Petition for Writ of Certiorari — Derrick Martin King, Petitioner v. Budget Car Mart, LLC
Supreme Court briefDec 20, 2023
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IN THE SUPREME COURT OF THE UNITED STATES
2 0 2023
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DERRICK MARTIN KING, Petitioner
vs.
CTTT ENTERPRISES LLC dba BUDGET CAR MART, Respondent
On Petition for Writ of Certiorari to the Ohio Ninth District Court of Appeals
PETITION FOR WRIT OF CERTIORARI
DERRICK MARTIN KING
1445 Crestview Avenue
Akron, Ohio 44320-4049
Pro se Petitioner
QUESTIONS PRESENTED FOR REVIEW
Whether the Supreme Court of Ohio’s administrative orders
necessitated by the COVID-19 pandemic regarding the use of remote
depositions violates a civil litigant’s constitutional right to access to the
courts and due process of law under the First and Fourteenth
Amendments.
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I
i
1
LIST OF PARTIES
Petitioner DERRICK MARTIN KING (hereinafter “Mr. King”) is an
individual adult person who purchased a motor vehicle. Mr. King resides in Akron,
Ohio.
Respondent CTTT ENTERPRISES LLC dba BUDGET CAR MART
(hereinafter “BCM”) is an Ohio limited liability company with a principal place of
business in Springfield Township, Ohio and Norton, Ohio. CTTT Enterprises LLC
operates two (2) used car dealerships under the fictitious name Budget Car Mart.
u
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW..:
i
LIST OF PARTIES
ii
TABLE OF CONTENTS
iii
TABLE OF AUTHORITIES
vi
PETITION FOR A WRIT OF CERTIORARI.
1
OPINION BELOW
1
STATEMENT OF JURISDICTION
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
1
STATEMENT OF THE CASE
2
A.
B.
C.
2
Global Pandemics and their Effects on the Courts
1.
The influenza pandemic of 1918.
2
2.
The severe acute respiratory syndrome
coronavirus 2 (SARS-CoV-2) outbreak of
2019-2020........................................................... .
4
6
The Courts Impose Changes Due to the Pandemic.
1.
State of Ohio’s response to the pandemic.
6
2.
Other state and federal courts.
7
7
Mr. King’s Civil Lawsuit against BCM.
1.
Mr. King’s purchase of used car and
subsequent mechanical problems associated
with the vehicle.---------- --- -------------------------
7
2.
Mr. King initiates a complaint against BCM.
8
3.
The trial court granted summary judgment in
favor of BCM........................... ........ ...................
9
The state appellate court affirmed the trial
court’s judgment, and the state’s highest court
declined jurisdiction__________ ____________
.10
4.
in
REASONS FOR GRANTING THE WRIT
13
THIS COURT SHOULD GRANT THE PETITION FOR WRIT
OF CERTIORARI BECAUSE IT HAS REPEATEDLY HELD
THAT PARTIES HAVE A CONSTITUTIONAL RIGHT OF
ACCESS TO THE COURTS. THAT RIGHT OF ACCESS TO
THE COURTS IS APPLICABLE EVEN DURING THE COVID19 PANDEMIC......................................................................................
A.
13
Under the First, Fifth, and Fourteenth Amendments to
the U.S. Constitution, the Right of the People to Petition
their Government for a Redress of Grievances is
Recognized.................................................................................
13
B.
Impact of the COVID-19 Pandemic on the Courts
14
C.
The Trial Court’s Reliance on the Ohio Supreme Court’s
Administrative Orders Unconstitutionally Denied Mr.
.King of his First Amendment Right to Access to the
Courts and his Fourteenth Amendment Right to Due
Process Under the Law..........................................................
15
Courts have Held that Despite the COVID-19
Restrictions, the Constitutional Protections Afforded to
Litigants are Still Applicable..............................................
16
D.
CONCLUSION
19
PROOF OF SERVICE
21
APPENDIX A:
King v. Budget Car Mart LLC
Ohio 9th District Court of Appeals (Summit County), Case No.
CA-30293
August 9, 2023 Opinion affirming decision of trial court..........
A-l
APPENDIX B:
King v. Budget Car Mart LLC.
Supreme Court of Ohio, Case No. 2023-1038
October 10, 2023 Order declining jurisdiction.
APPENDIX C:
King v. Budget Car Mart LLC
iv
B-l
Ohio Court of Common Pleas (Summit County), Case No. CV2021-07-2074
April 20, 2022 Order granting Budget Car Mart LLC’s motion
for summary judgment.................................................................
C-l
APPENDIX D:
In re Tolling of Time Requirements Imposed by Rules
Promulgated by the Supreme Court & Use of Technology
2020-0hio-1166, 158 Ohio St.3d 1447, 141 N.E.3d 974
March 27, 2020 Ohio Supreme Court Administrative Order.
D-l
APPENDIX E
In re Remote Administration of Oaths and Affirmations
2020-0hio-3195, 159 Ohio St.3d 1402, 146 N.E.3d 578
June 3, 2020 Ohio Supreme Court Administrative Order.
E-l
APPENDIX F:
In re Use of Technology and Remote Administration of Oaths
and Affirmations
2020-0hio-3861, 159 Ohio St.3d 1461, 150 N.E.3d 107
July 31, 2020 Ohio Supreme Court Administrative Order.....
v
F-l
TABLE OF AUTHORITIES
Cases
California Motor Transport Co. v. Trucking Unlimited,
404 U.S. 508, 92 S. Ct. 609, 30 L. Ed.2d 642 (1972)...
14
De Lench v. Archie,
2020 U.S. Dist. LEXIS 58049, 2020 WL 1644226 (D. Mass., Apr. 2, 2020)
14
Detroit Free Press v. Ashcroft,
303 F.3d 681, (6th Cir. 2002)
16
Ex parte Hull,
312 U.S. 546, 549, 61 S. Ct. 640, 641, 85 L. Ed. 1034,
14
Globe Newspaper Co. v. Superior Court for Norfolk County,
457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982)....
