oberhousen Aff & 7). If the Court does not find this matter moot given the affirmed May 31, 2013 and July 3, 2013, service of the Notice(s) of Appeal, the Court is left to decide, pursuant to S.Ct.Prac.R. 3.11(D)(1) and (2), if Appellee's "were adversely affected" by the alleged lack of service of the Notice(s) of Appeal and if the Appellee's actually failed to serve the Notice(s) of Appeal upon Appellee's counsel. Given the fact Appellee's failed to present any facts establishing that they "were adversely affected", Appellant believes the Court and counsel's time is better served addressing tl-te issues arising in the Appellant's appeal. Finally, Appellee's represent that "it is important to note that Appellant's counsel is facing sanctions for similar conduct in the underlying appeal"; when in fact, the sanctions hearing in the underlying matter actually involves a legal question regarding the reasonableness of Appellant counsel's filing of the original action in mandamus approximately three (3) days after the records custodian denied Appellant access to the requested public records. The hearing for fees presently pending in the underlying matter is in no way "similar conduct" as erroneously suggested by Appellee's. Therefore, Appellaiit's counsel will not waste the Court's time addressing the disingenuous representations of Appellee's.

4 II. LAW AND ANALYSIS S.Ct.Prac.R. 3.11(D)(l) requires that when "a party or amicus curiae fails to serve a party or parties to the case in accordance with S.Ct.Prac.R. 3.11(A), any party adversely affected may file a motion to strike the document that was not served."(enmphasis added). Appellee's assert that they were not served by Appellant's counsel with the Notice(s) of Appeal. However, Appellant's couiisel's Certificate of Service establishes that he did in fact serve Appellee's counsel with.the Notic.e(s) of Appeal. Additionally, the affidavit of Stephen C. Oberhousen further affirms that he, on behalf of Appellant's cou.nsel, did serve Appellee's counsel with the Notice(s) of Appeal.(Affidavit of Oberhousen, Pg. 2, "4-5). Fi7:ially, assuming arguendo that Appellee's were not served the Notice(s) of Appeal as set forth in Appellant's Certificate of Service, the Appellee's have failed to set forth any facts establis.hing that they were adversely affected. In the interest of justice and given the fact that the Appellant did serve the Appellee's with the Notice(s) of Appeal on both May 31, 2013 and July 3, 2013, the Court must deny Appellee's motion to str7ke and motion to dismiss. Under Civ.R. 11, the signature of an attorney constitutes "a certificate by the attorney or party that the attorney or party has read the document; that to the best of the attorney's or party's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay." Because Appellanthas served Appellee's on May 31, 2013, as attested to in the Certificate of Service and on July 3, 2013, as attested to in Mr. Oberhousen's affidavit, any assertion as to the Notice(s) being stricken as a sham and false are moot. For the aforeinentioned reasons, the Court must deny the Appellee's motion to strike the Notice(s) of Appeal. 4

5 Finally, as Appellee's point out, if the Court were to find that Appellee's were not served the Notice(s) of Appeal, it is within the Court's discretion, if in the interest of justice warrant, to choose not to strike Appellant's motion and instead order that the document be served and impose a new deadline for filing any responsive document. Because Appellee's were served by hand delivery on July 3; 2013 and the Appellee's have asserted no facts establishing they were adversely affected, the Court should deny the Appellee's motion to strike and motion to dismiss, and allow the appeal and hri_efing to proceed as ordered on July 2, IIL CONCLUSION Appellee's motion to strike and motion to dismiss must be denied because the Appellant's counsel's Certificate of Service and the Affidavit of Stephen C. Oberhousen conclusively establish that Appellee's were served with the Notice(s) of Appeal. Additionally, Appellee's have failed to establish any facts which would conclusively establish that the Appellee's were "adversely affected" by Appellant's alleged failure to provide service upon Appellee or Appellec's counsel. Given the Court's discretion, and in the interest of justice, Appellant requests that the Court deny the Appellee's motion to strike the Notice(s) of Appeal and motion to dismiss, and allow the appeal to proceed as presently scheduled per the Coux-t's July 2, 2013 Entry. Respectfully submitted, FORTUNE LAW LIMITED VVes1 ^r ^ e(sup. Ct. No ) (CO F RECORD) FORTUNE LAW LIIVIITED 421 Hill Road North Pickerington, Ohio Office: (614)

