IN THE SUPREME COURT OF OHIO

Transcription

1 ORIGINAL IN THE SUPREME COURT OF OHIO KATHERINE WOLK, et al. Plaintiff-Appellants, vs. FRANKIE PAINO, et al. Defendant-Appellees. Supreme Court Case No.: On Appeal from the Eight District Court of Appeals, Cuyahoga County. Court of Appeals Case No.: CV APPELLEES BEVERLY LACY AND REALTY ONE INC.'S COLLECTIVE MEMORANDUM IN RESPONSE TO APPELLANTS' MEMORANDUM IN SUPPORT OF JURISDICTION Frances F. Allington ( ) (Counsel of Record) Lorain Road Fairview Park OH Telephone: (440) Facsimile: (440) Francesallingtongsbcglobal.net COUNSEL FOR APPELLEE BEVERLY LACY Karl H. Schneider ( ) Trina N. Goethals ( ) (Counsel of Record) Maguire & Schneider, LLP 250 Civic Center Dr., Suite 500 Columbus, OH Telephone: (614) Facsimile: (614) khschneiderkms-lawfirm.com tgoethalskms-lawfirm.com COUNSEL FOR APPELLEE REALTY ONE MAY 24 2Q11 CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS STATEMENT OF THE CASE AND PROCEDURAL POSTURE...:... 4 STATEMENT OF THE FACTS... 4 PROCEDURAL POSTURE... 5 EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT INTEREST... 6 ARGUMENT IN RESPONSE TO PROPOSITION OF LAW... 7 CONCLUSION...: CERTIFICATE OF SERVICE...:

3 TABLE OF AUTHORITIES CASES: Cleveland Clinic Found v. Comm. Group Ben., Inc., (March. 28, 2002), 2002 Ohio 1414, Hadden Co., L.P.A. v. Del Spina (2003), 2003 Ohio John Bedwell v. John Schmitt, (2002), 2002 Ohio : Kwait v. John Davis Management Co., (1974,) 42 Ohio App.2d Pref. Cap., Inc. v. Power Eng. Group, Inc. (2007), 112 Ohio St. 3d 429, 433, 860 N.E.2d Nunez v. J.L. Sims Co. (2003), 2003 Ohio , 9 State ex rel. Leslie v. Ohio House Fin. Agency (Dec. 9, 2003), 2003 Ohio 6560, State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d , 14 Vales v. Akron Metro. Hous. Auth., (2009) 2009 Ohio 6954, , 14 STATUTES, RULES AND CONSTITUTIONAL PROVISIONS: Loc.R. 11(D) of the Court of Common Pleas of Cuyahoga County, General Division Evidence Rule Ohio Revised Code : Ohio Revised Code Ohio Rules of Civil Procedure 8...: Ohio Rules of Civil Procedure 33...: Ohio Rules of Civil Procedure 56(C) Ohio Rules of Civil Procedure 56(F)...:

4 I. STATEMENT OF THE CASE AND PROCEDURAL POSTURE A. STATEMENT OF FACTS Appellants' claims stem from a real estate transaction in which Frankie Paino and Geralyn Paino (collectively the "Painos") sold Appellant, Katherine Wolk ("Wolk") a piece of real property located at 9007 Westlawn, Olmsted Falls, Ohio (the "Subject Property"). Appellee, Beverly Lacy ("Lacy") was the real estate agent who represented Wolk, the buyer in this transaction. Therefore, the principal-agent relationship at issue encompasses only the relationship between Wolk and Lacy, and Lacy's broker. Lacy's real estate license was held by broker Realty One, Inc. ("Realty One") at the time of this transaction, making Realty One the buyer's broker. (Realty One has since sold all of its assets to brokerage Howard Hanna. Realty One is no longer in operation and as such Lacy's real estate license is now held by Howard Hanna.) Lacy and Realty One are the party/appellees for which the Appellants are now attempting to seek review in this Court. Wolk is the lone Appellant with reaming claims. The crux of Wolk's claim against these Appellees is the assertion that Lacy and/or Realty One breached a fiduciary duty and/or a duty stated in the agency contract that was owed to Wolk. Appellants' breach claim stems from the sole assertion that Lacy and Realty One should have made a home inspection mandatory. (See, of Appellants' Compl.). Appellees defended against this claim by relying on the undisputed facts that Wolk admits she knew a home inspection was available to her, yet she knowingly and voluntarily waived the same. (See, Line 123 of the Purchase Contract). Therefore, because Wolk, as the principal, knowingly and voluntarily waived her right to an inspection, her agent, Lacy continued the transaction. The reasoning behind Wolk's decision to so waive is not relevant to this case, as it is her option; however, the record here shows it was because of family pressure in obtaining the house as soon as possible and the undisputed fact that family friends and friends-of-friends who were 4