16
Graham v. Ocwen Loan Servicing, LLC,
2016 U.S. Dist. LEXIS 186459, 2016 WL 7443288 (S.D. Fla. July 1, 2016)
15
Grano v. Sodexo Management, Inc.,
335 F.R.D. 411 (2020)...................
15
In re Remote Administration of Oaths and Affirmations,
159 Ohio St.3d 1402. 202O-Ohio-3155, 146 N.E.2d 578
7
In re Tolling of Time Requirements Imposed by Rules Promulgated by the
Supreme Court and Use of Technology,
158 Ohio St.3d 1447, 2020-0hio-1166, 141 N.E.2d 974.................................
6
In re Use of Technology and Remote Administration of Oaths and
Affirmations,
159 Ohio St.3d 1461, 2020-0hio-3861, 150 N.E.3d 107...............
7
Johnson v. Avery,
393 U.S. 483, 485, 89 S. Ct. 747, 748, 21L. Ed.2d 718.
14
King v. Budget Car Mart LLC,
2022 WL 20651436 (Ohio Com.P. Apr. 20, 2022)
9, 10
King v. Budget Car Mart LLC,
2022 WL 20651439 (Ohio Com.P. Apr. 4, 2022)
9
Maryland v. Craig,
497 U.S. 836, 110 S. Ct 3157, 111 L. Ed.2d 666 (1990)
18
vi
Richmond Newspapers, Inc. v. Virginia:,
448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980)
16
RPFamily, Inc. v. Commonwealth Land Title Ins. Co.,
2011 U.S. Dist. LEXIS 137334, 2011 WL 6020154 (E.D.N.Y. Nov. 30, 2011)
15
Sinceno v. Riverside Church in City of New York,
2020 U.S. Dist. LEXIS 47815, 2020 WL 1302053, at *1 (S.D.N.Y. Mar. 18,
2020)....................................... ........................................................................ ........
14
State v. Stefanko,
2022-Ohio-2569, 193 N.E.3d 632 (Ohio App. 9 Dist. Jul. 27, 2022)
17
United States v. Benson,
79 F. App’x 813 (6th Cir. 2003)
18
United States v. Carter,
907 F.2d 1199 (9th Cir. 2018)
18
United States v. Cosher,
2020 U.S. Dist. LEXIS 106293, 2020 WL 3271767 (D. Mont. Jun. 17, 2020)
18
United States v. Gigante,
166 F.3d 75 (2d Cir. 1999)
18
United States v. Rosenau,
870 F. Supp. 2d 1109 (W.D. Wash. 2012)
19
Usov v. Lazar,
2015 U.S. Dist. LEXIS 47859, 2015 WL 5052497 (S.D.N.Y, Aug. 25, 2015)
15
Statutes
28 U.S.C. § 1257(a)
1,13
Constitutional Provisions
Ohio Const, art I § 16 (1912)
2, 14
U.S. Const, amend. I (1791)
1, 13, 14
U.S. Const, amend. XIV § 1 (1868)
1, 14
Court Rules
Fed. R. Civ. P. 30(B)(4)
16
vn
Fed.R.Civ.P. 30(b)
15
Former Ohio R. Civ. P. 30(B)(6) (repealed July 1, 2023)
16
Ohio R. Civ. P. 30(B)(6).
16
Other Authorities
Balter, Emma, From Toilet Paper to Roller Skates, These Were the Great
Shortages of 2020, Houston Chronical (Dec. 30, 2020), available online at
https://www.houstonehronicle.com/life/article/shGpping-shortageS'2020covid-pandemic-15836207.php (last accessed Dec. 14, 2023)........................
5
Chow, Dennis, Where Did the Coronavirus Come From? Past Outbreaks
Provide Hints, NBC News (Feb. 28, 2020), available online at
https://www.nbcnews.com/science/science-news/where-did-new-coronaviruscome-past-outbreaks-provide-hints-nl 144521 (last accessed Dec. 14, 2023)..
4
Cushman, Claire, Epidemics and the Supreme Court, Supreme Court
Historical Society (Jan. 7, 2021), available online at
https://supremecourthistory.org/scotus-scoops/epidemics-and-the-supremecourtI (last accessed Dec. 12, 2023)_____ ___ ____ .....___________________
.4
Ginsberg, Nina et al., Criminal Court Reopening and Public Health in the
COVID-19 Era: National Association of Criminal Defense Lawyers
Statement of Principles and Report (June 2, 2020), available online at
https://nacdl.org/getattachment/56802001-lbb9-4edd-814dc8d5c41346f3/criminal-court-reopening-and-public-health-inthe-covid-19era.pdf (last accessed Dec. 14, 2023).................................................................
17
Rubin, Jordan Coronavirus Containment Collides With U.S. Constitutional
Rights, Bloomberg Law (March 31, 2020), available online at
https://news.bloomberglaw.com/uslaw-week/coronavirus-containmentcollides-with-u-s-constitutional-rights (last accessed Dec. 14, 2023)..........
19
Shammas, Michael & Michael Pressman, Memorandum: The Permissibility &
Constitutionality of Jury Trial by Videoconference. Civil Jury Project (Jul.