6 Facsimile: (614) COL'NTSEL FOR APPELLANT, JOHN H. DAVIS CER TIF7CA TE OF SER VICE I certify that a copy of this Memorandum in Opposition was sent by ordina.ry U.S. mail to counsel for appellce, Marc A. Fishel and Anne E. McLNab, Fishel Ilass IK-im Albrecht LLP, 400 S. Fifth Street, Suite 200, Coluinbus, Ohio on July 9, Wq v T' e CR APPELLANT, JOHNH. DAVIS 6

7 .(1F'rID11.VI'T OF STEPHEN C. O13ERHOUSEN OIi SUP. CT. CASE NO IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex ret JOHN H. DAVIS vs. Appellant, On Appeal for the Court of Appeals Licking County, Ohio Fifth. Appellate District TERRA WOOLARD METZGER AppeIlee. Court of Appeals Case No. 11-CA-0130 AFFIDAVIT OF STEPHEN C. OBERHOUSEN STATE OF OHIO SS COUNTY OF FAIRFIELD I, Stephen C. Oberhousen, of sound mind, legal age, and competence, hereby attest to the following facts involving the above captioned case for the purpose of making this affidavit, on this 3d day of July, I work for 521 Hill Road Limited, a prolf:ssional services support company, (hereinafter "521") 2. On May 30, 2013, Attorney Wesley T. Fortune of Fortune Law Limited retained 521 to provide temporary support services for his office for an indefinite period of time. 3. On May 31, 2013, 521 began providing Attorney Fortune and Fortune Law Limited support services for his office to include answering the phone, processing mail, among other things. 4. On May 31, 2013, Mr. Fortune provided me with numerous legal documents for e- mailing, faxing, electronic filing, mailing, among other things in various cases. I -Jo --

8 AFFIDAVIT OF S'LEPHEN C. OBERHOUSEN OH SUP. CT. CASE NO Working in conjunction with Mr. Fortune's legal assistant, to the best of my ability and recollection, all documents provided to me on May 31, 2013, to include the Notice(s) of Appeal in Ohio Stlpreme Court Case Nos and , were ed, faxed, electronically filed, filed, mailed, or served upon the individuals listed in the Certificates of Service and as directed by the written instructions of Mr. Fortune and Mr. Fortune's legal assistant. 6. Between May 31, 2013 and June 21, 2013, Mr. Fortune contacted me on two occasions requesting that I provide certain legal documents to co-counsel and/or opposing counsel in certain cases; I completed those requests. 7. Oil July 3, 2013, at Mr. Fortune's request, 521 hand delivered the Notice(s) of Appeal in Ohio Supreme Court Case Nos, and to the offices of Fishel Hass Kim Albrecht LLP, 400 S. Fifth Street, Suite 200, Columbus, Ohio have personal knowledge of the facts set forth in this affidavit. FURTHER AFFIANT SAYE`I'H NOT. Subscribed and sworn to this 3d day of July, 2013 Stephen C. Oberhousen,,;1ṟ S': SYT FORTUNE. ^ 1 3',^ a ^,`` A ri,to Fi (k E` AT LAW T./Fortune My Commi s"71on is For Life ^:;-^.^ ; ^^atarsr Public ; ; 3` ^ a?ate of Ohio _.... _'^ - -m. s: +cr! ^ias nc explratian date