5 professional contractors had independently viewed the property on several occasions. (Wolk Dep. 35:18-25; 36:1-4, March 17, 2008; see also, Besch Dep , Feb. 25, 2008). Wolk never lived in the house as it was purchased for family members via their trust funds; however, shortly after purchase, remodeling began and after demolition a substance that was thought to be mold was noticed. A$er the discovery, Appellants filed a complaint against the sellers and later added these Appellees, claiming it was a breach of duty to allow Wolk to forego an inspection before purchasing the Subject Property. The facts are undisputed that Wolk had knowledge of her right to an inspection; she admitted the same in her brief in opposition of plaintiffs' (respective) motions for summary judgment (See, Pls. Resp. Br. pg. 6, Sept. 8, 2010). Transaction documentation signed by K. Wolk acknowledges the same. No question of fact exists. Additionally, if there was mold there are no guarantees that it would have been discovered by any home inspector as the Appellants discovered the substance only after "demolition." (Besch Dep. 106:14-25). The Cuyahoga Court of Common Pleas ("Common Pleas") and Eighth Appellate District agreed, holding that various documents acknowledged a possibility of mold and the option of selecting a home inspection, but that Wolk waived this option. (See, Common Pleas Court Entry Feb. 12, 2010, pg. 10; see also, Eighth App. Dist. Entry, pg. 18). B. PROCEDURAL POSTURE Plaintiff-Appellants, Wolk, Katherine Wolk and Todd Besch, Trustees for The Amie M. Campbell Living Trust ("Trustees"), and The Amie M. Campbell Living Trust ("Trust") (collectively the "Appellants") first filed claims against co-defendants Painos on March 15, Appellants later amended their Complaint, which they then dismissed, only to refile and add Realty One and Lacy on November 12, The Painos filed for Summary Judgment on or about November 19, 2008, which was granted by the trial court on all counts. On May 18, 2010, the Eighth Appellate District affirmed that decision in whole. Appellants then appealed the trial court's decision granting Lacy and Realty 5

6 One's respective motions for summary judgment (as well as ancillary discovery issues). The claim Appellants brought against Lacy and Realty One was breach of fiduciary duty/breach of agency contract. A civil conspiracy claim was also plead, but deemed moot when the Paino were dismissed on summary judgment. II. EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT INTEREST Appellants make two contentions of why this case is of public concern or great interest. The first is in regard to the standards of a real estate agent and its broker. The second is in regard to the Common Pleas Court's rulings on discovery issues. Neither of these issues warrant review by this Court. To hold that Lacy should have bound Wolk to a home inspection would create law, making what is now an option, mandatory.' Wolk was not an "inexperienced, elderly" person as portrayed in Appellants' Memorandum. She was a fiull-time, government employee, a trustee for the family trust, and, according to the secretary of state, vice-president and agent of a multi-million dollar private foundation. Knowledgeable in that she could deliberately and voluntarily decide what options she wanted, and what options she did not want with regard to the transaction at issue. Wolk was not mistreated by her real estate agent. Wolk was provided with the information she needed to make her own decisions, allowing her to purchase the Subject Property. The documents with which Lacy provided Wolk and discussed with Wolk satisfied any duty Lacy and Realty One had toward Wolk. 1 Appellants also mention that Wolk did not have enough time to read the contract. This is inaccurate as the facts show she signed and initialed the contract on two different days, therefore, giving her at least a 24-hour period with the contract. (See, Assn. of Law "C"; see also, Eighth App. Dist. Entry, pg ). The contract issue, as with any issues regarding a Residential Property Disclosure Form ("RPDF"), was not argued in the parties motions for summary judgment because these facts were not set forth in the Complaint and Appellees had no notice of the same. Therefore, the trial court and appeal court held that Appellants had not preserved the same as viable claims. (See, Eighth App. Dist. Entry, pg ; see also, Besch Dep regarding extensive questioning over the RPDF).