30, 2020), available online at
https://civiljuryproject.law.nyu.edu/memorandum-the-permissibilityconstitutionality-of-jury-trial-byvideoconference/ (last accessed Dec. 12,
2023)............................................................................................................................
5
Siegal, Daniel, Texas Court Pioneers Trial by Zoom in Attorney Fee Dispute,
Law360 (Apr. 22, 2020), available online at
www.law360.com/articles/1265459/texas-court-pioneers-trial-by-zoom-inatty-fee-dispute (last accessed Dec. 12, 2023)............ .....................................
6
Vlll
U.S. Centers for Disease Control, The 1918 Flu Pandemic: Why It Matters
TOO Years Later (May 14, 2018), available online at
https://blogs.cdc.gov/publichealthmatters/2018/05/1918-flu/ (last accessed
Dee, 14, 2023)........................................................................................................
2
Walsh, Mark, Outbreaks of Disease Have Shuttered the Supreme Court Going
Back More Than 2 Centuries, ABA Journal (Mar. 19, 2020), available
online at https://www.abajournal.com/web/article/outbreaks-haveshuttered-the-supreme-court-going-back-more-than-two-centuries (last
accessed Dec. 12, 2023)...........................................................................................
3
IX
PETITION FOR A WRIT OF CERTIORARI
Petitioner DERRICK MARTIN KING, appearing pro se, respectfully petitions
this Court for a writ of certiorari to review the judgment of the Ohio Ninth District
Court of Appeals.
OPINION BELOW
The decision of the Ohio Ninth District Court of Appeals (attached herein and
marked as APPENDIX A) which affirmed the decision of the Summit County (Ohio)
Court of Common Pleas is reported at 2023-Ohio-2756, 2023 Ohio App. LEXIS 2720,
2023 WL 5093868 (Aug. 9, 2023).
The decision of the Ohio Supreme Court declining jurisdiction (attached herein
and marked as APPENDIX B) is unpublished and reported in table form at 2023Ohio-3670, 171 Ohio St.3d 1456, 218 N.E.3d 974 (Oct. 10, 2023).
STATEMENT OF JURISDICTION
Petitioner invokes the jurisdiction of this Court under 28 U.S.C. § 1257(a) as
he timely filed this petition for writ of certiorari within ninety (90) days of the Ohio
Supreme Court’s decision which declined jurisdiction.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
U.S. Const, amend. I (1791) states that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the government for a redress of grievances.”
U.S. Const, amend. XIV § 1 (1868) states that:
1
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Ohio Const, art. I § 16 (1912) states that:
All courts shall be open, and every person, for an injury done him in his
land, goods, person, or reputation, shall have remedy by due course of
law, and shall have justice administered without denial or delay.
Suits may be brought against the state, in such courts and in such
manner, as may be provided by law.
STATEMENT OF THE CASE
A.
Global Pandemics and their Effects on the Courts.
1.
The influenza pandemic of 1918.
The 1918 influenza, more commonly known as the "Spanish flu," spread from
1918-1919 and infecting nearly 500 million people worldwide. U.S. Centers for
Disease Control, The 1918 Flu Pandemic: Why It Matters 100 Years Later (May 14,
2018), available online at https://blogs.cdc.gov/publichealthmatters/2018/05/1918-flu/
(last accessed Dec, 14, 2023). The situation was very dire. As the U.S. Centers for
Disease Control noted:
An estimated 195,000 Americans died during October alone. In the fall
of 1918, the United States experienced a severe shortage of professional
nurses during the flu pandemic because large numbers of them were
deployed to military camps in the United States and abroad. A blackand-white advertisement for the Chicago School of Nursing. This
shortage was made worse by the failure to use trained African American
nurses. The Chicago chapter of the American Red Cross issued an
urgent call for volunteers to help nurse the ill. Philadelphia was hit hard
by the pandemic with more than 500 corpses awaiting burial, some for
more than a week. Many parts of the U.S. had been drained of
2
physicians and nurses due to calls for military service, so there was a
shortage of medical personnel to meet the civilian demand for health
care during the 1918 flu pandemic. In Massachusetts, for example,
Governor McCall asked every able-bodied person across the state with
medical training to offer their aid in fighting the outbreak.
As the numbers of sick rose, the Red Cross put out desperate calls for
trained nurses as well as untrained volunteers to help at emergency
centers. In October of 1918, Congress approved a $1 million budget for
the U. S. Public Health Service to recruit 1,000 medical doctors and
more than 700 registered nurses.
At one point in Chicago, physicians Were reporting a staggering number
of new cases, reaching as high as 1,200 people each day. This in turn
intensified the shortage of doctors and nurses. Additionally, hospitals
in some areas were so overloaded with flu patients that schools, private
homes and other buildings had to be converted into makeshift hospitals,
some of which were staffed by medical students.
Id. As a result of the pandemic, this Court postponed scheduled arguments, and
denied entry into the courthouse to all persons but lawyers.1 See Mark Walsh,
Outbreaks of Disease Have Shuttered the Supreme Court Going Back More Than 2
Centuries,
ABA
Journal
(Mar.
19,
2020),
available
online
at
https://www.abaiournal.com/web/article/outbreaks-have-shuttered-the-supremecourt-going-back-more-than-two-centuries (last accessed Dec. 12, 2023); Claire
Cushman, Epidemics and the Supreme Court, Supreme Court Historical Society (Jan.
