Petition — Lamb v. Brown
Supreme Court brief1979
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Drewie Oats, |, §,
EILED
+ AUG 10 1979
Supreme Court of the United States
October Term, 1979
No. V9 -2 1 Yy
RUSSELL MORTON BROWN,
Respondent,
vs.
EDWARD O. LAMB, et al.,
Petitioners.
PETITION FOR WRIT OF CERTIORARI
To the Supreme Court of Ohio and the Ohio
Court of Appeals for the Sixth District
RosBert B. GOSLINE
Davip W. WIcKLUND
SHUMAKER, Loop & KENDRICK
811 Madison Avenue-Suite 500
Toledo, Ohio 43624
(419) 241-4201
Attorneys for Petitioners
Rosert M. Hopcess
600 Edward Lamb Building
Toledo, Ohio 43604
Of Counsel for Petitioners
THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647
TABLE OF CONTENTS
Opinions Below
Jurisdiction
SOOO SESS S ESE S ESO SEH ESS SSOSSESESESES ES OSES SES EEE EE SESE SESE Seseeeseeeeoe
SOPOT S SOS SEE SESE SESES SES ESESESSS ESE SESE ESSESESSSESES SSS ESSOSE SSE SEOEE EES ESEEES
The Constitutional Provisions and Statutes Involved ....
Statement of the Case
Argument
SORE REESE EEE SESE EE ES ESE EEE EEEEES EEE EERE EEE EEee
PPPS SOOO SESS SESS OSES ESOS OSSEE SES SEESESSESESSSEOEOSS CEES ESESES SESE SEE SSESESEESS
Issue No. 1:
The constitutional right of full faith and credit
entitles a final judgment of the United States
District Court for the District of Columbia,
which precludes further litigation on the same
claim between the same parties in that jurisdic-
tion, to the same fully preclusive effect in the
courts of Ohio and every state of the United
BNI hilt Sede ae naadan
Issue No. 2:
Where the Ohio trial court finds no genuine
issue as to any material fact but still denies full
faith and credit to a final, fully-litigated Dis-
trict of Columbia judgment in favor of petition-
ers and orders retrial of the same cause of ac-
tion, substantial federal constitutional rights are
abridged and retrial would deny and defeat peti-
tioners’ right of full faith and credit to the Dis-
trict of Columbia judgment
FP RE PERRET ms BOOM Ha LOM
Conclusion
PPOMPODOSSSSSOSESSSSSSOSSHSSSSSSS COSHSSSooCEeToCoNCSCenOLoseCenesooEeeeoececcesce
II
Appendix:
Order of the Supreme Court of Ohio Overruling
Motion to Certify (May 18, 1979) 0.0... Al
Order of the Supreme Court of Ohio Dismissing Ap-
a Bes ee! OD EE SMEG NY AUOe A2
Decision and Journal Entry of the Court of Appeals
of Lucas County, Ohio Dismissing Appeal (Jan-
eas Se ation cima a! A3
Decision and Journal Entry of the Court of Ap-
peals of Lucas County, Ohio Denying Reconsid-
eration (February 2, 1979) ..........-....-cccccscccsssesess A4
Decision and Journal Entry of the Court of Appeals
of Lucas County, Ohio Denying Motion to Cer-
tify for Conflict (February 2, 1979) _.00..00......... A5
Opinion of the Court of Common Pleas (August
Eee a AEGON MONER EN Wik OR ee a A6
Decision on Motion of the Court of Common Pleas
Comper 1G, NOTE) anc se ecosctscece A18
Journal Entry of the Court of Common Pleas Deny-
ing Motion for Summary Judgment (October 6,
ROUTED saticaiapiicanianiantaeitcen
Journal Entry of the Court of Common Pleas Deny-
ing Separate Trial on Full Faith and Credit De-
Sumee Cooper BS, 1076) oe. A22
Certification of Final Judgment of U. S. District
Court for the District of Columbia
Final Judgment of the U. S. District Court for the
District of Columbia (Dec2mber 22, 1967)
Docket Entries of U. S. District Court for District
of Columbia (Civil Action No. 1292-63) 0... A28
PEE
III
TABLE OF AUTHORITIES
Cases
Angel v. Bullington (1947), 330 U.S. 183 (Reed, J.,
RR NRE IY, TEE SE, Iie eR eee nO 12
Brown v. Lamb, 414 F.2d 1210 (D.C. Cir. 1969), cert.
GI Se St Pe CUE ci tersenicsctestnceeesncscatnsrnccoins 8
Brown v. Lamb, 36 Ohio St. 2d 8 (1973) -2.2..2......---.--e--0--- 9
Czech Catholic Union v. East End Building & Loan
Ass’n, 140 Ohio St. 465 (1942) 2. eee eeeteeeeeeeeeee 17
Daar v. Yellow Cab Co., 67 Cal. 2d 695, 433 P.2d 732
I ac cesmsepcstiginia iret nasiewsibtcihcn chub bnicnhininesiicittniivinienieinims 17
Embry v. Palmer, 107 U.S. 3 (1882) 22.2.2... eeeeeeeeeseeeeeees 12
Estin v. Estin, 334 U.S. 541 (1948) 2c eeceeeeeeee 13
GTE Attomatic Electric v. ARC Industries, 47 Ohio
Se ne Te IND titictestiniAlpaienin encisinsneneiescaniidilliabibbiiedicalisétons 18
Hampton v. McConnell, 16 U.S. 110, 3 Wheaton 232
i eater abate cecieneaeeks reer) 14
Hancock National Bank v. Farnum, 176 U.S. 640 (1900) 14
Higginson v. Schoeneman, 190 F.2d 32 (D.C. Cir. 1951) 13
Johnson v. Muelberger, 340 U.S. 581 (1951) -.........202..... 13
Kowacs v. Brewer, 356 U.S. 604 (1958) (Frankfurter,
ig I aiilaniedecitialnsssanrciestcnsestiatrhdeniinsdetnnatecasalipssindinatoi 16,17
Lamb Enterprises, Inc. et al. v. Honorable George N.
Kiroff, et al., 399 F. Supp. 409 (N.D. Ohio 1975) .... 9
Lamb Enterprises Inc. v. Kiroff, 549 F.2d 1052 (6th Cir.
TE Ot ccicsbicahensnthslonisen sepsis tilalaadiaiigueniemeseiaibadeidasinibincaainiaes 16, 17
Lumbermen’s Alliance v. American Excelsior Corp., 33
Sis ME TE MUIIIOD . ecisinrenseciensihicensnensccaveseaiitlainisessoninn 7
Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943)
IV
Mills v. Duryee, 11 U.S. 302, 7 Cranch 481 (1813) ........ lt
Morris v. Jones, Dir. of Ins., 329 U.S. 545 (1947) ............ 13
New York ex rel. Halvey v. Halvey, 330 U.S. 610 (1947)
(Frankfurter, J., concurring) .......................s..cscssccsoso-- 16
Pauling v. McNamara, 331 F.2d 796 (D.C. Cir. 1963) .... 13
Roemisch v. Mutual of Omaha Ins. Co. (1974), 39 Ohio
SO. BB TO sa sihisernsinenenscsbetininiey itll teased 17
Semler v. Psychiatric Institute, 575 F.2d 922 (D.C.
COe. BORG . akcctnsnsensecninninaladeaancaeen 12,14
State v. Eberhardt, 56 Ohio App. 2d 193 (1978) ............ 17
Symons v. Eichelberger, 110 Ohio St. 224 (1924) ............ 12
Titus v. Wallick, 309 U.S. 282 (1939) 0... eeeeeeeeeeeee 13, 14
Westgate-Sun Harbor Co. v. Watson, 206 F.2d 458 (D.C.
Ce TD assis sssscrsionnisplnginl a latina tai demeiiaiatiie ema 13
Woods v. Cannaday, 158 F.2d 184 (D.C. Cir. 1946) ........ 13
Constitutional Provisions, Statutes and Rules
Ohio Rev. Code Ann., §2505.02 (PaGEs) 2.000... 17,18
Cie Baga. Ti BID inssctnnsisnssansmuupanenenn oe
Ue. Comet, AR. GH, BRB Sascccienscencteed 4,5, 11, 12,14
US. Const. AM. FE, GA. © icin niotecesaaoe 5, 11, 12
WO UK. GEG nccinteincinssnpieneetionoasaadl 4,5, 10,11, 12,14
Supreme Court of the United States
October Term, 1979
NIRA ER WSR
RUSSELL MORTON BROWN,
Respondent,
vs.
EDWARD O. LAMB, et al.,
Petitioners.
PETITION FOR WRIT OF CERTIORARI
To the Supreme Court of Ohio and the Ohio
Court of Appeals for the Sixth District
Petitioners pray that a Writ of Certiorari issue to
review:
(1) The Judgment of the Supreme Court of Ohio en-
tered in the above-captioned case on May 18, 1979, wherein
it dismissed Petitioners’ appeal, stating that there was no
substantial constitutional question involved, and the ac-
companying Order which overruled Petitioners’ Motion for
an Order to the Ohio Court of Appeals to certify its record;
(2) The Judgment of the Ohio Court of Appeals of
Lucas County, Ohio, wherein that Court dismissed Peti-
tioners’ appeal from the Court of Common Pleas of Lucas
County, Ohio, and
2
(3) The denial by that Common Pleas Court, by its
Orders of October 6 and 25, 1978 (A20 and A25), of
Full Faith and Credit to the final judgment n.o.v. in
favor of Petitioners entered by the United States District
Court for the District of Columbia on December 22, 1967.
The ground for this Petition is that the Common Pleas
Court of Lucas County, Ohio has incorrectly decided an
important question of federal constitutional law, which
has not been and can only be settled by this Supreme
Court, and the Ohio Court of Appeals and the Ohio Su-
preme Court have both unjustifiably refused to review
that decision.
OPINIONS BELOW
Neither the Supreme Court of Ohio nor the Ohio Court
of Appeals wrote an opinion in this case. Each dismissed
Petitioners’ appeal. These judgments of dismissal are re-
printed in the Appendix to this Petition at pages Al, A2
and A3, respectively.
The two opinions of the Common Pleas Court of Lucas
County, Ohio are unreported. They are printed in the
Appendix to this Petition at pages A6 and A18.
The Common Pleas Court Journal Entries denying
Petitioners’ Motion for Summary Judgment and their right
to Full Faith and Credit were entered October 6 and
25, 1978 and are reprinted in the Appendix at pages A20
and A22.
JURISDICTION
Jurisdiction of this Supreme Court to hear this appeal
is based on 28 U.S.C. §1257(3), because the Ohio courts
3
have denied Petitioners’ constitutional and statutory right
to full faith and credit for a prior out-of-state judgment
in favor of the Petitioners on exactly the same claim
for relief and cause of action asserted in the present case.
In Ohio, this judgment is pleaded as a defense, but
the Ohio courts have denied it “the same full faith and
credit” as it has by the law and usage of the jurisdiction
from which it was taken, i.e., the United States District
Court for the District of Columbia. In other words, the
Ohio courts have refused to recognize that it is the effect
of the judgment of the United States District Court for
the District of Columbia, and not the grounds upon which
that judgment was based, that must be given full faith
and credit in the State of Ohio.