7 Additionally, the trial court was well within its discretion to either not allow or strike Appellants' exhibits as they were untimely, unauthenticated, or did not follow local rules. The depositions and reports that Appellants cite to in the Memorandum to this Court were stricken from the record because Appellants either failed to authenticate, they were filed out of rule, or they were considered by the trial court, but deemed irrelevant as they discussed matters not present in the litigation. Due to Appellants' failure to follow proper procedure, it was in the trial court's discretion to strike the Appellants' supplements. The admission or exclusion of evidence rests in the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343. Similarly, an appellate court's review of a trial court's interpretation or application of its local rules is an abuse of discretion standard. Vales v. Akron Metro. Hous. Auth. (2009), 2009 Ohio 6954, 3, Summit App. No. C.A. No III. ARGUMENT IN RESPONSE TO PROPOSITIONS OF LAW Appellants makes three (3) separate propositions, none of which show why this is a case of public or great general interest. Ohio courts have held that it is not a breach of fiduciary duty for an agent to abide by her principal's option to waive a home inspection. Nunez v. JL. Sims Co. (2003), 2003 Ohio 3386, Hamilton App. No. C Currently in Ohio, the profession of home inspectors is not regulated or licensed.z To mandate that Ohio citizens hire someone who the state does not watch over would be a disservice to Ohio consumers. Additionally, many purchasers of foreclosed homes or homes at a sheriffs sale do not have the option of an inspection and properties are purchased "as is." R.C This Court will find nothing new or compelling in Appellants' 2 S.B. 14 was introduced in 2009 in an attempt to amend sections of the Revised Code and to enact sections of the Revised Code to require the licensure of home inspectors; the same remains in committee. 7

8 request for review. The lower courts have each entered extensive and detailed opinions in this case, finding that the facts are undisputed and the law clear. A. PROPOSITION OF LAW I: BREACH OF FIDUCIARY DUTY AND BREACH OF CONTRACT WERE PROPERLY DECIDED BY DISPOSITIVE MOTION Proposition of Law I asks this Court to let the claim be decided by a jury as Appellants reargue the claim that Lacy and/or Realty One should have made a home inspection mandatory, despite no such law requiring the same. The title of Appellants' Proposition, states that "the court should defer to a jury to review the evidence..." However, Appellants' argument to follow does not argue that the courts should defer to a jury, but attempts to muddle the brief with jumping deposition testimony that is taken out of context, without identifying the speaker or questioner. Appellants also attempt to bring in testimony that is not currently in evidence or that was stricken from the Common Pleas Court's record for late filings or due to a failure to authenticate. The issue of this case is whether or not Lacy or Realty One breached a fiduciary duty to Wolk as plead in the Complaint. Paragraphs of the Complaint addresses "breach of fiduciary duty." In her Memorandum to this Court, Appellant goes back-and-forth between different ways she claims a duty was breached, many being introduced for the first time to this Court. Appellees must receive notice from the Complaint, and what the Complaint, alleges is: A "waive(r) of inspections for the Wolk Agreement to have the house inspected," (Complaint 56); "Having contracts prepared without waiver of inspections..." Id. at 57; "Failure to include inspections," Id. at 58; and, In summary, paragraph 59, in whole states: "Such failure by Lacy to fulfill her duties and protect the interests of Wolk and Campbell was a breach of her duty and breach of contract, intentionally or negligently, that resulted in damages to Wolks, by not having inspections completed to fully review the conditions of the house that would have resulted in discovering mold and other conditions that were defects in the property." (Emphasis added.) 8