1 In 2001, this Court was affected by another public health crisis, when anthrax-laden mail was sent
to several government departments. See R. Hobday & J. Cason, The Open-Air Treatment of Pandemic
Influenza, American Public Journal of Health (Oct. 2009), available online at
https://www.ncbi. nlm.nih.gov/Dmc/articles/PMC4504358/pdfyAJPH.2008.134627.pdf (last accessed
Dec. 12, 2023). However, the justices were able to move to a nearby courthouse used by the D.C. Circuit
Court to avoid contamination. Id,
3
7, 2021), available online at https://supremecourthistorv.org/scotus-scoops/epidemicsand-the-supreme-court/ (last accessed Dec. 12, 2023).
2.
The severe acute respiratory syndrome coronavirus 2
(SARS-CoV-2) outbreak of 2019-2020.
In December 2019, the severe acute respiratory syndrome coronavirus 2 (SARS
CoV-2) (hereinafter “COVID-19”) appeared in Wuhan, China. Denis Chow, Where Did
the Coronavirus Come From? Past Outbreaks Provide Hints, NBC News (Feb. 28,
2020), available online at https://www.nbcnews.com/science/science-news/where-didnew-coronavirus-come-past-outbreaks-provide-hints-nl 144521 (last accessed Dec. 14,
2023). It was marked by mild to severe symptoms that include fever, cough, shortness
of breath, chills, muscle pain, headache, sore throat, loss of taste or smell, congestion,
runny nose, nausea, vomiting, and diarrhea. National Found, for Infectious Diseases,
2019
Novel
Coronavirus
(COVID-19)
Outbreak,
available
online
at
www.nfid.org/infectious-diseases/19036/ (last accessed Jan. 29, 2021). People also
could be asymptomatic yet test positive for the virus. U.S. Centers for Disease Control
and
Prevention,
Clinical
Care
Guidance,
available
online
at
www. cdc. gov/coronavirus/2019-nco v/hcp/clinical- guidance -managementpatients.html (last updated Feb. 16, 2021). As a result of its silent spread, affected
individuals may experience the full magnitude of the virus or nothing at all. Id. This
causes the kind of fear that causes people to hoard toilet paper, flour, and handsanitizer. See Carol Mathews, Hoarding and the COVID-19 Pandemic, Psychology
Today
(Oct.
30
2020),
available
online
www.psvchologvtodav.com/us/blog/overcome-anxietv/20201Q/hoarding-and-the4
at
covid- 19-pandemic (last accessed Dec. 14, 2023); Emma Balter, From Toilet Paper to
Roller Skates, These Were the Great Shortages of 2020, Houston Chronical (Dec. 30,
2020), available online at https://www.houstonchronicle.com/life/article/shoppingshortages-2020-covid-pandemic-15836207.php (last accessed Dec. 14, 2023). At its
core, the fear stokes panic; the virus has a highly contagious nature and sometimes
a deadly outcome. U.S. Centers for Disease Control and Prevention, COVID-19:
Frequently
Asked
Questions,
available
online
at
https://www.cdc.gov/coronavirus/2019-ncov/faa.html (last updated May 7, 2021).
In March 2020, the novel eoronavirus (“COVID-19”) made its impact on the
entire planet. More than 40 million Americans have been infected with the COVID19 virus and more than 653,000 have died from issues related to COVID-19. Centers
for Disease Control and Prevention. COVID data tracker, available online at
https://covid.cdc.gOv/covid-data-tracker/#datatracker-home (last accessed May 4,
2023).
Since March 2020, no institution has been immune to the COVID-19 pandemic,
including the courts. Jury trials in every state have been halted for months. Michael
Shammas
&
Michael
Pressman,
Memorandum:
The
Permissibility
&
Constitutionality of Jury Trial by Videoconference. Civil Jury Project (Jul. 30, 2020),
available
online
at
https://civiliurvproiect.law.nvu.edu/memorandum-the-
permissibilitv-constitutionalitv-of-iurv-trial-bwideoconference/ (last accessed Dec.
12, 2023). Texas was the first state to fully attempt to hold both a bench trial and a
civil jury trial on a video conferencing platform. On April 22, 2020, a one-day bench
5
trial was held in Harris County, Texas by Judge Beau Miller, which was then live
streamed on the court's website. Daniel Siegal, Texas Court Pioneers Trial by Zoom
in Attorney
Fee
Dispute,
Law360
(Apr.
22,
2020),
available
online
at
www.law360.com/articles/1265459/texas-court-pioneers-trial-bv-zoom-in-attv-feedispute (last accessed Dec. 12, 2023). Over the course of the day-long trial, which
involved an attorney fee dispute case, more than 2,000 virtual attendees watched the
live stream. Id. However, less than a month later, the state was far less successful in
their attempts to conduct a civil jury trial using remote video software. See K. Buehler,
Texas Court Holds First Jury Trial Via Zoom in Insurance Feud, Law360 (May 18,
2020), available online at https://www.law360.com/articles/1274097/texas-courtholds-first-iurv-trial-via-zoom-in-insurance-feud (last accessed Dec, 11, 2023), The
potential challenges faced by Harris County quickly became apparent, when, during
jury selection, the presiding judge had to instruct jurors not to Google information,
use their phones, or allow family members into the room. Id.
B.
The Courts Impose Changes Due to the Pandemic.
1.
State of Ohio’s response to the pandemic.