The judgments and decrees sought to be reviewed
here are:
1. The judgments of the Ohio Supreme Court, dis-
missing Petitioners’ appeal on the basis that no substantial
constitutional question exists in this case, and denying
Petitioners’ motion for an Order to the Ohio Court of
Appeals to certify its record, which were entered May
18, 1979 (Al and A2, respectively);
2. The judgment of the Court of Appeals of Lucas
County, Ohio, dismissing Petitioners’ appeal from the Court
of Common Pleas of Lucas County, Ohio, which was en-
tered on January 11, 1979 (A3) and its denial of Peti-
tioners’ application for reconsideration which was entered
on February 2, 1979 (A4); and
3. The Journal Entries of the Court of Common Pleas
of Lucas County, Ohio, denying Petitioners’ Motion for
Summary Judgment and their right to full faith and credit,
which were entered on October 6 and October 25, 1978
(A20 and A22).
QUESTION PRESENTED
Respondent filed identical suits against Petitioners,
Lamb, et al., in Ohio in 1959 and in the District of Columbia
in 1963. He dropped the Ohio case and prosecuted the
District of Columbia case, and on December 22, 1967 after
a full trial, judgment n.o.v. for Petitioners and against
Respondent was entered by the District of Columbia
court! (A25).
Nevertheless, Respondent resumed prosecution of the
Ohio case, and the Ohio couris have refused full faith
and credit to the District of Columbia judgment.
The questions presented for review by this Petition,
stated affirmatively are:
1. The constitutional right of full faith and credit
entitles a final judgment of the United States District Court
for the District of Columbia, which precludes further litiga-
tion on the same claim between the same parties in that
jurisdiction, to the same fully preclusive effect in the courts
of every state of the United States. Magnolia Petroleum
Co. v. Hunt, 320 U.S. 430 (1943).
2. Where the Ohio Trial Court finds no genuine issue
as to any material fact but still denies full faith and credit
to a final, fully-litigated District of Columbia judgment in
favor of Petitioners and orders retrial of the same cause
of action, substantial federal constitutional rights are
abridged, and retrial would deny and defeat Petitioners’
right of full faith and credit to the District of Columbia
Judgment. U.S. Const., Art. IV, Sec. 1, 28 U.S.C. §1738.
1. Affirmed, 414 F.2d 1210 (D.C. Cir. 1969), cert. denied 397
U.S. 907 (1970).
THE CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
U.S. Const., Art. IV, Sec. 1 [Full Faith and Credit}.
Full Faith and Credit shall be given in each State
to the public Acts, Records, and Judicial Proceedings
of every other State. And the Congress may by gen-
eral Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the
Effect thereof.
U.S. Const., Art. VI, Cl. 2 [Supreme Law of the
Land].
This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof; and
all Treaties made, or which shall be made, under the ~
Authority of the United States, shall be the Supreme
Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
28 U.S.C. § 1738 [Full Faith and Credit].
The records and judicial proceedings of any court
of any such State, Territory or Possession, or copies
thereof, shall be proved or admitted in other courts
within the United States and its Territories and Pos-
sessions by the attestation of the clerk and seal of
the court annexed, if a seal exists, together with a
certificate of a judge of the court that the said attesta-
tion is in proper form.
Such Acts, records and judicial proceedings or
copies thereof, so authenticated, shall have the same
full faith and credit in every court within the United
6
States and its Territories and Possessions as they have
by law or usage in the courts of such State, Territory
or Possession from which they are taken (emphasis
added).
STATEMENT OF THE CASE
This is a twenty-year-old case in which the Ohio
courts are attempting to force the re-trial of a District of
Columbia case, which was fully tried in 1967 and finalized
by appeals during the following two and one-half years.
The final result was judgment for the defendants [Peti-
tioners].
In this process, the Ohio courts have evaded and
flouted the Full Faith and Credit requirements of the
United States Constitution.
Respondent, Russell Morton Brown, filed this suit in
Ohio in 1959. Thereafter, he filed the same case in the
District of Columbia on May 21, 1963. After trial and
verdict for Respondent in the District of Columbia, judg-
ment n.o.v. for Petitioners was entered December 22, 1967.
It was affirmed on appeal. During the period of almost
seven years in which the District of Columbia case was
pending or on appeal, Respondent took no action in the
Ohio case.
Respondent’s Amended Complaint renewed the Ohio
case on July 3, 1974. Petitioners answered asserting con-
stitutional full faith and credit for the District of Columbia
judgment.
Subsequently, Petitioners filed a motion for summary
judgment based on this full faith and credit defense, which
was supported by documentary and other evidence. The
Trial Court found “no genuine issue as to any material
meee Ae ee ne) 2 rere
7
fact” relevant to this defense, but it denied the motion for
summary judgment and ordered trial on all other issues
(A20 and A22).
The Ohio Court of Appeals refused to review these
orders and dismissed the appeal, even though they adju-
dicated substantial constitutional rights of Petitioners...
This dismissal was entered January 11, 1979 and reconsid-
eration was denied February 2, 1979 (A3 and A4).
The Supreme Court of Ohio dismissed Petitioners’
Appeal on constitutional issues on May 18, 1979, stating
that no substantial constitutional question exists. On the
same date, it overruled Petitioners’ Motion for an order
directing the Court of Appeals to certify its records (Al
and A2).
The Trial Court failed properly to give the District
of Columbia judgment the same preclusive effect in Ohio
as it has in the court where rendered and to distinguish
between the constitutional mandate of full faith and credit
and common law doctrine of res judicata. It excused
denial of fu : faith and credit by concluding, erroneously,
that an earlier Ohio Supreme Court decision in this case
(1973, 36 Ohio St. 2d 8) held that “the Ohio courts do
not have to give the District of Columbia judgment its
‘local effect’ * * *.”? (A17).
The critical difference is that full faith and credit is
a constitutional right which requires that a final judgment
must be given the same preclusive effect nationwide as it
has where rendered, without regard to the grounds on
2. In this, the Trial Court overlooked the Ohio Supreme
Court footnote reference to the Ohio Appellate Rule 12(A) which
precludes the Ohio Supreme Court from determining Assign-
ments of Error not passed bv the Court of Appeals. See Lum-
rene Alliance v. American Excelsior Corp., 38 Ohio St. 2d 37,
40 (1973).
which it was rendered, whereas res judicata is purely a
rule of judicial administration.
This important and fundamental distinction has never
been drawn, and it should be settled by this Court.
The District of Columbia Case. On May 21, 1963,
Russell Morton Brown filed suit in the United States
District Court for the District of Columbia alleging that
attorney’s fees were due him from Edward Lamb and
Dispatch, Inc. (corporate predecessor to Lamb Enterprises,
Inc.). He vigorously and successfully opposed all efforts
of Lamb and Dispatch, Inc. to avoid the jurisdiction of that
Court. Motions to quash service and motions for summary
judgment were filed by Lamb and denied by the Court.
For seven years Brown fully prosecuted his claim in that
jurisdiction. After eleven days of trial, October 16 to No-
vember 1, 1967, verdicts were returned and judgment
entered against defendants for $400,000. On December 22,
1967 this was vacated, and the trial judge entered judgment
n.o.v. for Lamb and Dispatch, Inc. on the ground that
Brown presented “no evidence * * * requisite for taking”
his “action out of the statute of limitations” (A26).
This was affirmed by the United States Court of Appeals.
Brown v. Lamb, 414 F.2d 1210 (D.C. Cir. 1969). And this
Court denied certiorari. 397 U.S. 907 (1970).
In a final effort and after denial of certiorari, Brown
filed a motion in the Court of Appeals for leave to file
a petition for rehearing en banc. This was denied
March 30, 1970, and further litigation of his claim in that
case was fully precluded.
The Ohio Case. During the twenty years since its
April 28, 1959 filing, the Ohio case has been on the inactive
docket for long periods of time. Originally, a motion di-
rected to the Complaint resulted in a dismissal, appeal
9
and reversal. Finally, on March 24, 1969, tiis case was
dismissed for want of prosecution.
Brown took no action to challenge this dismissal until
after the District of Columbia Court of Appeals turned
down his request for rehearing. Then he filed a motion
to vacate. The dismissal was vacated, then reinstated.
The reinstatement was appealed and affirmed by the Ohio
Court of Appeals but reversed by the Ohio Supreme Court
in Brown v. Lamb, 36 Ohio St. 2d 8 (1973).
In 1974, Respondent filed an Amended Complaint, and
for the first time, this case was in a posture where
Petitioners were to file an answer. This was filed Octo-
ber 4, 1974, and it stated the defense of full faith and
credit for the District of Columbia judgment.
In a collateral lawsuit, the United States District
Court for the Northern District of Ohio, Western Division
(Toledo, Ohio) enjoined prosecution of the Ohio case,
Lamb Enterprises, Inc. et al. v. Honorable George N. Kiroff,
et al., 399 F. Supp. 409 (N.D. Ohio 1975) on the ground
that the District of Columbia judgment was entitled to
full faith and credit. This injunction was vacated by the
United States Court of Appeals for the Sixth Circuit, 549
F.2d 1052 (6th Cir. 1977), and certiorari was denied, 431
U.S. 968 (1977). The Court of Appeals did not disagree
with Judge Walinski’s full faith and credit analysis but
held only that it was not “fa proper case for federal court
injunction.” 549 F.2d at 1062.
The current sequence of decisions commenced with
Petitioners’ September 6, 1977 Motion for Summary Judg-
ment based on their right of full faith and credit to the
District of Columbia Judgment. This was supported by
affidavit and exhibits fully documenting the District of
Columbia litigation, the final judgment, appeal and affir-
mance. Affidavit Exhibit I is the triple-certified copy of
10
the Final Judgment relied upon and is authenticated and
qualified for full faith and credit recognition under 28
U.S.C. §1738 (A25).
The Trial Court opinion denying this motion for sum-
mary jv‘gment was announced August 25, 1978 '(A6).
Order on this decision (A20) was entered October 6,
1978, wherein the Court found “no genuine issue as to
any material fact relevant to defendants’” assertion of
Full Faith and Credit, but the motion was denied on the
ground of assumed law of the case from the Ohio Su-
preme Court’s prior opinion, 36 Ohio St. 2d 8 (A17).
Subsequently, on October 25, 1978, the Trial Court
ordered that there be no further trial on the Full Faith
and Credit question and that “this case proceed to trial
on all other issues” (A23).
Petitioners’ Appeal to the Ohio Court of Appeals was
dismissed without reason and reconsideration was denied
(A3, A4). No opinion was written nor reason given.
The Ohio Supreme Court dismissed Petitioners’ Appeal
and denied their Motion to Certify, also without opinion
or statement of reason (Al, A2).
Each of these Ohio courts has summarily denied Peti-
tioners’ right of full faith and credit to the District of
Columbia Judgment.
11
ARGUMENT
ISSUE NO. 1
The constitutional right of full faith and credit
entitles a final judgment of the United States District
Court for the District of Columbia, which precludes
further litigation on the same claim between the same
parties in that jurisdiction, to the same fully pre-
clusive effect in the courts of Ohio and every state of
the United States.
Full Faith and Credit. In this case, the Ohio Courts
have ignored the federal mandate of Full Faith and Credit.
Beyond question, this appeal involves a basic and substan-
tial federal constitutional question. It is of critical impor-
tance to the Petitioners and of great importance to the
law of relationships between the states of the United
States.
On December 22, 1967, the District of Columbia Dis-
trict Court granted final judgment in favor of Petitioners
and against Respondent. The Ohio courts have refused
Full Faith and Credit recognition to this final, fully-
litigated judgment.
Money judgments for plaintiffs, divorce judgments and
many other judgments have routinely been granted full
faith and credit and enforced throughout the United States.
A judgment of non-liability of defendants [Petitioners]
is entitled in the State of Ohio to that same constitutional
force and recognition under the law of the land. US.