9 In order to have a breach of a duty Appellants need to state what set of facts led to the alleged breach, not just a mere accusation that Lacy did not fulfill her duties. This has been affirmed by the Common Pleas Court and the Eighth Appellate District in this case. Citing Civ.R. 8, the Eighth Appellate District affirmed the Common Pleas Court stating "We find that Appellants are limited to the allegations of their Complaint... Therefore, in our review of the trial court's summary judgment determination, we will only consider the issue of whether Lacy breached her fiduciary duty by allowing appellants to waive inspection rights." (See, Eighth App. Dist. Entry, pg ). In showing that defendant real estate agents/brokers are entitled to judgment as a matter of law in a breach of fiduciary duty claim, when similarly situated facts are at issue, the court in Nunez, has held that the plaintiffs "saw no need for a professional home inspection prior to purchasing the residence, he realized that anything an inspector would do, he could do himself. (Plaintiff) did not intend to pay for any inspection on the residence being shown (by the Agent) and waived his opportunity to have an inspection done." Nunez v. J.L. Sims Co., 2003 Ohio 3386 at 11. The appellate court upheld the trial court's granting of summary judgment against the agent/broker defendants on the breach of fiduciary duty claim stating that the plaintiffs were in possession of documents stating their rights. Id. at 13. Here too, Wolk knowingly waived her inspection. The facts are undisputed that Wolk had knowledge of her right to an inspection, as she admits the same in her Response Brief and her Brief to the Eight Appellate District. (See, pg. 6 of PIs. Appellant Resp. Br.). Additionally, the option and advice to have such an inspection was on several of the transaction documents, including, but not limited to the purchase contract, which Wolk affirmatively initialed. The purchase agreement expressly states in lines 111 through 120: "If buyer does not elect inspections, BUYER acknowledges that BUYER is acting against the advice of BUYER'S agent and broker." (Emphasis sic.) 9

10 Wolk's initials are then found on line 123 waiving the same. Indeed, a document should be read before being signed, and as such, a party is presumed to have read what she signed. Hadden Co., L.P.A. v. Del Spina (2003), 2003 Ohio 4507, 15. In other words, "parties to contracts are presumed to have read and understood them and a signatory is bound by a contract that he or she willingly signed." Pref. Cap., Inc. v. Power Eng. Group, Inc. (2007), 112 Ohio St. 3d 429, 433, 860 N.E.2d 741, 746. No question of fact exists that Wolk was well versed and aware of her ability to have an independent inspection should she have so chosen. Such a "duty" is not a question that must be given to ajury and the same was properly decided by the courts below. B. PROPOSITION OF LAW II: THERE WERE NO GENUINE ISSUES OF MATERIAL FACT AND APPELLEES CLAIMS WERE CORRECTLY GRANTED JUDGMENT PURSUANT TO OHIO LAW Appellants argue that licensed real estate agents are held to a certain standard and owe their principals certain duties, as do their brokers. Appellees do not dispute this. Appellees maintain that they abided by such standards during this transaction. The fact in this case is that Wolk, alone, was the principal in this transaction, no one else. Therefore, Lacy and Realty One had a duty only to Wolk, not any of the other series of players named in an attempt to muddy the waters. Additionally, in this Proposition of Law, Appellants cite to "expert" reports out of context that the trial court either deemed stricken due to Appellants' failure to properly authenticate the same, or not relevant to the issues of the case. These are all attempts to skew the issues. Here the Common Pleas Court and the Eighth Appellant District both found that Wolk was properly advised and knew of her right to obtain an inspection. Appellants cite to law holding that "the fiduciary duty imposed by statute on an agent or broker is to advise a client to obtain expert advice for material matters when necessary or appropriate." That is what occurred here. By Wolk reading lines 111 to 120 of the purchase contract, discussing it, and initialing the same, Wolk was 10

11 advised. Similarly, by reading the agency agreement, which discusses mold inspection, Wolk was advised. The Eighth Appellant District held that "the record indicates that Lacy read through each of these agreements with Wolk and that Wolk personally initialed her name in acceptance of each, without objection. Collectedly, these agreements recommended that they buyer obtain a professional home inspection. In accordance with R.C , Lacy adequately advised Wolk of her rights to a home inspection and, as evidenced by her initials and signature, Wolk voluntarily waived her rights to such inspection." (See, Eighth App. Dist. Entry, pg. 18). Such a "duty" is not a question that must be given to a jury as Appellant erroneously claims. Appellants ask this court to believe that any and all claims of breach of fiduciary duty must always go to a jury for determination. This is not accurate and the case law that Appellants cite are not on this point. In the Memorandum to this Court, as in motions to the trial and district courts, Appellants cite to John Bedwell v. John Schmitt (2002), 2002 Ohio 6909, and Kwait v. John Davis Management Co. (1974), 42 Ohio App.2d 63. These cases are misrepresented by Appellants. Kwait does not address breach of fiduciary duty, nor does it even contain facts about real estate agents or real estate law. Bedwell, does address real estate agents and the duties that they owe; however, is not applicable in this case, as it deals with the agent's concealment of a defect. Bedwell at 46. Here, there is no question as to concealment of a defect. No questions of fact remain for the record. The parties conduct stands undisputed and shows that Wolk's right as a consumer was not violated as she was well aware of her options due to the actions of Lacy and Realty One. C. PROPOSITION OF LAW III: THE TRIAL COURT WAS WELL WITHIN ITS DISCRETION TO DENY APPELLANTS SUPPLEMENTAL EXHIBITS AND DISCOVERY REQUESTS DUE TO APPELLANTS FAILURE TO FOLLOW THE OHIO CIVIL RULES OF PROCEDURE Appellants attempt to have this Court believe that some type of a conspiracy took place between the Defendants that prevented the Plaintiffs from obtaining discovery. This is inaccurate. 11