On March 27, 2020, the Supreme Court of Ohio issued its first administrative
order regarding the COVID-19 pandemic. In re Tolling of Time Requirements Imposed
by Rules Promulgated by the Supreme Court and Use of Technology, 158 Ohio St.3d
1447, 2020-0hio-1166, 141 N.E.2d 974. These emergency orders were only intended
to be in effect for a short period of time. The Supreme Court of Ohio later issued a
nunc pro tunc order stating that “Any oath or an affirmation required by a rule of the
Court may be administered remotely by use of audio- or video-communication
6
technology, provided the technology shall allow the person administering the oath or
affirmation to positively identify the person taking the oath or making the
affirmation.” In re Remote Administration of Oaths and Affirmations, 159 Ohio St.3d
1402. 2020-0hio-3155, 146 N.E.2d 578; In re Use of Technology and Remote
Administration
of
Oaths
and
Affirmations,
159 Ohio St.3d 1461, 2020-0hio-3861, 150 N.E.3d 107.
2.
Other state and federal courts.
With regards to the federal courts, the Administrative Office of the U.S. Courts
published a collection of all of the COVID-19 court orders that were issued in response
to the pandemic. Administrative Office of the U.S. Courts, Court Orders and Updates
During COVID-19 Pandemic, available online at https://www.uscourts.gov/aboutfederal-courts/court-website-links/court-orders-and-updates-during-covidl9pandemic (last accessed Dec. 12, 2023).
C.
Mr. King’s Civil Lawsuit against BCM.
1.
Mr. King’s purchase of used car and subsequent
mechanical problems associated with the vehicle.
On April 28, 2021, Mr. King walked into_one of the BCM used car dealerships
with the intent of purchasing a vehicle for his personal use. Mr. King subsequently
purchased a white 2010 Chevy Malibu LT for $4,635.02. The written agreement
indicated that the subject vehicle was being sold “as-is” with no warranties and the
odometer displayed 138,867 miles at the time of sale.
Approximately one month following the purchase of the subject vehicle, Mr.
King began to notice a loud noise emanating from the vehicle whenever he applied
7
the brakes. On June 1, 2021, Mr. King took the subject vehicle for a vehicle inspection.
The inspection revealed that the vehicle needed to have the brake pads and rotors
(both front and rear axles) replaced. King was essentially without a reliable vehicle
for several weeks and drove the vehicle very minimally until he was able to have the
vehicle repaired. The total cost of the replacement of the brakes was $1,281.01 and a
subsequent replacement air conditioner compressor was $320.25.
2.
Mr. King initiates a complaint against BCM.
On July 13, 2021, Mr. King filed a civil complaint in the Summit County Court
of Common Pleas naming BCM as the sole defendant. The complaint alleged the
following causes of action (1) violation of the Ohio Consumer Sales Practices Act; (2)
breach of express warranty condition; (3) breach of implied warranties of
merchantability and fitness; (4) fraud and misrepresentation; (5) unconscionability;
and (6) breach of covenants of good faith and fair dealing. On November 8, 2021, Mr.
King filed an amended complaint alleging three causes of action: (1) violation of the
Ohio Consumer Sales Practices Act; (2) fraud, misrepresentation/negligent
misrepresentation; and (3) breach of express or implied contract/breach of covenants
of good faith. BCM filed a timely answer to the initial complaint and the amended
complaint.
During the discovery process, lead counsel for BCM submitted a request for
admission which asked Mr. King to admit or deny ““[t]hat you have falsely claimed
r
to be disabled to obtain benefits from either the state, federal, or local government
agencies.” There was no reasonable basis for that request for admission. Lead counsel
for BCM also attempted to inquire about a felony conviction that was over ten (10)
8
years old in violation of the Ohio Rules of Evidence. Finally, lead counsel for BCM ,
noticed Mr. King to appear at an oral deposition and when Mr. King appeared at the
deposition the court reporter was not physically present in violation of the Ohio Rules
of Civil Procedure that was applicable at the time of the deposition.2
3.
The trial court granted summary judgment in favor
of BCM.
On April 20, 2020, the trial court issued a final judgment denying Mr. King’s
motion for summary judgment and granting BCM’s motion for summary judgment.
King v. Budget Car Mart LLC, 2022 WL 20651436 (Ohio Com.P. Apr. 20, 2022)
(Appendix C). The trial court’s reasoning is as follows:
When the evidence is viewed in the light most favorable to Plaintiff,
reasonable minds can only reach one conclusion, which is adverse to
Plaintiff. There is no genuine issue of material fact remaining to be
litigated regarding whether Defendant violated the CSPA, engaged in
an unfair or deceptive act or practice, engaged in fraud, concealment or
negligent misrepresentation, and breached an express or implied
contract or the covenants of good faith and fair dealing. Plaintiff is
entitled to judgment as a matter of law. A review of the record reveals
Plaintiff was aware of the “as-is” condition of the vehicle when he
purchased it. He test drove the vehicle in a small circle around the
parking lot before deciding to buy it. The brakes and air conditioner were
working. Statements by the salesperson that the eleven year old car
with 138,867 miles on it was recently acquired from Fred Martin was a
true statement. The salesperson’s statement that the car was in
“excellent” or “perfect” condition are mere expressions of opinion. The
service records do not reveal any issues with the brakes or air
conditioner which Defendant could have concealed from Plaintiff.
Plaintiff benefitted from his purchase of the car as he continued driving
the vehicle. It is not an unfair or deceptive act or practice for a used car
dealer to be unable to foresee brake issues that may arise with a vehicle
2 Mr. King filed a motion to disqualify counsel for BCM, which the trial court denied. King v. Budget
Car Mart LLC, 2022 WL 20651439 (Ohio Com.P. Apr. 4, 2022).
9
thirty days after it is purchased, or a fan belt and air conditioner
problem one hundred and twenty days later. The written documents
constitute the final written agreement of the parties and precludes
Plaintiffs contract claims. Plaintiff has not articulated what contract
term, whether express or implied, Defendant is alleged to have breached,
or is not performing in good faith.