9 ^^^ FISHEL ^ASS Kr^i.AI.BRECHT LLP'^` I^1^ Attot'neys at Law 400 South Eifth Street Suite 200 Coltimhnis, Ohio (614) rx (614) sx June 13, 2013 Office of the Clerk Supreme Court of Ohio 65 South Front Street, $v' Floor Columbus, Ohio Re: State of hio, ex rel. John Davis v, Terra Woolard Metzger Supreme Court Case No $1 Dear Clerk: Enclosed are one (1) original and eleven (11) copies of Appellee's Motion to Lift Mediation Stay for filing in the above-captioned matter. Please return one time-stamped copy in the enclosed self-addressed stamped envelope. If you have any questions concerning this matter, please feel free to contact me. Sincerely, MAF/hrm Enclosure \/ 4 Marc A. Fishel CC: Wesley Fortune West Licking Fire Distlivlandamus - 11CA-0l30tS. Ct. Appeal%-13C)crkL] EXHIBIT Z

10 MTje 6upretrre Court of Obio STATE OF OHIO, ex rel. JOHN H. DAVIS Case No Appellant,. On Appeal for the Court of Appeals Licking County, Ohio V.. Fifth Appellate District TERRA WOOLARD METZGER Appellee. Court of Appeals Case No. 11-CA APPELLEE'S MOTION TO LIFT MEDIATION STAY WESLEY T. FORTUNE ( ) FORTUNE LAW LIMITED 421 Hill Road North. Pickerington, Ohio Telephone: (614) Facsilnile: (614) wfortunel7a wtflegal.com Counsel for Appellant John H. Davis MARC A. FISHEL ( ) ANNE E. MCNAB ( ) FISHEL HASS KIM ALBRECHT LLP 400 S. Fifth St., Suite 200 Columbus, Ohio Telephone: (614) Facsimile: (614) nifishel(^a,fishelhass.com amcnabna,fishelhass.conl Counselfor Appellee Terra Woolard Metzger FH; ISHEL HASS KA KIM A1e.BREGHT t z t> Actorneys at Law 400 South Fifth Street (614) PH Suite 200 (614) FX Columbus, Ohio

11 APPELLEE'S MOTION TO LIFT MEDIATION STAY Now comes Appellee, Terra Woolard Metzger, by and through counsel, and respectfully moves the Supreme Court of Ohio to lift the mediation stay pursuant to S.Ct.Prac.R (A)(3)(a). Appellant failed to serve Appellee or Appellee's counsel with the Notice of Appeal as required by S.Ct.Prac.R (D)(1), and consequently, Appellee was not made aware of the Notice of Appeal until Appellee's counsel received this Court's Entry on June 10, Appellee does not believe that this case is properly before the Court, and respectfully moves the Court to lift the mediation stay so that this issue can be addressed and resolved. ectfially. submitted, r, - ;^^AA E FI EL ( ) MCNAB ( ) FISHEL HASS KIM ALBRECHT LLP 400 S. Fifth St., Suite 200 Columbus, Ohio Telephone: (614) Facsimile: (614) Anfishel fi'shelhass.com amcnab(a7fishelhass, coim Counselfor Appellee Terra Woolard Ikfietzger CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing APPELLEE'S MOTION TO LIFT MEDIATION STAY was served upon Wesley Fortune, Fortune & Associates, LLC, 421 HHil1 Road North, Pickeringto Regular U.S. Mail this 13`' day of 3une, Fishel ( ) FISHEL HASS KIlYI ALBRECHT LLP Counselfor Appellee Terra Woolard Metzger West Licking Fire Dist\ivlandamus - I ica-0130\6,12.13 Motion to Lift Stay.dosx FISHEL HASS KIZvt ALBRECHT ta.r- Atto.tneys at Law 400 South Fifth Street (614) PH Suite 200 (614) FX Columbus, Ollio