Const., Art. IV, Sec. 1 (Full Faith and Credit), U.S. Const.,
Art. VI, Cl. 2. (Supreme Law of the Land), and 28 U.S.C.
§1738 (the same effect as where rendered).
12
Simple quotation from Constitution and Statute makes
this clear. The U. S. Constitution guarantees that “Full
Faith and Credit shall be given in each State to the”
judgments “of every other State.” And Congress may
“prescribe the Manner in which such” judgments “shall
be proved, and the Effect thereof.” U.S. Const., Art. IV,
Sec. 1. And Congress has done so.
When properly certified, a copy of a judgment “so
authenticated, shall have the same full faith and credit
in every court within the United States * * * as they have
by law or usage in the courts of such State, * * * from
which they are taken.” 28 U.S.C. §1738 (emphasis added) .®
“This * * * shall be the Supreme Law of the Land;
and the Judges in every State shall be bound thereby,
ooo” US. Const., Art. VI, Cl. 2.
With this specific constitutional support, Full Faith
and Credit is substantively different from res judicata,
which is neither constitutional nor statutory but “purely
a rule of judicial administration.” Angel v. Bullington,
(1947), 330 U.S. 183, 202 (Reed, J., dissenting).
It is the effect where rendered which is determinative,
not the judgmental grounds. Semler v. Psychiatric Insti-
tute, 575 F.2d 922, 927 (D.C. Cir. 1978).
Full Faith and Credit has been held by this Court,
to be “a nationally unifying force” which makes each state
“an integral part of a single nation, in which rights judi-
cially established in any part are given nationwide appli-
cation.” Its clear purpose is to “establish throughout the
federal system the salutary principle of the common law
3. A District of Columbia judgment, qualified under this
statute, is entitled to Full Faith and Credit. Embry v. Palmer,
107 U.S. 3, 9-10 (1882); Symons v. Eichelberger, 110 Ohio St.
224, 234 (1924).
13
that a litigation once pursued to judgment shall be as
conclusive of the rights of the parties in every other court
as in that where the judgment was rendered * * *.”
Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (em-
phasis added).
“It substituted a command for the earlier principles
of comity and thus basically altered the status of the
States as independent sovereigns. * * * It ordered sub-
mission by one State even to hostile policies reflected in
the judgment of another State, because the practical op-
eration of the federal system, which the Constitution
designed, demanded it.” Estin v. Estin, 334 U.S. 541, 546
(1948) (emphasis added).
And “the federal purpose of the clause makes this
[United States Supreme] court * * * the ‘final arbiter’ ”
of its application. Johnson v. Muelberger, 340 U.S. 581,
585 (1951); Morris v. Jones, Dir. of Ins., 329 U.S. 545,
551-52 (1947).
Local Effect. As emphasized in Titus v. Wallick, 309
U.S. 282, 291 (1939), “It is the judgment and not the
cause of action which gave rise to it for which credit is
claimed * * *.” (emphasis added).
The effect of this District of Columbia judgment was
to foreclose forever, in the District of Columbia, any fur-
ther legal action or proceedings by Brown against the
Petitioners in that jurisdiction. If it were otherwise,
Brown would still be litigating there.
This same effect must be given that judgment in
“every other state” and “in every court within the United
4. Pauling v. McNamara, 331 F.2d 796 (D.C. Cir. 1963);
Westgate-Sun Harbor Co. v. Watson, 206 F.2d 458 (D.C. Cir. 1953);
Higginson v. Schoeneman, 190 F.2d 32 (D.C. Cir. 1951); Woods v.
Cannaday, 158 F.2d 184 (D.C. Cir. 1946).
14
States.” U.S. Const., Art. IV, Sec. 1; 28 U.S.C. §1738;
see Mills v. Duryee, 11 U.S. 302, 303-04, 7 Cranch 481,
483-84 (1813); Hampton v. McConnell, 16 U.S. 110, 111,
3 Wheaton 232 (1818); Hancock National Bank v. Farnum,
176 U.S. 640, 643 (1900); Titus v. Wallick, supra, 291-92;
Semler v. Psychiatric Institute, 575 F.2d 927 (D.C. Cir.
1978).
It is this local effect of that judgment which Ohio
courts are required, but have refused, to recognize and
enforce.
“In other words, the local effect must be recognized
everywhere through the United States.” Hancock National
Bank v. Farnum, supra at 643.
Speaking more broadly, Chief Justice Marshall said in
Hampton v. McConnell, supra:
“* * * This is precisely the same case as that of Mills
v. Duryee; * * *. The doctrine there held was, that
the judgment of a state court should have the same
credit, validity and effect, in every other court in the
United States, which it had in the state where it was
pronounced, * * *.” 16 U.S. at 111 (emphasis added).
This admonition was repeated for Ohio courts in Titus
v. Wallick, supra, at 291-92. More recently, it was defined
in Semler v. Psychiatric Institute, supra:
“Thus, under the Full Faith and Credit Clause, the
preclusive effect of a judgment must be determined
by the law of the state where it was rendered.” 575
F.2d at 927 (emphasis in original).
Petitioners’ judgment (Exhibit I, A24-A27) has
since 1970, precluded further legal proceedings on this
15
cause of action in the District of Columbia. By the United
States Constitution, Petitioners are entitled, under the fed-
eral system of national government, to have this same local
District of Columbia effect given to that judgment in the
Ohio courts.
The Trial Court’s denial of summary judgment, after
finding no genuine issue of fact, and the Ohio Court of
Appeals’ and Ohio Supreme Court’s dismissal orders
clearly violate this constitutional right and were erro-
neous. As final arbiter, this Court should correct that.
ISSUE NO. 2
Where the Ohio trial court finds no genuine issue
as to any material fact but still denies full faith and
credit to a final, fully-litigated District of Columbia
judgment in favor of Petitioners and orders retrial
of the same cause of action, substantial federal con-
stitutional rights are abridged and retrial would deny
and defeat Petitioners’ right of full faith and credit
to the District of Columbia judgment.
In the District of Columbia case, preliminary motions
and discovery consumed four years. Petitioners’ (then
defendants) motion to quash service of summons were
opposed by Respondent and denied. Petitioners’ Motions
for Summary Judgment were denied. Petitioners’ Motion
to Stay Proceeding was not granted.
The jury trial commenced October 16, 1967 and con-
tinued to November 1, 1967. Verdict in a total amount of
$400,000 in favor of Respondent was returned by the jury.
However, this was soon vacated, and judgment n.o.v. was
entered for Petitioners. On appeal this was affirmed® and
Petition for Certiorari was denied by this Court.° Respon-
5. 414 F.2d 1210 (D.C. Cir. 1969).
6. 397 U.S. 907 (1970).
16
dent’s last challenge to the n.o.v. judgment was denied
March 30, 1970, when the D. C. Circuit Court of Appeals
denied his motion for leave to file a Petition for Rehearing
en banc.
Without qualification, respondent fully litigated the
District of Columbia case. He pursued it to final preclu-
sive judgment in the court of his selection.
In this type of situation, avoidance of relitigation is
the “essence of full faith and credit.” Lamb Enterprises
Inc. v. Kiroff, 549 F.2d 1052, 1057 (6th Cir. 1977); see
Kovacs v. Brewer, 356 U.S. 604, 611 (1958) (Frankfurter,
J., dissenting); New York ex rel. Halvey v. Halvey, 330
U.S. 610, 616 (1947) (Frankfurter, J., concurring); Magno-
lia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943). Ina
federal system of government, this is necessary, and this
Court and its Justices have acknowledged as much.
The “clear purpose of the full faith and credit clause”
was “to establish throughout the federal system * * * that
a litigation once pursued to judgment shall be as conclusive
of the rights of the parties in every other court as in that
where the judgment was rendered * * *.” 320 U.S. at 439.
The “policy” of the full faith and credit clause “was
the nationwide restriction of litigiousness, to the extent
that States, autonomous for certain purposes, should not
be exploited to permit repetitive litigation. In substance,
the Framers deemed it against the national welfare for a
controversy that was truly litigated in one State to be
relitigated in another.” New York ex rel. Halvey v.
Halvey, supra at 616 (Frankfurter, J., concurring).
“It was the purpose of the Full Faith and Credit
Clause to preclude dissatisfied litigants from taking ad-
vantage of the federal character of the Nation by relit-
igating in one State issues that had been duly decided in
17
another. The clause was thus designed to promote a major
policy of the law: that there be certainty and finality
and an end to harassing litigation.” Kovacs v. Brewer,
supra at 611 (Frankfurter, J., dissenting).
Even in vacating the injunction which had prohibited
prosecution of this Ohio court case, the Sixth Circuit Court
of Appeals still acknowledged “the essence of full faith
and credit that appellees avoid having to ‘relitigate’ the
District of Columbia /.ction in the courts of Ohio.” 549
F.2d at 1057-58.
Consequently, when the Ohio Trial Court denied Peti-
tioners’ Motion for Summary Judgment and ordered that
this case proceed to trie], it was a violation of Petitioners’
right to Full Faith and Credit to the District of Columbia
judgment, and it prevented a judgment in favor of Peti-
tioners. Proper recognition would have required summary
judgment in their favor.
Here again the Ohio courts have not only brushed
aside these federal constitutional tenets but, in doing so,
have erroneously applied the Ohio Appeal statute. Ohio
Rev. Code Ann., Sec. 2505.02 (Pacses).? In Roemisch v.
Mutual of Omaha Ins. Co. (1974), 39 Ohio St. 2d 119,
122-23,° the court stated:
“«* * * We must assay the total substance of the
order. It determines the legal insufficiency of the
7. “An order affecting a substantial right in an action which
in effect determines the action and prevents a judgment, an order
affecting a substantial right made in a special proceeding or upon
a summary application in an action after judgment, or an order
vacating or setting aside a judgment and ordering a new trial is
a final order which may be reviewed, affirmed, modified, or
reversed, with or without retrial. * * *.” (emphasis added).
8. Quoting with approval from Daar v. Yellow Cab Co., 67
Cal. 2d 695, 433 P.2d 732 (1967).
See also Czech Catholic Union v. East End Building & Loan
Assn., 140 Ohio St. 465, 469 (1942); State v. Eberhardt, 56 Ohio
App. 2d 193, 197 (1978).
18
complaint as a class suit and preserves for the plain-
tiff alone his cause of action for damages. In “its
legal effect” * * * the order is tantamount to a dis-
missal of the action as to all members of the class
other than plaintiff. * * * it has virtually demolished
the action as a class action. If the propriety of such
disposition could not now be reviewed, it can never
be reviewed.’” 39 Ohio St. 2d at 123.
. Paraphrased to the present case this is significant.
The Trial Court’s orders denying summary judgment and
compelling trial on all other issues are tantamount to a
denial of Petitioners’ constitutional right to full faith and
credit. “If the propriety of such disposition could not
now be reviewed, it can never be reviewed,” because de-
fendants’ constitutional right to be free from re-trial of
the same case will have been lost before review is per-
mitted.
In effect, respondent has been granted a new trial. The
orders appealed from destroy, demolish, disregard and
really set aside and vacate the District of Columbia final
judgment in favor of the petitioners and grant respondent
a new trial which was otherwise completely barred by
that judgment. As such, Ohio appellate courts should
review it, because that is a final order. Ohio Rev. Code
Ann., Sec. 2505.02 (Paces); GTE Automatic Electric v.
ARC Industries, 47 Ohio St. 2d 146, 149-50 (1976).
In their determination to compel relitigation and re-
trial, the Ohio Appellate and Supreme Court have refused
this obvious application of final order definition.