Appendix C at C-3, 2021 WL 20651436 at *3.
4.
The state appellate court affirmed the trial court’s
judgment, and the state’s highest court declined
jurisdiction
Mr. King filed a timely notice of appeal to the Summit County Court of Appeals
(Ninth Appellate District). The assignments of error presented to the Summit County
Court of Appeals were the following: (1) the trial court erred in granting [Appellee’s]
motion to strike the documents obtained from the BBB of Akron and the Ohio
Attorney General; (2) the trial court erred in denying [Appellant’s] motion to strike
the filing of the January 12, 2022 deposition transcript; (3) the trial court erred in
denying [Appellant’s] motion to disqualify Lawrence Raymond Bach as counsel for
[Appellee] ; (4) The trial court erred in denying [Appellant’s] motion for a protective
order; and (5) the trial court erred in granting summary judgment in favor of
[Appellee] and denying the motion for entry of a summary judgment in [Appellant’s]
favor.
On August 9, 2023, the court of appeals affirmed the decision in a unanimous
decision. King v. Budget Car Mart, LLC, 2023-Ohio-2756, 2023 Ohio App. LEXIS 2720,
2023 WL 5093868 (Ohio App.9 Dist. Aug. 9, 2023). With respect to the first
assignment of error (granting BCM’s motion to strike evidence), the court of appeals
found that the fact that BCM did not object to Mr. King’s discovery of the documents
10
did not mean that it waived its right to object to Mr. King’s subsequent attempt to
introduce those documents as evidence. King, supra, at ! 15. In overruling Mr. King’s
second assignment of error (denial of Mr. King’s motion to strike the deposition
transcript), the court of appeals cited the COVID-19 administrative orders issued by
the Ohio Supreme Court in support of its decision. King, supra, at If 21. In overruling
Mr. King’s third assignment of error (denial of the motion to disqualify BCM’s
counsel), the court of appeals found that:
The trial court, in its ruling denying Mr. King's motion, noted that both
Mr. King and BCM's counsel had inserted unnecessary commentary into
the litigation. The trial court also directed all parties to conduct
themselves with civility and to refrain from further unnecessary
commentary. Mr. King has not demonstrated that the trial court's ruling
was unreasonable under the circumstances.
King, supra, at If 26. The court of appeals did not issue an opinion on Mr. King’s
fourth assignment of error (denial of his motion for a protective order), finding that
the opinion on the fifth assignment error (denial of his motion for summary judgment)
rendered it to be moot. King, supra, at ^f 44.
In overruling the denial of Mr. King’s motion for summary judgment, the court
of appeals made the following findings:
On appeal, Mr. King has made a very general argument that there
remains a genuine dispute of fact precluding summary judgment, while
also asserting that he is entitled to summary judgment. The only claim
that Mr. King expressly discusses is his claim related to
fraud/misrepresentation. Thus, Mr. King has not demonstrated on
appeal that the trial court erred in granting summary judgment to BCM
as to his Ohio Consumer Sales Practices Act or contract-related claim.
King, supra, at ]f 37. In assessing Mr. King’s fraud/misrepresentation allegations, the
court of appeals made the following findings:
11
BCM presented Mr. King's deposition, accompanying exhibits, and an
affidavit along with exhibits in support of its motion for summary
judgment. In his deposition, Mr. King acknowledged that he did not
expect the brakes to be new on a car that was over 10 years old with over
130,000 miles on it. Mr. King also agreed that repairing and checking
the brakes is a common part of vehicle maintenance. He also indicated
that, to his knowledge, there was nothing wrong with the brakes at the
time the car was sold to him by BCM and agreed that, at no point, did
the brakes ever fail to stop the vehicle. Mr. King testified that when he
test drove the vehicle there were no issues that he noticed and that
“everything that [he] saw worked.” The car also stopped and started and
was in operating order at the time of purchase. Further, despite the
problems with the brakes and air conditioning that required repairs, Mr.
King was able to drive the vehicle to the deposition and acknowledged
that it was capable of getting him there safely.
There is no evidence in the record that BCM knew the vehicle needed
any major repairs at the time of the sale; in fact, Mr. King did not notice
any issues with the vehicle until approximately 30 days Later and those
issues involved the brakes, a system that Mr. King himself
acknowledged commonly required maintenance.
BCM also set forth evidence that it purchased the vehicle it sold to Mr.
King from Fred Martin Motor Company, and it did not receive any
service records or inspection records from Fred Martin Motor Company.
Mr. King did not present any evidence which contradicts that fact;
instead, Mr. King has conjectured that BCM had the documents due to
its affiliation with Fred Martin Superstore. Moreover, Mr. King has not
detailed how the service records relate to any of the problems that he
later experienced. Thus, Mr. King has not shown that he was damaged
by any failure to disclose records, assuming that BCM possessed any.
Overall, Mr. King has not shown on appeal that the trial court erred in
granting summary judgment to BCM on his fraud claim and in denying
his motion for summary judgment.
King, supra, at f f 40-42.
Mr. King filed a timely appeal to the Supreme Court of Ohio arguing that (1) a
trial court cannot reasonably rely on COVID-19 administrative orders from [the
Supreme Court of Ohio] regarding the use of remotely administered oaths for
depositions when the deposition took place AFTER the Ohio Governor’s previously
12
imposed state of emergency was rescinded; and (2) that trial attorneys who engage in
name calling or other unprofessional conduct against a pro se party in a civil case
must be disqualified from further participation in the case. BCM filed a response in
opposition, and on October 10, 2023 the Supreme Court of Ohio declined jurisdiction
in the case. King v. Budget Car Mart LLC, 171 Ohio St.3d 1456, 2023-Ohio-3670, 218
N.E.3d 974 (Table) (Ohio Oct. 10, 2023).