12 Appellees responded to Appellants' discovery requests; however, Appellants' first request was not properly made until August 6, By this time, the trial court's July 10, 2009 dispositive motion deadline had passed and Lacy and Realty One filed their respective motions on July lotn Appellants' response date to respond to said motions was on August 10, Either counting twenty-eight days from the July 13, 2009 date, or the August 6, 2009 day, Appellants would likely not have received any discovery response from Appellees until after Appellants' Response date to the summary judgment motions had passed. Here, Appellees responded with discovery responses on September 5, 2009, twenty-eight days from when they received the discovery requests in an electronic format (although Realty One did send some document response prior to this date). Any delay on obtaining discovery was the procrastination of Appellants who chose to wait until Appellees had already filed their respective Motions for Summary Judgment before they sent a first request for discovery - eight months after the complaint was filed naming these Appellees. On August 10, 2009 instead of filing a response brief, or a motion and affidavit pursuant to Civ.R. 56(F), Appellants requested forty (40) additional days to respond in a"motion for leave." (See, Pls. Aug. 10, 2009 Mot.). The trial court denied the request due to plaintiffs' failure to submit a motion and affidavit pursuant to Civ. R. 56(F). However, when Appellants filed their Brief in Opposition instanter, on September 8, 2009, the same was allowed. APPELLANTS' FAILURE TO FILE A TIMELY CIV.R. 56(F) MOTION Appellants filed a late response to Appellees' motions for summary judgment on Sept. 8, 3 Appellees bring to this Court's attention Appellants' assertion that discovery was propounded upon Appellees on July 13, admittedly via only facsimile - which Appellees, whether received or not, did not deem proper as pursuant to the Civil Rules such discovery shall be sent via electronic means. Civ.R. 33. Therefore, neither Appellee began to respond to discovery until August 6, 2009 when an electronic copy was sent. Appellees twenty-eight (28) days to respond therefore began on August 6, 2009, and responses were submitted on September 5, The Eighth Appellate District cites to the July 13, 2009 date. 12

13 2009. Appellants then filed two supplements to that response, the first supplement was filed on November 6, 2009 and the second supplement on December 1, Appellees had filed their joint reply brief to their respective summary judgment motions on October 19, Therefore, Appellees motion for summary judgment was ripe for ruling before Appellants even submitted their first "supplement." Neither "supplements" contained any newly discovered evidence or case law - the same information had been available months prior. Additionally, it is not clearly stated by Appellant in the Memorandum to this Court as to when Appellant finally submitted a request under Civ.R. 56(F), Appellants did finally submit a Civ.R. 56(F) motion and affidavit from counsel, but it was attached to Appellants' second supplemental brief on December 1, Appellant fails to mention these points in the Memorandum to this Court in an attempt to nusconstrue facts; it reads as if a Civ.R. 56(F) motion was filed early in the dispositive motion timeline. In reality, the Civ.R. 56(F) motion and affidavit were not filed until December 1, 2009, at which point it was moot - it was attached to the very documents sought. The Common Pleas Court also deemed stricken the documents attached to these supplements because they were unauthenticated, irrelevant and/or late and filed without request for leave as required by local rule. This was well within the Common Pleas Court's discretion to so deny. 1. CONTINUING EDUCATION CLASSES Lacy no longer had any of her continuing educating class materials in her possession, and there is no support to indicate that she ever received manuals for classes she attended; Realty One never had any such materials. Lacy provided what she had. Regardless, Appellants downloaded over 40 pages of unauthenticated Web pages, from several various sources (one-page was from a 13