19
CONCLUSION
The Trial Court realized that by “forcing [Petitioners]
to trial without an immediate appeal on the question of
full faith and credit, [Petitioners] will, in effect be ‘vexed
twice’” by respondent’s claim and trial (A119). That
Court is forcing the trial, and the Appellate and Supreme
Courts are denying review on appeal. This adds up to
a complete and certain denial by the Ohio courts of Peti-
tioners’ constitutional right of Full Faith and Credit to
the Final Judgment of the District of Columbia Court.
The Judgments and Decrees below should be reviewed
by this Court as final arbiter of the Full Faith and Credit
issue, and by Final Judgment here, Petitioners should be
relieved of the State Courts’ compulsion to relitigate a
Judgment already final in the District of Columbia.
Respectfully submitted,
SHUMAKER, Loop & KENDRICK
RoBErT B. GOSLINE
Davip W. WIcKLUND
811 Madison Avenue-Suite 500
Toledo, Ohio 43624
(419) 241-4201
Attorneys for Petitioners
RoserT M. HODGESS
600 Edward Lamb Building
Toledo, Ohio 43604
Of Counsel for Petitioners
Al
APPENDIX
ORDER OF THE SUPREME COURT OF OHIO
OVERRULING MOTION TO CERTIFY
(Dated May 18, 1979)
No. 79-405
THE SUPREME COURT OF THE STATE OF OHIO
THE STATE oF Onto, Crry or COLUMBUS.
RUSSELL MORTON BROWN,
Appellee,
v.
EDWARD O. LAMB, et al.,
Appellants.
MOTION FOR AN ORDER DIRECTING THE COURT
OF APPEALS FOR LUCAS COUNTY TO
CERTIFY ITS RECORD
It is ordered by the Court that this motion is over-
ruled.
COSTS:
Motion Fee, $20.00, paid by Shumaker, Loop and
Kendrick
I, Thomas L. Startzman, Clerk of the Supreme Court
of Ohio, certify that the foregoing entry was correctly
copied from the Journal of this Court.
A2
ORDER OF THE SUPREME COURT OF OHIO
DISMISSING APPEAL
(Dated May 18, 1979)
No. 79-405
THE SUPREME COURT OF THE STATE OF OHIO
THE STATE OF Onto, Crry or COLUMBUS.
RUSSELL MORTON BROWN,
Appellee,
v.
EDWARD O. LAMB, et al.,
Appellants.
APPEAL FROM THE COURT OF APPEALS
FOR LUCAS COUNTY
This cause, here on appeal as of right from the Court
of Appeals for Lucas County was heard in the manner
prescribed by law and upon motion of the appellee to
dismiss such appeal.
On consideration thereof, such appeal is dismissed for
the reason that no substantial constitutional question exists
herein.
It is further ordered that a copy of this entry be
certified to the Clerk of the Court of Appeals for Lucas
County for entry.
I, Thomas L. Startzman, Clerk of the Supreme Court
of Ohio, certify that the foregoing entry was correctly
copied from the Journal of this Court.
A3
DECISION AND JOURNAL ENTRY OF THE COURT
OF APPEALS OF LUCAS COUNTY, OHIO DIS-
MISSING APPEAL
_ (Dated January 11, 1979)
No. L-78-266
IN THE COURT OF APPEALS OF LUCAS COUNTY
RUSSELL MORTON BROWN,
Appellee, Cross-Appellant,
Vv.
EDWARD O. LAMB, et al.,
Appellants.
DECISION AND JOURNAL ENTRY
Appellee’s motion to dismiss appeal granted. Appeal
is dismissed at appellants’ cost.
Cross-appeal of plaintiff-appellee is sua sponte, like-
wise, dismissed. Cause remanded to the Lucas County
Common Pleas Court for execution for costs.
A certified copy of this entry shall constitute the man-
date pursuant to Rule 27 of the Rules of Appellate Pro-
cedure.
Ten (10) days from the date hereof this document
shall constitute the journal entry of judgment and shall
be file-stamped by the Clerk of the Court of Appeals, at
Aé4 AS
which time the period for review will begin to run. App.
R. 22(E). DECISION AND JOURNAL ENTRY OF THE COURT
/s/ Joun W. Porrer OF APPEALS OF LUCAS COUNTY, OHIO DENY-
Presiding Judge ING MOTION TO CERTIFY FOR CONFLICT
/s/ CuIrrorD F. Brown (Filed February 2, 1979)
Judge
/s/ Joun J. Connors, JR. No. L 78-266
Judge ’
IN THE COURT OF APPEALS OF LUCAS COUNTY
Joun W. Porter, P.J., CLirrorp F. Brown, Jr., J., JoHN J.
Connors, JR., J., concur.
RUSSELL MORTON BROWN,
D® CISION AND JOURNAL ENTRY OF THE COURT Appellee,
OF APPEALS OF LUCAS COUNTY, OHIO DENY- v.
ING RECONSIDERATION EDWARD O. LAMB, et al.,
(Dated February 2, 1979) Appellants.
No. L 78-266
IN THE COURT OF APPEALS OF LUCAS COUNTY DECISION AND JOURNAL ENTRY
This cause came to be heard upon appellant’s motion
RUSSELL MORTON BR ‘
Appellee _— to certify this case to the Supreme Court of Ohio for
, reasons of conflict with a decision of another appellate
v.
court.
EDWARD O. LAMB, et al.,
Appellants. - Having considered the briefs submitted by both par-
ties and finding no conflict between our decision and that
DECISION AND JOURNAL ENTRY of any other appellate court of the State of Ohio, we find
This cause came to be heard upon appellant’s applica- f said motion not well taken.
tion for reconsideration. Appellant’s motion to certify is denied.
Finding no cause to reverse our decision of J anuary 11, 7
1070. we tudhiee 40 cai extatnal Qectsion: JouNn W. Porter, P.J., CLirrorp F. Brown, Jr., J., Joun J.
Connors, Jr., J., concur.
Appellant’s application for reconsideration is denied.
Joun W. Porter, P.J., CLirrorp F. Brown, Jr., J., JoHN J.
Connors, JRr., J., concur.
A6
OPINION OF THE COURT OF COMMON PLEAS
(Filed August 25, 1978)
Case No. 186753
IN THE COURT OF COMMON PLEAS,
Lucas County, OHIO
RUSS .L MORTON BROWN,
Plaintiff,
v.
EDWARD O. LAMB, et al.,
Defendants.
OPINION
This matter came on to be heard upon the plaintiff's
motion to dismiss or in the alternative to strike the defen-
dants’ counterclaim for declaratory judgment. The matter
further came on to be heard on the motion of the defen-
dants seeking summary judgment on their counterclaim
for declaratory judgment and on the fifth defense con-
tained in their answer on the grounds that the full faith
and credit clause of the United States Constitution and its
implementing statute is a complete bar to further prosecu-
tion of this case. This matter was heard on said motions
on the 23rd day of November, 1977, and extensive briefs
were filed by counsel thereafter.
L
It is unnecessary for the Court, in this memoran-
dum opinion, to recap the history of this case. Said
— <*>
SS. eee”
AT?
history is adequately set forth in a statement of chron-
ological history which was filed by defendants for the
benefit of court and counsel at the time of the hearing.
It should, however, be mentioned, as it was in defen-
dants’ brief, that plaintiff did not seriously prosecute
the case in this Court until after final termination on
March 30, 1970 of an identical suit which had been
filed in the District of Columbia. Since that time the
case has been to the Sixth District Court of Appeals
twice,’ the Supreme Court of Ohio,? the United States
District Court for the Western Division of the Northern
District,? the United States Court of Appeals for the Sixth
Circuit,‘ and to the United States Supreme Court on a
petition for writ of certiorari, which was denied.®
After review by the Supreme Court of Ohio, the case
was remanded to this Court for further proceedings con-
sistent with its per curiam opinion. Brown v. Lamb, 36
Ohio St.2d 8, 302 N.E.2d 582, 65 Ohio Op.2d 64 (1973)
(per curiam). However, defendants, by an order of the
United States District Court dated November 11, 1974,
were granted an injunction in Lamb Enterprises, Inc. v.
Kiroff, 399 F. Supp. 490 (N.D. Ohio 1975), prohibiting
prosecution of the case on the ground that the District of
Columbia judgment in Case No. 1292-63 was entitled to
full faith and credit. Then, on January 31, 1977, the
1. Brown v. Lamb, C.A. No. 7176 (6th Dist. Ohio App., July
21, 1972); Brown v. Lamb, C.A. No. 6918 (6th Dist. Ohio App.,
Jan. 29, 1971).
2. Brown v. Lamb, 36 Ohio St.2d 8, 302 N.E.2d 582, 65 Ohio
Op.2d 64 (1973) (per curiam).
3. Lamb Enterprises, Inc. v. Kiroff, 399 F. Supp. 409 (N.D.
Ohio 1975).
*.. Lamb Enterprises, Inc. v. Kiroff, 549 F.2d 1053 (6th Cir.
1977).
5. 397 U.S. 907, 90 S. Ct. 904, 25 L.Ed.2d 88 (1970).
A8
United States Court of Appeals for the Sixth Circuit va-
cated that injunction, 549 F.2d 1053 (6th Cir. 1977). In
reversing the District Court for its unwarranted interfer-
ence in litigation over which state courts have jurisdiction,
the Court of Appeals held that the District Court should
have exercised equitable restraint and allowed the state
courts of Ohio to resolve the issues presented. Id. at 1054.
Thus, while the Sixth Circuit Court of Appeals im-
posed the doctrine of equitable restraint, it did not decide
the issue of whether or not the judgment in the District
of Columbia constituted a bar to further proceedings in
Ohio under the full faith and credit clause. Id. at 1062.
Rather, the Court noted:
No basis for equitable relief, justifying an injunc-
tion against further proceedings in the State Court,
is established on the record in the present case. As
set forth in Part IV of this opinion, there is no finding
by the District Court of bad faith. Further, appellees
are not subjected to harassment or irreparable injury
by having to raise their defenses in the Ohio Court.
We reemphasize that the Supreme Court of Ohio has
remanded the case to the State trial court for further
proceedings. No reason is shown why the appellees
cannot and will not be accorded a fair trial on the
merits of their case in the Court of Common Pleas
of Lucas County, Ohio, where the full faith and credit,
res judicata and collateral estoppel defenses presum-
ably remain available to them.
Id. at 1061. The Court further explained:
In the present case there is an unresolved ques-
tion as to whether there has been a full and final
adjudication of all the questions of law and fact in
the District of Columbia litigation. The decision of
Ag
the Court of Appeals for the District of Columbia
was that Brown’s suit in that jurisdiction was barred
by the three year District of Columbia statute of
limitations. Brown v. Lamb, supra, 414 F.2d 1210
(D.C. Cir. 1969). The question of whether the District
of Columbia decision forecloses the right of Brown to
proceed with his litigation in the Ohio courts is an
issue to be decided by the state courts.
Id. 1061-62 (emphasis added).
Il.
The defendants in these motions now up for decision
persist in their claim that this action is barred by the
doctrine of full faith and credit. Moreover, their “pique”
at having to relitigate this matter is evident throughout
their oral arguments and briefs. They argue with great
force that plaintiff commenced this lawsuit in Lucas
County, Ohio, then filed a second lawsuit in Washington,
D. C. and vigorously prosecuted that action. Meanwhile,
the defendants endeavored in every manner possible to
obviate the D. C. litigation. Defendants point out that
they sought to quash service of summons in the District
of Columbia; that defendants raised the issue of the statute
of limitations in the District of Columbia and sought a
summary judgment thereon; and that the defendants tried
to get a stay in the District of Columbia proceedings
pending prosecution of this case in the Ohio court.