Mr. King timely filed this petition for writ of certiorari pursuant to 28 U.S.C.
§ 1257(a) as it was filed within ninety (90) days following the Supreme Court of Ohio’s
decision declining review of the ease.
REASONS FOR GRANTING THE WRIT
THIS COURT SHOULD GRANT THE PETITION FOR WRIT OF
CERTIORARI BECAUSE IT HAS REPEATEDLY HELD THAT
PARTIES HAVE A CONSTITUTIONAL RIGHT OF ACCESS TO THE
COURTS. THAT RIGHT OF ACCESS TO THE COURTS IS
APPLICABLE EVEN DURING THE COVID-19 PANDEMIC.
A.
Under the First, Fifth, and Fourteenth Amendments to the U.S.
Constitution, the Right of the People to Petition their
Government for a Redress of Grievances is Recognized.
The First Amendment states that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the government for a redress of grievances.” U.S. Const, amend.
I (emphasis added). In addition, there is the constitutional right to due process under
13
the law recognized by the Constitution.3 The State of Ohio also has implemented a
constitutional right of access to the courts and to due process of law into its
constitution. Ohio Const, art I § 16 (1912).
This Court has held that “[t]he right of access to the courts is indeed but one
aspect of the right of petition.” California Motor Transport Co. v. Trucking Unlimited,
404 U.S. 508, 612, 92 S. Ct. 609, 30 L. Ed.2d 642 (1972), citing Johnson v. Avery, 393
U.S. 483, 485, 89 S. Ct. 747, 748, 21 L. Ed.2d 718; Ex parte Hull, 312 U.S. 546, 549,
61 S. Ct. 640, 641, 85 L. Ed. 1034.
B.
Impact of the COV1D-19 Pandemic on the Courts.
As other courts have recognized, “[t]he President of the United States has
declared a national emergency due to the spread of the COVID-19 virus, and the
Centers for Disease Control have noted that the best way to prevent illness is to
minimize person-to-person contact.” Sinceno v. Riverside Church in City of New York,
2020 U.S. Dist. LEXIS 47895, 2020 WL 1302053, at *1 (S.D.N.Y. Mar. 18, 2020). As
one court has recognized:
Attorneys and litigants all over the country are adapting to a new way
of practicing law, including conducting depositions and deposition
preparation remotely. See De Lench v. Archie, 2020 U.S. Dist. LEXIS
58049, 2020 WL 1644226, at *2 (D. Mass., Apr. 2, 2020) (“reminding the
parties that the April 5, 2021 trial date remains firm” [and] “[i]n light of
3 The Due Process is contained in the Fifth Amendment (“No person shall... be deprived of life, liberty,
or property, without due process of law”) and Section 1 of the Fourteenth Amendment (“All persons
born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws”). See U.S. Const, amend I; U.S. Const, amend. XIV § 1.
14
the current coronavirus pandemic, [ ] encouraging] the parties to avail
themselves of video technology for meetings, depositions, and other
communication and interactions arising in the discovery process”).
Grano v. Sodexo Management, Inc., 335 F.R.D. 411, 415 (2020).
Under Fed.R.Civ.P. 30(b), courts are authorized to order that depositions “be
taken by telephone other remote means.” See Usov v. Lazar, 2015 WL 5052497, at *1
(S.D.N.Y.
Aug.
25,
2015);
Graham
v.
Ocwen
Loan
Servicing,
LLC,
2016 U.S. Dist. LEXIS 186459, 2016 WL 7443288, at *1 (S.D. Fla. July 1, 2016)
(“[C]ourts enjoy wide discretion to control and place appropriate limits on discovery,
which includes authorizing depositions to be taken by remote means”). When
exercising its discretion, this Court “must ‘balance claims of prejudice and those of
hardship and conduct a careful weighing of the relevant facts.’” Usov, supra, 2015 WL
5052497, at *1, quoting RP Family, Inc. v. Commonwealth Land Title Ins. Co., 2011
U.S. Dist. LEXIS 137334, 2011 WL 6020154, at *3 (E.D.N.Y. Nov. 30, 2011).
C.
The Trial Court’s Reliance on the Ohio Supreme Court’s
Administrative Orders Unconstitutionally Denied Mr. King of his
First Amendment Right to Access to the Courts and his
Fourteenth Amendment Right to Due Process Under the Law.
The Ohio Rules of Civil Procedure govern civil procedure and operates in a
similar fashion as the Federal Rules of Civil Procedure. Rule 30 sets forth the rules
applicable to oral depositions. Previously, Section (B)(6) of Rule 30 stated that “[t]he
parties may stipulate or the court may upon motion order that a deposition be taken
by telephone or other remote means.” Former Ohio R. Civ. P. 30(B)(6) (repealed July
15
1, 2023).4 See also Fed. R. Civ. P. 30(B)(4) (“parties may stipulate or the court may
upon motion order that a deposition be taken by telephone or other remote means.”)
In this case, Mr. King’s oral deposition took place AFTER the COVID-19
emergency order of Ohio Governor Richard M. DeWine was rescinded. Thus, the trial
court violated Mr. King’s First Amendment constitutional right of access to the courts
and Mr. Kang’s constitutional right to due process under the law.
D.