14 government Web site)', and attempted to supplement the same to their response motion. Despite the fact that these Web pages were not in conformance with Civ.R. 56(C), and had no affidavit or deposition testimony to authenticate them, they were stricken for several other reasons. The materials would not lead to relevant evidence for the same reason the court deemed the training manuals were not reasonably calculated to lead to the discovery of admissible evidence, (See, Common Pleas Court's Sept. 16, 2009 Entry). The trial court also struck these documents from the record due to their untimely filing and the failure to comply with Loc.R. 11(D) of the Court of Common Pleas of Cuyahoga County, General Division ("Loc.R. 11(D)"). The trial court did not abuse its discretion by denying plaintiffs' motion. The admission or exclusion of evidence rests in the sound discretion of the trial court. Sage, supra. Similarly, an appellate court's review of a trial court's interpretation or application of its local rules is an abuse of discretion standard. Vales, Supra. Loc.R. 11(D); states that a reply or additional briefs upon motions and submissions may be filed with leave of the Court only upon a showing of good cause. When the court grants leave to file reply or additional briefs pursuant to Loc.R. 11(D), it can do so on its own terms. Cleveland Clinic Found. v. Comm. Group Benefits, Inc. (2002), Cleveland App. No , 2002 Ohio 1414, 13. Here, the Common Pleas Court denied the supplements for several reasons, including, but not limited to the failure of the exhibits to conform with Civ.R. 56(C), failure to request leave pursuant to local rule, and failure to file a timely Civ.R. 56(F) motion. This decision was well within the trial court's discretion. ^ Ohio courts have recognized that government publications may be self-authenticating in some circumstances under Evid.R. 902, the court would expect the proponent of a downloaded document to provide, at a minimum, the Web address and path where the document was located, the date and title of the document, the date the document was accessed/-downloaded, and a sworn statement that the content of the copy submitted to the court was not altered from the content appearing on the website. In short, although the legal requirements for admissibility of downloaded documents may not be well established, a party statement that "I downloaded these pages from the internet" is probably not sufficient to authenticate a downloaded document. State ex rel. Leslie v. Ohio House Fin. Agency (2003), Franklin App. No 02AP-1 147,2003 Ohio 6560,

15 2. TRANSCRIPTS OF KEENE AND CASSARA The deposition transcripts of Keene and Cassara were included in the second supplement. Pursuant to Loc.R. 11(D), the Common Pleas Court struck the same for the late filings and failure to request leave. By the time Appellants attempted to supplement the record with the transcripts on December 1, 2009, Appellees had already filed a reply brief approximately two months prior on October 19, The summary judgment motions of the Appellees were on schedule with the court's dispositive motion dates and were ripe for ruling. Appellants did not discover new evidence or find newly discovered witnesses; their own delay in seeking discovery caused the delay in depositions. Neither counsel for Appellees represented these deponents, both had their own counsel with whom scheduling occurred. Additionally, Keene and Cassara had no personal knowledge of the transaction at issue; nor were they expert witnesses who could give any opinion testimony. Such failures and delays is cause for the trial court to so strike the supplements and exhibits. IV. CONCLUSION For the reasons discussed, this case does not involve a matter of public or.great general interest. Lacy and Realty One respectfully requests the Supreme Court of Ohio refuse jurisdiction. Respectfully submitted, Signature via telephone aqthority Frances F. Allington ( ) Attorneyfor Appellee Lacy Lorain Road Fairview Park OH Telephone: (440) Facsimile: (440) Francesallingtongsbcglobal.net Karl H. Schneider ( ) Trina Goethals ( ) (counsel of record Attorneys for Appellee Realty One Maguire & Schneider, LLP 250 Civic Center Dr., Ste. 500 Columbus OH Telephone: (614) Facsimile: (614) khschneidergms-lawfirm.com tgoethals@lms-lawfirm.com 15

16 CERTIFICATE OF SERVICE This is to certify that a true and accurate copy of the foregoing was served upon Mark M. George, Attorney for the Plaintiff, 5005 ockside Road, Suite 600, Independence, Ohio 44131, by regular U.S. mail, postage prepaid, this ay o M 2011; and Johnathan Stark at 600 Superior Ave. East Suite 1600, Cleveland, OH this ^^ day of May