In addition, defendants maintain that once forced to
trial in the District of Columbia where final judgment
was rendered in its favor by the Circuit Court of Appeals
on the issue of the statute of limitations, they must now
be protected from being “vexed twice” in Ohio by the
same plaintiff who had pursued the identical action in the
Al0
District of Columbia.* Defendants urge that plaintiffs
should not now be given a second “bite of the apple”
since this is the very essence of what the full faith and
credit, res judicata and estoppel doctrines were formulated
to prevent.
On the other hand, plaintiff argues with equal force
that these doctrines do not apply to a judgment based on
the statute of limitations since such a judgment is not
“on the merits” as to the Ohio action. Plaintiff further
argues that the law in the case sub judice has been estab-
lished by the Ohio Supreme Court and this contention
will be addressed later in this opinion.
6. In the case sub judice the defendants analogize that the
selection of the District of Columbia forum, like selection of
remedies, bars them from being vexed twice for one and the
same cause on the theory of estoppel. See, e.g., United States v.
Oregon Lumber Company, 260 U.S. 290, 43 S. Ct. 100, 67 L.Ed.
261 (1922). There, plaintiffs brought an original suit in equity
and when an answer was filed raising the statute of limitations,
the Court held that it should have conveyed to plaintiff a warning
of the danger of continuing the equity lawsuit further. How-
ever, plaintiff persisted in pursuing the equity suit to its final
adverse judgment. Plaintiff then attempted to refile under a
different theory of recovery for which the statute had not run.
The court held as follows:
The distinguishing feature of the instant case is that
after the coming in of the answer, pleading the statute of
limitations, and the plain warning thus conveyed of the
danger of continuing the equity suit further, the plaintiff
in error persisted in pursuing it to final judgment, instead
of promptly reforming the cause or dismissing the bill and
seeking the alternative remedy not subject to the same de-
fense. The doctrine of election of remedies and that
of res judicata are not the same, but they have this in
common, that each has for its underlying basis the maxim
which forbids that one shall be twice vexed for one and the
same cause. The policy embodied in this maxim we think
requires us to hold that the plaintiff in error, in bringing
the original suit, and in continuing after the plea in bar to
follow it to a final determination, made an irrevocable
election, and that it is now estopped from maintaining the
present inconsistent action.
Id. at 301 (emphasis added).
ame
Alt
Because of counsel’s persistence in arguing the full
faith and credit question; and because the United States
Court of Appeals stressed that the Ohio courts could
adequately dispose of the federal full faith and credit
question’; and in light of the Ohio Supreme Court com-
ments in Brown v. Lamb with respect to the case of
LaBarbera v. Batsch, 10 Ohio St.2d 106, 227 N.E.2d 55,
39 Ohio Op.2d 103 (1967), a discussion of the doctrines is
necessary.
It is not surprising to this Court that no less than
five theories have been advanced as the proper basis for
resolution of the legal issues involved. Thus, it has been
suggested that the District of Columbia judgment requires
application of both res judicata and estoppel by judgment
principles, see Judgment Entry of Judge Baynes, March 6,
1972; that the plaintiff abandoned its case, see Brown v.
Lamb, C.A. No. 7176, slip op. at 2 (6th Dist. App., July 21,
1972); that the plaintiff’s cause of action merged in the
judgment rendered by the District of Columbia Court,
see Brief of Defendants in Opposition to Plaintiff’s Motion
to Dismiss or Strike Defendant’s Counterclaim and in
Support of Defendant’s Motion for Summary Judgment
at 18; that the District of Columbia judgment is entitled
to full faith and credit under Article IV, Section 1 of the
United States Constitution and, therefore, precludes litiga-
tion in this matter, id. at 5; and that the plaintiff is en-
titled to present the merits of its case because the effect
to be given the District of Columbia judgment is “a matter
of local law.” See Plaintiff's Motion to Dismiss Counter-
claim or in the alternative Motion to Strike Counterclaim
at 5. At this point, however, the precise issue before
7. Full faith and credit involves a federal right and is
controlled by federal law. Magnolia Petroleum Company v. Hunt,
320 U.S. 430, 64 S. Ct. 208, 88 L.Ed. 149 (1943), rehearing denied,
321 U.S. 801, 64 S. Ct. 483, 88 L.Ed. 1088 (1944).
Al2
the Court may be stated as follows: What is the effect
which this Court must give to the judgment rendered
by the United States District Court for the District of
Columbia?
According to plaintiff, it is entitled to present its case
to this Court on the merits because the question of the
effect to be given the statute of limitations is a question
of local law; as a result, plaintiff contends, this Court
must look to the Ohio statute of limitations to determine
what effect it must be given to a judgment based on the
District of Columbia statute of limitations.®
Further, plaintiff asserts that the running of the statute
of limitations in Washington, D. C., merely extinguishes
the remedy and not the right behind the cause of action.
But the cases cited by the plaintiff in support of this
contention are readily distinguishable from the case at
bar. A careful reading of these cases demonstrates the
significance therein of the revival of a debt by new and
adequate consideration so as to take the case out of the
statute of limitations, see, e.g., Bell v. Morrison, 26 U.S.
(1 Pet.) 351 (1828); Cafritz v. Koslow, 167 F.2d 749 (D.C.
Cir. 1948); or the restricted use of the statute of limitations
as a shield but not a sword. See Talbott v. Hill, 261
F. 244 (D.C. Cir. 1920).
Plaintiff’s strongest argument is its claim that the
“running of the statute of limitations in the District of
Columbia does not bar an action on the same claim in
another jurisdiction where the statute of limitations has
8. This contention would be true if plaintiff were seeking
to enforce a valid foreign judgment in an Ohio court. On the
facts of the instant case, if plaintiff had succeeded in its District
of Columbia action and if judgment had been rendered in its
favor, then an action on that prior judgment by plaintiff in the
Ohio Courts would be governed by the Ohio statute of limitations.
See e.g., M’Elmoyle v. Cohen, 38 U.S. (13 Pet.) 312, 10 L.Ed. 177
(1839).
iM ii iN i ig ct a Bae a a ciate udim
Al3
not run.” For its authority, plaintiff relies on a Second
Circuit decision, Warner v. Buffalo Drydock Co., 67 F.2d
540 (2d Circuit 1933), cert. denied, Buffalo Drydock v.
Salkfeld, 291 U.S. 678 (1934), as well as decisions of the
Third and Fifth Circuits which follow Buffalo Drydock.
See Fricks v. Carroll, 368 F.2d 328 (5th Cir. 1966); Hart-
mann v. Time, Inc., 166 F.2d 127 (3d Cir. 1948). Similarly,
plaintiff relies on the Restatement of Judgments Section
49, comment a at 194-95 (1942). While this position may
represent the majority view in the United States, see also,
Western Coal and Mining Co. v. Jones, 27 Cal.2d 819,
167 P.2d 719 (1946) (en banc); Brand v. Brand, 116 Ky.
785, 76 S.W. 868 (App. 1903), it must be noted that the
trend or modern view is diametrically opposed.
For example, since its decision in Buffalo Drydock,
the Second Circuit courts have rendered a series of deci-
sions which implicitly if not explicitly have overruled Buf-
falo Drydock. See Sack v. Low, 478 F.2d 360 (2d Cir.
1973); Bertha Bldg. Corp. v. Nat. Theatres Corp., 248
F.2d 833 (2d Cir. 1957), cert. denied, 356 U.S. 936 (1957);
Murphy v. A/S Sobral, 187 F. Supp. 163 (S.D.N.Y 1960);
McNaughten v. Hudson, 377 N.Y.S.2d 140, 50 App. Div.2d
863 (1975). These cases acknowledge the impact on the
federal courts of Rule 41(b) of the Federal Rules of Civil
Procedure, which in essence states that a dismissal based
on the statute of limitations “operates as an adjudication
on the merits” where the district judge does not specify
otherwise. Accord, Ohio R. Civ. P. 41(b) (3). Moreover,
the tentative draft of the Restatement (Second) of Judg-
ments also adopts this position. See Restatement (Second)
of Judgments Section 48.1(1)(c) comment j at 42 (Tent.
Draft, No. 1, 1973).
It is the modern view which represents the basis of
defendant’s argument, namely, that the District of Co-
Al4
lumbia judgment n.o.v. was an adjudication on the merits
and as such is entitled to full faith and credit under Article
IV, Section 1 of the United States Constitution and 28
U.S.C. Section 1738. Otherwise stated, the defense relies
on the language of the United States Supreme Court in
Magnolia Petroleum Co. v. Hunt, supra:
(a) litigation once pursued to judgment shall be
as conclusive of the rights of the parties in every
other court as in that where the judgment was rend-
ered, so that a cause of action merged in one state
is likewise merged in every other.
320 U.S. at 439. From this premise, the defendant argues
that the District of Columbia judgment is res judicata
and, therefore, further litigation by plaintiff is barred.®
On the simplest level, this determination could be
made by answering the question whether the District of
Columbia judgment, based on the statute of limitations,
is a judgment on the merits. This Court has already
discussed the two conflicting views on the issue—the ma-
jority rule and the modern trend. In light of the 1947
decision in Angel v. Bullington, 330 U.S. 183, 67 S. Ct.
657, 91 L. Ed. 832 (1947), wherein the Supreme Court
held that “the merits of a claim are disposed of when
it is refused enforcement,” id. at 190, this Court would,
9. The doctrine of res judicata is often loosely intertwined
with the constitutional mandate of full faith and credit. See
e.g., Durfee v. Duke, 375 U.S. 106, 84 S. Ct. 242, 11 L. Ed.2d 186
(1963), wherein the Court explained:
“(F)ull faith and credit thus generally requires every state
to give to a judgment at least the res judicata effect which
the judgment would be accorded in the state which rendered
it. ‘By the constitutional provision for full faith and credit,
the local doctrines of res judicata, speaking generally, be-
come a part of national jurisprudence... .’”
Id. at 109 (citation omitted).
Al5
under ordinary circumstances, be inclined to follow the
emerging view.’°
But the instant case does not present a case where;
for example, plaintiff filed first in the District of Columbia
whereupon judgment n.o.v. was entered for defendant and
subsequently plaintiff filed in this Court. Rather, the
unique facts of this case require this Court to look beyond
the basic principles cited by the respective parties to the
decision rendered by the Ohio Supreme Court in Brown
v. Lamb, supra.
IV.
What is the law of the case sub judice? In Brown
v. Lamb the Supreme Court held that the trial court com-
mitted prejudicial error in staying its order of October
5 reinstating this case on the docket. The Court further
held that any errors which occurred in subsequent proceed-
ings could not have transpired but for that original error.
This holding seems simple enough. But the comments
made by the Supreme Court in its per curiam opinion
have caused counsel and the court problems. Most notably,
the Court in Brown v. Lamb stated:
(w)e also note that the case of LaBarbera
v. Batsch (1967) 10 Ohio St.2d 106, 39 O.0.2d 103,
227 N.E.2d 55 is distinguishable upon its facts from
the instant case, is not dispositive of the issue involv-
ing res judicata and should not have been relied upon
for that purpose below.
10. If full faith and credit represents the “national juris-
prudence” on the doctrines of res judicata and estoppel, and if
a judgment on the statute of limitations is a judgment on. the
— it should bar the further prosecution of this suit in this
ourt.
Al6
36 Ohio St.2d at 11. In LaBarbera the Supreme Court
set forth the various rules of law at issue here, as well
as the underlying policy considerations. First, with respect
to res judicata, the court explained:
The policy of res judicata is to assure an end to litiga-
tion, and to prevent a party from being vexed twice
fom the same cause. . . . Statutes of limitations are
similarly designed to assure an end to litigation and
to establish a state of stability and repose.