Courts have Held that Despite the COVID-19 Restrictions, the
Constitutional Protections Afforded to Litigants are Still
Applicable
Despite the serious implications associated with the COVID-19 pandemic, a
litigant’s constitutional rights must be protected at all costs. An example of this is a
criminal defendant’s constitutional right to a public trial or a news organization’s
First Amendment right to open court proceedings. See Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 587, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (plurality)
(describing how the First Amendment protects forms of communication “necessary
for a democracy to survive” including public access to courtrooms); Detroit Free Press
v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002) (“Democracies die behind closed doors.”);
Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 605-06, 102
S. Ct. 2613, 73 L. Ed. 2d 248 (1982) (explaining the long history of openness to the
extent that the Court had previously been unable to find an historical example of a
i
4 On July 1, 2023, Section (B)(6) was amended to include a provision that the court may upon motion
order that the deposition be taken by telephone or with one or more participants attending remotely.
Ohio R. Civ. P. 30(B)(6).
16
closed trial and the importance of public scrutiny in “the functioning of the judicial
process and the government as a whole,” including permitting “the public to
participate in and serve as a check upon the judicial process--an essential component
in our structure of self-government”).
Studies have shown that with less proximity to a criminal defendant, the less
empathy jurors will feel when evaluating the charges against the accused. Nina J.
Nina Ginsberg, et al., Criminal Court Reopening and Public Health in the COVID-19
Era: National Association of Criminal Defense Lawyers Statement of Principles and
Report,
at
10
(June
2
2020),
available
online
at
https://nacdl.org/getattachment/56802Q01-lbb9-4edd-814d-c8d5c41346f3/criminalcourt-reopening-and-public-health-inthe-covid-19-era.pdf (last accessed Dec, 14,
2023). Current courtroom policies such as the accused wearing a mask or barriers
placed between the accused and the courtroom have the potential to further
dehumanize criminal defendants to jurors hearing their case, and may influence their
sentencing negatively. Id. at 10. Moreover, the software programs used to conduct
these remote trials have been shown to decrease the retention of information and
attention spans of those utilizing them. Id. This may inhibit a fair trial because jurors
will pay less attention to the evidence presented and resulting verdicts may not be as
informed as they would have been traditionally at an in-person jury trial. Id.
Courts have weighed a criminal defendant’s Sixth Amendment right to
confront witnesses against the necessities created by the COVID-19 pandemic. In
State v. Stefanko, 2022-Ohio-2569, 193 N.E.3d 632 (Ohio App. 9 Dist. JuL 27, 2022),
17
the defendant objected to the testimony of her then-husband (who was separately
convicted separately of aggravated murder and was serving a life sentence) via
videoconferencing. The court of appeals reversed Stefanko’s conviction for aggravated
murder.
The Second Circuit held that “[cjlosed-circuit television should not be
considered a commonplace substitute for in-court testimony by a witness. There may
well be intangible elements of the ordeal of testifying in a courtroom that are reduced
or even eliminated by remote testimony.” United States v. Gigante, 166 F.3d 75, 81
(2d Cir. 1999). See also United States v. Carter, 907 F.2d 1199, 1206 (9th Cir. 2018)
(court makes it clear that a defendant's right to physically confront an adverse
witness (whether child or adult) cannot be compromised by permitting the witness to
testify by video (whether one-way or two-way) unless {Maryland v. Craig,
497 U.S. 836, 850, 110 S. Ct 3157, 111 L. Ed.2d 666 (1990)]’s standard is satisfied.
And that standard is a stringent one; the use of a remote video procedure must be
reserved for rare cases in which it is “necessary.”); United States v. Casher, 2020 U.S.
Dist. LEXIS 106293, 2020 WL 3271767 (D. Mont. Jun. 17, 2020) (court denied motion
to quash subpoena of witness requiring in-person testimony). But see United States v.
Benson, 79 F. App’x 813, 821 (6th Cir. 2003) (district court's decision to allow an 85year-old witness to testify by video upheld);5 United States v. Rosenau, 870 F. Supp.
6 The district court found that the elderly witness was too ill to travel, had extensive health problems,
and was still recovering from a major surgery. United States v. Benson, supra, 79 F. Appx at 821.
18
2d 1109 (W.D. Wash. 2012) (court allowed a witness to testify remotely from Canada
as the witness was unable to enter the United States due to a court order; moreover,
the defendant could not travel to Canada for the witness's deposition as Canada
refused to allow the defendant to enter the country)
The courts also struggled with the issue of a criminal defendant’s Sixth
Amendment right to a speedy trial. The president of the National Association of
Criminal Defense Lawyers commented on the recent federal orders suspending court
proceedings as “completely new territory” to navigate with Sixth Amendment issues.
Jordan S. Rubin, Coronavirus Containment Collides With U.S. Constitutional Rights,
Bloomberg
Law
(March
31,
2020),
available
online
at
https://news.bloomberglaw.com/uslaw-week/coronavirus-containment-collides-withu-s-eonstitutional-rights (last accessed Dec. 14, 2023).
CONCLUSION
This Court should grant certiorari because important constitutional rights of
litigants are not suspended because of a global pandemic. While some changes to
normal operations were necessary, those changes must be balanced with the negative
impact imposed on litigants. Once the pandemic ended, normal court operations
should have resumed.
Petitioner prays this Court grant certiorari to review the decision of the Ohio
Ninth District Court of Appeals.
Dated:
ectfully Submitted,
DERRICK MARTIN KING
1445 Crestview Avenue
19
Akron, Ohio 44320-4049
Pro se Petitioner
I
20
APPENDIX A
King v. Budget Car Mart LLC
Ohio 9th District Court of Appeals (Summit County)
Case No. CA-30293
August 9, 2023 Opinion affirming decision of trial court
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.