12 FFISHEL HASS I^IM ALBRECHT LI^T^ Attorneys at Law 400 South Fifth Street Suite 200 Columbus, Ohio (614) rh (614) Fx June 13, 2013 Office of the Clerk Supreme Court of Ohio 65 South Front Street, S`}' Floor Colun-ibus, Ohio Re: State of Ohio, ex rel. John Davis v. TerraWoolartl Metzger et al Supreme Court Case No Dear Clerk:. Enclosed are one (1) original. and eleven (11) copies of Appellees' Motion to Lift Mediation Stay for filing in the above-captioned matter. Please return one time-stamped copy in the enclosed self-addressed stamped envelope. If you have any questions concerning this matter, please feel free to contact me. Sincerely, MAF/hrm Enclosure CC: Wesley Fortune arc A. Fis 2 4J West Licking Fire DisflMandameis 2-12-CA-00361S. Ct. Appeall6-13CierkL4 EXHIBIT 3

13 t The ^bupreme Court of ci9bio STATE OF OHIO, ex rel, JOHN H. DAVIS Case No 'v. Appellant, On Appeal for the Court of Appeals Licking County, Ohio Fifth Appellate District TERRA WOOLARD ME1'ZCiER, et al. Appellees. Court of Appeals Case No. 12-CA-0036 APPELLEES' MOTION TO LIFT MEDIATION STAY WESLEY T. FORTUNE ( ) FORTUNE LAW LIMITED 421 Hill Road North Pickerington, Ohio Telephone: (614) Facsimile: (614) wfortunena.wtfle gal.com Counsel for Appellant John H. Davis MARC A. FISHEL ( ) ANNE E. MCNAB ( ) FISHEL HASS KIM ALBRECHT LLP 400 S. Fifth St., Suite 200 Columbus, Ohio Telephone: (614) Facsiinile: (614) amcnab Lishelhass.com Co unselfor.appe ll e es Terra Woolard Metzger and Elizabeth Krugh VFISx.EL HASS KIM ALBRECI^T ia.r^ Attotncys at Law 400 South Fifth Street (614) PI-1 Suite 200 (614) FX Columbus, Ohio w,ww.fishelhass.com

14 :a APPELLEES' APPLICATION TO DISMISS APPELLANT'S NOTICE OF APPEAL Now come Appellees, Terra Woolard Metzger and Elizabeth Krugh, by and through counsel, and respectfully moves the Supreme Court of Ohio to lift the mediation stay pursuant to S.Ct.Prac.R. 19,01(A)(3)(a). Appellant failed to serve Appellees or Appellees' counsel with the Notice of Appeal as required.by S:Ct.Prac.R. 3:11(D)(1), and consequently, Appellees were not niade, aware of the Notice of Appeal until Appellees' counsel received this Court's Entry on June 10, Appellees do not believe that this case is properly before the Court, and respectfully move the Court to lift the mediation stay so that this issue can be addressed and resolved. etfully submitted, CA. FISH,L ( ) ANNE E. MCNAB ( ) FISHEL HASS KIM ALBRECHT LLP 400 S. Fifth St., Suite 200 Columbus, Ohio Telephone: (614) Facsimile: (614) amcnabna fishelhass.corn Counsel,for Appellees Terra Woolard Metzger and Elizabeth Krugh CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing APPELLEES' MOTION TO LIFT MEDIATION STAY was served upon Wesley Fortune, Fortune & Associates, LLC, 421 Hill Road North, Pickerington, Ohio via Regular U.S. Mail this 13th day of June West Licking Fire DistUvlandarnus 2-12-CA-0036\S. Ct. Appeat\ Motion to Lift Stay.docx Marc A. Fishe ( ) FISHEL HASS KIM ALBRECHT LLP Counsel far Appellees Terra Woolard Metzger and Elizabeth Krugh FH^ FISHEL HASS KA` K:IM ALBREC;HT t,rnm A.ttorneps at Law 400 South Fifth Stceet (614) PH Suite 200 (614) FX Columbus, Ohio www, fish elhass. com