39 Ohio Op. at 108 (citations omitted). Second, in its
analysis of the applicable statute of limitations, the Court
noted that
the General Assembly must be presumed to have
known that a judgment based upon the statute of
limitations is generally regarded as on the merits and
bars another action for the same cause within the
state rendering it.
Id. at 109. Third and equally significant is the comment
by the Court relating to estoppel:
Even if this dismissal were not on the merits
(contrary to our later holding herein) where this same
issue is raised in a subsequent suit on the same cause
of action between the same parties, the elements of
a ‘direct estoppel’ are present.
Jd. at 105 (citations omitted).
It is obvious that the facts in LaBarbera are different
from the case at bar. There, a suit was dismissed without
a trial on the issues because the action had not been
commenced within the periods prescribed by statute.
Thereafter, the dismissal was affirmed on appeal and fur-
ther appeal time expired. Subsequently, the action was
Al7
refiled under the guise of the savings statute, Section
2305.19, Ohio Revised Code.
What then are the distinguishing facts in this case
that caused the Ohio Supreme Court to state that LaBar-
bera was not dispositive of the issues of res judicata and
estoppel? This Court is left to speculate; it is most prob-
ably because of the singular fact that the case herein
was originally commenced in Ohio where no statute of
limitations problem existed. It was neither prematurely
filed as in Belpash v. Emerine, 119 Ohio St. 226, 162 N.E.
799 (1928), nor did it involve a refiling or a revival of
an action, see slip op.1 at 5. Rather, this case was still
pending in Ohio when the action was filed, tried and
reduced to judgment in the District of Columbia. It must,
therefore, be assumed that the Supreme Court in Brown
v. Lamb found that the operative facts in the instant
case precluded the application of the doctrines of full faith
and credit, res judicata and estoppel. In other words,
the Ohio courts do not have to give the District of Columbia
judgment its “local effect” and, therefore, such judgment
is neither on the merits nor does it create an estoppel
to this action."’ Since the defendants raised these issues
in Brown v. Lamb and did not seek an appeal to the
United States Supreme Court from that ruling, the decision
in Brown v. Lamb must stand as the law in this case.
It is, therefore, the opinion of this Court that the
law in the instant case has been established by the Ohio
11. Plaintiff maintains that the comment by the Ohio Su-
preme Court in Brown v. Lamb that the dismissal of the instant
case constituted an erroneous denial of a day in court for
(Brown) was a mandate to this Court that a trial should be had
on the merits and that the motions for summary judgment on
the counterclaim for declaratory judgment and on the fifth de-
fense of full faith and credit in the answer do not constitute
“a day in court.” In view of this court’s holding on the full
faith and credit issue, it is unnecessary to address this contention.
Al8
Supreme Court in Brown v. Lamb. Accordingly, the mo-
tion for summary judgment on the counterclaim for de-
claratory judgment and on the fifth defense contained
in the defendant’s answer is not well taken and the same
is ordered overruled; consequently, plaintiff’s motion to
dismiss counterclaim or in the alternative motion to strike
counterclaim is also not well taken and is hereby overruled.
/s/ GEorGcE N. Krirorr
Common Pleas Judge
DECISION ON MOTION OF THE COURT
OF COMMON PLEAS
(Filed September 19, 1978)
No. 188753
IN THE COURT OF COMMON PLEAS
or Lucas County, OHIO
RUSSELL MORTON BROWN,
Plaintiff,
Vv.
EDWARD O. LAMB, et al.,
Defendants.
DECISION ON MOTION
This cause came on to be heard upon the Motion
of Defendants for Entry of Final Judgment and Determina-
tion of No Just Reason for Delay, and upon the Motion
in Opposition to Defendants’ Motion for Entry of Final
Judgment filed by plaintiff.
Al1g
Through its motion, defendants urge this Court to
certify its decision of August 25, 1978, denying defendants’
Motion for Summary Judgment, and thereby allow de-
fendants to appeal that ruling as a final appealable order
pursuant to Ohio Civ. R. 54(B).
In opposition, plaintiff maintains that Rule 54(B) is
inapplicable to the case at bar, because the Court’s denial
of defendants’ Motion for Summary Judgment did not
dispose of a “claim” presented by defendants; rather, plain-
tiff argues, the Court’s decision rejected defendants’ de-
fenses which, if successful, would have barred further
proceedings herein. According to plaintiff’s interpretation
of Rule 54(B), this absence of a “claim” precludes reliance
on Rule 54(B) at this time.
In considering the propriety of defendants’ present
motion, this Court has read all cases cited by the parties
in their respective memoranda. Upon review thereof, this
Court must agree with plaintiff that defendants have mis-
characterized its defenses as a “counterclaim” in an effort
to avoid or to delay another trial in this matter. As
indicated in its decision of August 25, 1978, this Court
remains convinced that the law in this case has been
determined by the Ohio Supreme Court in Brown v. Lamb,
36 Ohio St.2d 8, 302 N.E.2d 582, 65 Ohio Op.2d 64 (1973)
(per curiam); as a result, Rule 54(B) is not the proper
remedy and may not be utilized to circumvent the effect
of that case.
While this Court realizes that, in forcing defendants
to trial without an immediate appeal on the question of
full faith and credit, defendants will in effect be “vexed
twice,” defendants have failed to present a viable alterna-
tive to this Court which would permit a different result.
Because defendants chose not to challenge the Supreme
Court’s decision in Brown v. Lamb, supra, during the allow-
A20
able time for appeal, this Court now has no choice but
to proceed with trial.
In light of the foregoing, the Court finds that the
Motion of Defendants for Entry of Final Judgment and
Determination of No Just Reason for Delay is not well
taken and is hereby denied.
/s/ GEorGE N. KIROFF
Judge
JOURNAL ENTRY OF THE COURT OF COMMON
PLEAS DENYING MOTION FOR SUMMARY
JUDGMENT
(Filed October 6, 1978)
Case No. 186753
COURT OF COMMON PLEAS
Lucas County, OHIO
RUSSELL MORTON BROWN,
Plaintiff,
Vv.
EDWARD O. LAMB, et al.,
Defendants.
JOURNAL ENTRY
This cause came on to be heard on the Motion of de-
fendants for Summary Judgment and on the Motion of
plaintiff to Dismiss or to Strike the Counterclaim. The
Motion for Summary Judgment was submitted to the Court
on the pleadings, Answers to Interrogatories and Affidavit
on file in this case, together with briefs and arguments of
A21
counsel and the Motion to Dismiss or to Strike the Counter-
claim was submitted to the Court on the briefs and argu-
ments of counsel.
The Court, being fully advised in the premises, finds
that as to the Motion for Summary Judgment, there is no
genuine issue as to any material fact relevant to defen-
dants’ Counterclaim or defendants’ Fifth Defense but that
defendants are not entitled to judgment as a matter of law
and, consequently that the Motion for Summary Judgment
is not well taken and should be overruled.
The Court further finds that the Motion to Dismiss or
Strike the Counterclaim is also not well taken and should
be overruled.
The reasons for these rulings are stated in the Court’s
Opinion filed herein on August 25, 1978.
IT IS, THEREFORE, ORDERED, ADJUDGED AND
DECREED that the defendants’ Motion for Summary Judg-
ment be, and the same hereby is, denied and overruled.
IT IS FURTHER ORDERED, ADJUDGED AND DE-
CREED that the plaintiff’s Motion to Dismiss or to Strike
the Counterclaim be, and it hereby is, overruled and denied.
/s/ GrEorcE N. Krrorr
Common Pleas Judge
A22
JOURNAL ENTRY OF THE COURT OF COMMON
PLEAS DENYING SEPARATE TRIAL ON FULL
FAITH AND CREDIT DEFENSE
(Filed October 25, 1978)
Case No. 186753
COURT OF COMMON PLEAS
Lucas County, OHIO
RUSSELL MORTON BROWN,
Plaintiff,
V.
EDWARD O. LAMB, et al.,
Defendants.
JOURNAL ENTRY
This cause came on to be heard on the Motion of defen-
dants for Separate Trial of defendants’ Counterclaim and
Defense of Full Faith and Credit to the Final Judgment
entered December 22, 1967 in the case of Russell M. Brown
v. Edward O. Lamb and Dispatch, Inc., Case No. 1292-63 in
the United States District Court for the District of Co-
lumbia and the same was submitted to the Court on the
record, briefs and statements of counsel.
The Court finds that in its ruling on defendants’ Motion
for Summary Judgment, it determined that there is no
genuine issue as to any material fact relevant to defendants’
Counterclaim or defendants’ Affirmative Defense of Full
Faith and Credit but that defendants are not entitled to
judgment on those issues as a matter of law and conse-
quently finds that this Motion for Separate Trial is not
well taken and should be overruled.
A23
IT IS, THEREFORE, ORDERED, ADJUDGED AND
DECREED that defendants’ Motion for Separate Trial of
defendants’ Counterclaim and Affirmative Defense of Full
Faith and Credit to the District of Columbia Judgment be,
and the same hereby is, overruled and it is ordered that
this case proceed to trial on all other issues.
Upon plaintiff's request at pretrial conference, IT IS
FURTHER ORDERED that he be granted leave to file a
Motion for Summary Judgment herein.
/s/ GeEorGE N. KrIRorr
Common Pleas Judge
A24
CERTIFICATION OF FINAL JUDGMENT OF U. S.
DISTRICT COURT FOR THE DISTRICT OF CO-
LUMBIA
. Wnited States District Court
ae! sc for the ae
DISTRICT OF COLUMBIA,
he ° , ” * Chiet Depu i Lai oot
l, Serbert N.Haller /, Gack of the States District Court for the
District of Columbia , , aud keeper of the records and seal thereof, hereby
certify that the Cocuments attached hereto are true copies ef Order filed December 22, __
1967 * - * ° 1977, Granting Defendants motion for judgment non obstante veredicto, .
lternati for a_new trial
In testhnony whereof I hereunto sign my name and affix the seal of sald Court, in aald District,
at Washington D.c. this 29th day 7.
Berb N.Haller, ef Deputy Clerk.
a
Ki |
“att
’ ; Chief
L william B. Bryant » United States District/Judge for the
do that Herbert N. Maller
District ef Columbia » do hereby certify chlo? Deniiie ®
whose name is above written and subscribed, is and was at the date thereo{/Clerk of said Court,
duly appointed and sworn, and keeper of the records and seal thereof, and that the above certis-
cate by him made, and his attestation or record thereof, is la due form of law.
July 29 77 —enct LE :
> 18. United States Distro Judge.
William B. Bryant,Chie?s
, Judge
Chief Deputy
L Serbert x. Haller »Alerk of the United States District Court for the
_ District of Columbia , and keeper of the seal thereof, hereby certify
that the Honorable William B. Bryant whose name ls withia — .
and subscribed, was on the 29th dayof July 19 77, and now is4udze
ef sald court, duly appointed, confirmed, sworn, and qualifed; and that I am well acquainted with
bis handwriting and official signature and know and bereby certify the same within written to be his,
In testimony whereof I hereunto sign my name, and afix the seal of sald Court at the city
: — Dc, brett, o this fb IP Y. Soil.
N.Haller,chief Deputy Clerk.
°.
Ex. LT
*By stipulation it has been ordered that this Certificate should properly
and correctly state that the attached Order was "Filed December 22, 1967" and
thac this correction may be indicated on the original copy of Exhibit I.
A25
FINAL JUDGMENT OF THE U. S. DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
(Filed December 22, 1967)
Civil Action No. 1292-63
UNITED STATES DISTRICT COURT
For THE DISTRICT oF COLUMBIA
RUSSELL MORTON BROWN,
Plaintiff,
Vv.
EDWARD OLIVER LAMB
and
DISPATCH, INC.,
Defendants.
ORDER GRANTING DEFENDANTS’ MOTION _FOR
JUDGMENT NON OBSTANTE VEREDICTO, OR IN
THE ALTERNATIVE, FOR A NEW TRIAL
This matter coming on for consideration by the Court
upon motion by defendants for judgment n.o.v. or in the
alternative for a new trial, and upon consideration of the
respective points and authorities filed by the defendants
and plaintiff, and it appearing to the Court that the statute
of limitations had run prior to the filing of this action,! that
1. D.C. Code, § 12-301 (1967) formerly D.C. Code § 12-201
(1961), limits the bringing of an action on a simple contract,
express or implied, to a period of 3 years from the time the right
to maintain the action shall have accrued. The plaintiff rendered
no services after mid-June 1957 but did not file this action unti]
May 21, 1963. .
A26
no evidence was adduced at the trial of a character requisite
for taking this action out of the statute of limitations,’
and hence that the motion for judgment n.o.v. should be
granted;
AND with respect to so much of defendants’ motion
as in the alternative seeks a new trial, the Court being of
the opinion that in the event the judgment n.o.v. which is
to be entered herein for defendants should be thereafter
vacated or reversed® a new trial should be granted on the
ground that the verdicts are excessive and that the manner
in which plaintiff presented his case was such as to prej-
udice the jury against the defendant*;
2. D.C. Code § 12-305 (1961), now D.C. Code § 28-3504
(1967), provides in pertinent part: “In actions of debt or upon
the case grounded upon any simple contract, no acknowledgement
or promise by words only shall be deemed sufficient evidence of
a new or continuing contract whereby to take any case out of the
operation of the statute of limitations or to deprive any party
of the benefit thereof unless such acknowledgement or promise
shall be made or contained by or in some writing to be signed
by the party chargeable thereby.”’ See also Hornblower v. George
Washington University, 31 App. D.C. 64 (1908); Moore v. Snider,
71 App. D.C. _.., 109 F.2d 840 (1940), cert. den., 309 U.S. 685;
Howard University v. Cassell, 75 App. D.C. 75, 126 F.2d 6 (1941),
cert. den., 316 U.S. 675, rehearing denied, 316 U.S. 711.
3. Rule 50(c) (1), Federal Rules of Civil Procedure, provides
in part: “If the motion for judgment notwithstanding the ver-
dict, provided for in subdivision (b) of this rule, is granted, the
court shall also rule on the motion for a new trial, if any, by de-
termining whether it should be granted if the judgment is there-
after vacated or reversed, and shall specify the grounds for grant-
ing or denying the motion for the new trial.”
4. The claim of plaintiff in this action is grounded primarily
on services rendered by him in a proceeding before the Federal
Communications Commission which questioned the propriety of
the renewal of a television license held by a corporation on the
ground that the Commission had information that Mr. Lamb, a
controlling officer of the corporation, was a Communist, had
Communist affiliations, and had promoted Communism, etc. At
the trial of this action plaintiff maintained that in order to show
the services he had rendered he must necessarily indicate the
charges he had to overcome. However, more emphasis was
placed on the charges than on the services, supplemented by
(Continued on Following Page)
A27
Now, therefore, it is this 22nd day of December 1967:
ORDERED That judgment non obstante veredicto be
and the same is hereby entered for the defendants, and it
is further
ORDERED That if hereafter said judgment be vacated
or reversed, then and in that event, a new trial is granted.
/s/ BuRNITA SHELTON MATTHEWS
Judge
Footnote continued—
prejudicial intimations that the charges were true after all. For
instance, plaintiff's attorney in final argument said:
“Ladies and Gentlemen of the Jury, one of the exhibits
that was introduced by the Government (referring to the
FCC case) was a book written by Mr. Edward Lamb—the
defendant in this case—entitled ‘The Planned Economy of
Soviet Russia’, and what is charged by the government
against Edward Lamb is the fact that he urged the over-
throw of the United States Government by force and vio-
lence. And here is what they refer to:
‘If the American planned economy is to be achieved it
becomes evident that those who produce, the workers
and farmers, and those who defend - this is the militia
men - through joint action and organization surely must
assume title to the means of production.’
Now, if there ever was a statement that urges the over-
throw of this government by the farmers and the militia
men this is that statement and this is just one of the many
statements that they had of Edward Lamb being made and
going into the communist movement, in other words copies
_ of the Daily Worker, to which Mr. Lamb contributed, and as
counsel to the organizations such as the legal tool of the
communist party; this is a man who was accused of being
a communist fellow traveller and this is the type of evidence
that was presented against him. This is the type of evidence
that Russell Morton Brown had to overcome.” (Emphasis
supplied. )
A28
DOCKET ENTRIES OF U. S. DISTRICT COURT FOR
DISTRICT OF COLUMBIA (Civil Action No. 1292-63)
cory
CIVIL DOCIET
UNITED STATES DISTRICT COCAT FOR THE DISTAICT OF COLU-GIA
Portier ttomevs er
rzea Brova icon MN. Burze -e3
. 1010 Vercont Ave., ¥.W.
, Ve yy C. Goodpasture
: 8 Federal Bar Bldg. Action for
1. Edvard Oliver Lacb George E. C. Hayes
613 F. Sc. BW. Recover Attorney Fees
2. Dispatch, Iac., A Corporation $300 ,900 .00
¢ ove rk Goerkten
2526-k6 th-Sterp es,
3841 Rarrison Sc., N.W.
é .
W. Meyer Baker
Johan P. Carrigaa
400 Madison Ave.
Toledo, Ohie ,
- , dury Decaad x.
Date Accowmt Rec'd. Disb'd.
1963
May 21 Goodpasture 10.00
May 21 U. S$. Treas. 10.00
1968
- 18 Burke 5.00
Jan. 18 Dv. S$. Treas. $.00
Feb. 23 Burke 2.60
Fed. 23 U.S. Treasury 2.60
May 15 Burke 50
May 15 U.S. Treasury ¢ ]
‘Date 7 Proceedines
1963
May 21 Complaint, appearance, jury decand Tiled
May 21 Susons, copies (2) and copies (2) of Co=plaine issued
Both ser 3/21/63
June 10 Motion of deft fl to quash service; P & A; e/a 6/10/63
MC 6/10/63; appearance of Lovell Coerlich Filed
June 10 Motion of deft #1 co strike; P & A: c/a 6/10/63;
MC 6/10/63 Filed
June 10 Motion of deft #2 co quash; P & A; c/n 6.10/63;
MC 6/10/63; appearance of Lowall Cocrlich Filed
June 21 Points and authorities of plcf in opposition te
motion to strike; c/a 6/21/63 Filed
Jue 21 Points and authorities of plef in opposition co
motion of defc #1 to quash; ¢/a 6/21/63 Filed
XNIBS
certificate of readiness provided chat deft nay
take deposition of plef on or before April 15,
1965, 6 1f defe cakes deposition of plef, plef
may depose deft an or before May 1, 1965.
Micro 3/8/65
A29
Brovn v. C.A. Xo, 1292-63
Dete Proceedings
Jume 21 Peints ead authorities of pict in oppesition te sotica
et deft @2 to quash; c/a 6/21/63 Filed
July 13 Affidavit ef Edvard Lach Tiled
Sepe. 13 Affidavic of pict. Filed
Oct. 3 Affidavic ef Edvard Lech Tiled
Occ. 8 Supplecental serorandun of defendants; c/s 10/8/63 Tiled
Oct. 7 Additional authorities ef pict. ia opposition te sotien
: ef Dispatch; c/a 10/7/63 Tiled
Nov. $ Motion of deft. ¢2 for sucmary jydgcent; P & A;
: e/a 11/5/63; MC 11/5/63 Tiled
ov. S$ Motion ef deft. #1 for sucmary judgsent; P & A; c/a
: 11/3/63; wc 11/35/63 Tiled
Bov. 12 Order denying wnocion to strike certain allegations
froa conplaine. (3%) , MeCarraghy, J.
Nov. 12 Order denying cocion of deft Dispatch, Iac., to .
quash service of process. (X) MeGarraghy, J.
Mov. 12 Order denying cotion of deft Edvard Oliver Lach —
to quash return of service of succons. (x)! MeCarraghy, J.
Bov. 19 Stipulation extending cine for pltf to oppose
wocios for suctary judgnent to and including
11/27/63. (4/x) Filed
Kov. 26 Points and Authorities of plainciff in opposition to
motions for succary judgcenct, Staterent of genuine r
issues; Affidavit c/n 11/26/63. Filed
Deer-i7 Moeten-ef-defer-32-ce-¢us2h-service-b-étertss-con7it;
servtce-e f-enswer-ef-destr-42-b-diezies-crossehekes
Aff kdeviws-Hettces-?-b-A+27-efn-22 ke sbSq-Appe
Wercen-Er-Hagee; error Fired
_Dec. 17 Affidavit of Edward Lasb; ¢/ser 12/17/63 Tiled
1964
Jan. 9 Order denying motions of defts for sucasry judgrenct.
(™) MecGarraghy, J.
Jan. 23 Ansver of deft #1 tq cocplaint; ¢/m 1/23/74 Filed
Jan. 23 Anever of deft @2 to cocplaine; c/m 1/23/64 Tiled
Jan. 23 Calendared (AC/X) (™)
Fed. 11 Interrogatories by defendant #1 to plainciff,
e/m 2/1/64 Filed
Feb. 17 Stipulation of counsel extending tice for pltf to
ansver or object to interrogatories to and .
° including 3/17/64 Filed
Mar. 26 Ansver of plef to incerrogatories; c/m 3/26/64 Tiled
Oce. 15 Called ' Pretrial Exaciner
1965
Jan. 21 Certificate of Readiness of pltf. c/m 1/21/65 Filed
Jan. 29 Opposition of defe to certificate of readiness;
e/m 1/28/63; MC 1/29 Tiled
Mar. 5 Recoemendation overruling opposition of deft to
Asst. Pretrial Exaniner
A30
Brown y. Lac> CA Xo. 1292-63
Date Froc g3
1965 sett
Mar. 11 Notice of defendants to take oral deposition of
plainciff£; c/a 3/10/65 . Filed
Mar. 138 Yocice of plcrf to cake oral deposition of deft
#1; c/a V/8 Filed
1966
Mov. 16 Change of address of atty for defts. (AC/é) Filed
Nov. 16 Pretrial proceedings (11/15/66) (Plcf cay take
deposition of deft #1 and deft #1 cay take
deposition of pltf) Pretrial Exaniner
Nov. 23 Notice of plef co take deposition of deft #1;
e/m 11/23/66 Filed
Dec. 1 List of witnesses by plef; e/a 12/1/66 Filed
Dec. 2 Appearance of KN. Meyer Baker and John PF. Carrigan
as counsel for defts. entered. (Rep. Martha .
Malone. (Fiec) Curran, C.J.
Dec. 2 Wichdraval of appearance of Lovell Coerlich as
counsel for defts, without vaiver of attorney
fees (Rep. Marcha Maloney ) fiac. Curran, C.J. -
Dec. 2 Order striking certificate of readiness. MN. AC/N
(Fiac) (Pep. Marcha Maloney) (Fiat) Curran, C.J.
1967 >
Jan. 11 Notice of defzs to take deposition of The Chesapeake
and Potccac Telephone Co; The 2iggs Nacional Bank
of Vashington, D. C. and Russell Morton Brown;
e/a 1/10/67 Filed
Jan. 31 Deposition of defr. #1, 12/16/66 Filed
Feb. 21 Motion of ¢defts for surmary judgrenc; notice; PSA;
Exhibit A, B & C; scaterent; c/n 2/20/67; M.C. Filed
Feb. 24 Deposition of plrf; Jan 23 and 24, .1967
(Costs $171.25) Filed
Mar. 1 Stipulation of counsel for extension of tine for pitt
to file opposition to rotion for suzmary judgcent
to and including 3/10/67 Filed
Mar. 9 Opposition of plicf to rocion of defts for sucmary
: judgcenct; PSA; staterent; affidavit; c/m 3/8/67 Filed
Mar. 17 Deposicion of Rigss National Bank by Racer .
Simpson on 1/23/67; Filed
Mar. 21 Transcript of proceedings 12/17/63, Pages 1-14
(Motion) Rep: Ida Z. Watson) Court's copy Filed
May 2 Motion of defts to stay proceedings; notice; Pé&A; .
e/e 3/2/67 MC ; Filed
May 4 Order denying defendants’ roction for sucmary judg- ,
went. (x) MeGarraghy, J.
May 11 PEA of plzf in opposition to motion to stay; '
e/a $/12/67 : Filed
June i Supplecental mecorandun of plctf in opposition tc °
wotion of deft to stay proceedings; c/s 6/1/67 Filed
— a Certificace of Readiness per all counsel. AC/X Filed
List of witnesses by plitf; c/s 6/13/67 Filed
->
A31
Bro-a v. Lasbd C.A. Xo. 1292-63
Date Proceedings
1967
June 13 _ Services performed by plef for defts; c/s 6/13/67;
as per counsel for plef. Filed
Jure 15 Notice of pltf to produce; c/a 6/14/67 Filed
June 15 Lise of witnesses by plef; c/m 6/14/67 ge Filed
July 13 Motion of plef to enjoin disposal of og P6A;
exhibics A & B; affidavic; c/m 7/7/67; %.C. (fiat) Waddy, J.
Jely 18 Opposition of defendants to notion of plaintiff to
Y enjoin disposal of assets. ¢/m 7/17/67 Filed
Aug. 1 Notice of defts. to take deposition of plef;
e/m 7/24/67 (fiat) Waddy, J.
Aug. 4 Order denying plaintiff's cotion to enjoin dis-.
posal of assets pendente lite. (N) Waddy, J.
Aug. 23 Motion of dcfts for production, inspection and
copying of docuzents; notice; P&A; exhibits
A, B; c/m 8/14/67; M.C. (fiac) Curran, C.J.
Aug. 23 Points and authorities in opposition to notion of ;
defts for production; inspection and copying
of docuzents; c/a 8/1/67 Filed
Sept. 13 Withdraval of Motion for Production of Docurents,
per cousel for defendants. ¢/a 9/11/67 Filed
Sept. 22 List of witnesses by defes; ¢/a 9/21/67 Filed
Sepc: 27 Depositions of Willjam Hildebrand, Jr.4 8/31/67
pudlished i ® Filed
Oct. 2 Additional lise of witnesses by plcf; ¢/m 9/29/67 Filed
Oct. 9 Leave to file motion of pltf for leave to join Lacd
Enterprises, inc., a8 a party deft - Denied with-
out prejudice to bringing before trial judge.
(ftac) (x) Rart, J.
Oct. 13 List of addicional prospective witnesses for plcfs;
e/m 10/12/67 Filed
Oct. 16 Appearance of George E. C. Hayes as associate counsel
, for pict. Filed
Oct. 16 Trial Mecorandun Statement of pltf's claia by defts.
e/s 10/16/67 Filed
Occ. 16 Renewal by the plef to file mocion for leave to join
° Lacd Enterprises, Inc., ss a party defe, argued
and denied as noc tirely made. (Rep: Joan Blair) Macttheus, J.
“Occ. 16 Jury and two alternate jurors sworn; trial begun;
respited co October 17, 1967 (Rep: Joan Slair) Matthews, J.
Oct. 17. Trial resumed; sane jury and alternate jurors;
respited to October 18, 1967 (Rep. Joan Blair) Matthews, J.
Oct. 18 - Trial resuced; saze jury and alternace jurors;
respiced to Occober 19, 1967 at 11:00 a.a.
(Rep: Joan Blair) Macchews, J.
Oce. 19 Trial resurced; sare jury anc alternate jurors;
respited to October 20, 1967 (Rep. Joan Blair) Maccthews, J.
Oct. 20 Trial resumed; same jury and alternates; re-
‘ apited to Occober 23 (Rep: Joan Blair) Matthews, J.
Oct. 23 Trial resured; sare jury and altermaces; re-
spiced to October 24, 1967 (Rep. Joan Blair) Matthews, J.
Oct. 24 Trial resuzed; sare jury and alternates; re-
spited to October 25, 1967 (Rep. Joan Slair) Matthews, J.
abe
A32
G-A. Mo. 1292-63
Proceedings
2967
Oct.
Oct.
Oct.
17
17
Trial resumed; sace jury and alternates; respited
te October 26, 1967 (Rep: Joan Blair)
Trial resumed; sere jury and alcernates; sespited
te October 4), 1967 (Rep: Joan Blair)
Triel resuced; same jury and alternates; canted
te October 31, 1967 (Rep: Joan Blair)
Trial resured; saze jury and alternates; altecuate
jurors discharged; jury begins deliberations;
jury excused until Nov. 1, 1967 to resume de-
liberatiens. (Rep: Joan Blair)
Jury resczes deliberations; verdict for the
plainciff vs. defendanc, Ecsard Oliver Lac+
im the sum of $150,000.00 and against defendant,
Dispatch, Inc., A Corp. in the sya of $259,009.00
(Rep: M. J. Maloney)
Verdict end judgment for the plaintiff vs. defendant,
Edward Oliver Lazc> in sw of $150,000.00 and for
the plaintiff vs defendant Dispatch, Inc., A
Corp. in sum of $250,000.00 (x)
Kotes (3) from jury
Motion of defts’. for Judgsent 4.0.V. or in the
alternative for a new trial; P & A; c/a
11/3/67; M.Cc. :
Transcript of proceedings, 10/17/67, Volune 1, pages
1 through 161 (Rep: Joan Curtis Blair) Court's
copy
Transcript of proceedings, 10/18/67, Voluze 2, pages
162 through 349 (Rep: Joan Curtis Blair) Court's
copy
Transcript of proceedings, 10/19/67, Volure 3, pages
350 through 479 (Rep: Joan Curtis Blair) Court's
copy
Teenseripe of proceedings, 10/20/67, Volure 4, pases
480 through 597 (Rep: Joan Curtis Blair) Court's
copy
Transcript of proceedings, 10/23/67, Voluce 5, pages 598
through 708 (Rep: Joan Curtis Blair (Court's Copy
Transcript of proceedings, 10/24/67, Voluce 6, pases 709
through 856 (Rep: Joan Curcis Blair) Court's copy
Matthevs, J.
Matthews, J.
Macchews, J.
Matthevs, J.
Matthews, J.
Matthevs, J.
Filed
Filedc
Filed
Filed
Filed
Filed
Filed
Transcript of proceedings, 10/25/47, Volume 7, pages 857
through 1025 (Rep: Joan Curtis Blair) Court’s copy
Filed
Transcript of proceedings, 19/26/67, Voluce 8 pages 1026
through 1151 (Sep: Joan Curtis ‘Slair) Court's copy
Transcript of proceedings, 10/30 and 31/1967, Volune 9
pages 1152 through 1337 (Rep: Joan Curtis Blair)
Court's copy
Supplecancal P & A of defendant in support of motion
for judgsenc ¥.0.V.; ¢/m 11/10/67
Points and authorities of plef in opposition to sotion
for judgzenct Xon Abstante Veridicto or for ncw
trfal; ¢/s 11/14/67
Inseructions of plef. (6) i,
Instructions of defcts. (3)
-3-
Filed
Filed
Filed
Filed
Filed
Filed
Filed
a
Brown v. Lazd
A33
€. A. Mo. 1292-53
Date Proceedincs
1967
Nov. 17 Mecorandus by defts of P&A in support of <otion for
directed verdicc; c/s 10/30/67 Filed
Mov. 17 Special interrogatories Ol, 42 6 63 Tiled
Dec. 22 Order granting defts' motion for judg=e==- son obstante
werdicts & if judg=ent is vacaced or sian
@ new trial is granted. (X) Mactthevs, J.
1968
Jan. 18 Notice of appeal by plef form order of 22/22/67
Deposit $5.00 by Burke; copy mailed to he
N. Meyer Baker : Filed
Jm. 0 Cost bond on Appeal of Plef. in suz of $250.00 vith
: Mational Surety Corp. Sirtca, J.
Fed. 9 Exhibics 1, 2, 4, 7, 8, 11, 12, 13, 21, 22, 26, 27, 28,
37, %, 30, $1, 52, $3, 34, SSA, 558, SEc, 56, 57, 58,
539, 60, 61, 62, 63, 64, 65, 66, 71 chre=zh 16, by
plaineiff, Filed
Feb. 12 Exhibits $, 6, 9, ‘10, 14, 13, 16, 17, 18, 19, 23, 24, 29, :
x», H, 32, 32A through 32k, 33, x, } %, x, 40, 41,
42, 43, 44, 45, 466 47, 48, 49, 67, é:, 63, 20, 77, 9
ef plainciff Filed
Fed. 12 Transcripts of official Court Seporter, csa= Curtis
Blair, Vol. -1, Vol.-11, Vol.-1L11; Tol.-:5; Yol.-¥;
Vol.-VI; Vol.-VII; Vol. “vIIt; Vol.-It; Tol.-X Filed
“Feb. 16 Exhibics 4, 5, 8, & 9 by deft. Filed
Feb. 23 Record on Appeal delivered to USCA: Deposi= by
Milton M. Burke $2.60 Filed
Feb. 23 Receipt from USCA for Original Record Filed
May 15 Seipulscion chat record on appeal incluie che
supplecernctal record Filed
May 15 Supplerencal record. Extract froa redutca® argucent
of Ceorge Hayes Esq. Jean Curtis Blais, Reporter,
Court's copy. Filed
May 15 Supplecental Record on Appeal delivered <2 CSCA:
Deposit by Milton M. Burke S0¢ Filed
. May 15 Receipt froc USCA for Supplemental recer2 _ Filed
1969
Aug. 13 Certified copy of judgzent of USCA affiz—=g judgzenc;
opinion attached Filed
Aug. 13 Bill of costs as taxed by clerk USCA i= s= of $659.21 Filed
Oct. 10 Transeictal sheet from USCA returning ori;izal record
to U.$.D.C (2 vols.-1 box transcripts «2 exhibics) Filed
Mov. 14 Request from USCA for return of case Filed
Nov. 17 Receipt from USCA for return of the orisésal and
: supplemental record for cranseittal cto che Suprere
Court File Filed
June 9 ‘Transmiccal shect from USCA returning eri sisal record
with one box of reporters transcrip=s a-/ exhibits
and original supplecenctal record and sezarters
transcripe. Tiled
June 29 Exhibits of plainciff one book, newspaper and one nenanape
disposed of per Executive Order $2-63 Filed
Oct. 26 Disposal of exhibits of defc. (one enve::ze) disposed
ef as for £0 $2-63 Filed
-6-
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.