Opposition Brief — Chetister v. Douglas

CASE NO. 86-1597

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

LAVAUN CHETISTER,

Petitioner,

V.

ANDY DOUGLAS, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

KATHLEEN McMANUS

Deputy Chief Counsel

DIANNE GOSS PAYNTER

Assistant Attorney General

Counsel of Record

State Office Tower

30 East Broad Street, 15th Floor

Columbus, Ohio 43266-0410

(614) 466-8831

COUNSEL FOR RESPONDENTS

eT Te <a ee ae ne ene nn ra a

COUNTERSTATEMENT OF THE QUESTION PRESENTED

MAY A PARTY TOASTATE COURT PROCEEDING COLLAT-

ERALLY ATTACK ADVERSE STATE APPELLATE COURT

JUDGMENTS BY FILING SUIT IN A UNITED STATES DIS-

TRICT COURT AGAINST THE STATE’S APPELLATE COURTS

AND THE APPELLATE COURT JUDGES WHO CONSIDERED

THE PARTY’S STATE COURT APPEALS?

ii

PARTIES

The petitioner is named in the caption of the case.

The respondents are: The Ohio Supreme Court; The Ohio

Court of Appeals for the Sixth District; Frank D. Celebrezze, for-

mer Chief Justice of the Ohio Supreme Court; Clifford F.

Brown, former Justice of the Ohio Supreme Court; the Honor-

able A. William Sweeney, Justice of the Ohio Supreme Court;

the Honorable Ralph S. Locher, Justice of the Ohio Supreme

Court; the Honorable Robert E. Holmes, Justice of the Ohio

Supreme Court; James P. Celebrezze, former Justice of the

Ohio Supreme Court; the late Justice William B. Brown, former

Justice of the Ohio Supreme Court; the Honorable Andy Doug-

las, formerly a Judge for the Ohio Court of Appeals for the Sixth

District and now a Justice of the Ohio Supreme Court; the

Honorable Alice Robie Resnick, Judge of the Ohio Court of

Appeals; and the Honorable Peter M. Handwork, Judge of the

Ohio Court of Appeals. Petitioner asserts that the individual

judges and justices are named in both their individual and

official capacities.

TABLE OF CONTENTS

PAGE

COUNTERSTATEMENT OF

bio pe pele he 2s oe i

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pe Vv

sh addkwhdsdnvadeseciones vii

STATEMENT OF CLAIMED JURISDICTION................ vii

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED .................. vii

pe a el! | a 1

SUMMARY OF ARGUMENT ................ccccccccccccccees 3

ee eerie gh ineknvesesscesacsessccadesss 4

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APPENDIX:

Oral Decision Of The State Trial Court... .......... A-1

Decision Of The State Court Of Appeals............. A-4

Petitianer’s Memorandum In Support Of Appeal

To Ine Ohio Supreme Court....................0. A-8

Order Of The Ohio Supreme Court Overruling

Petitioner's Motion To Certify ..................... A-32

ee

iV

TABLE OF CONTENTS cont'd

PAGE

Petitioner's Motion For Rehearing In The Ohio

ee on ecee rue ecaaatrsdonnseenexn A-33

Order Of The Ohio Supreme Court Denying

Petitioner’s Motion For Rehearing................ A-37

Se NG PIII Bs 5 can bavandenscacecdidensaancnas A-38

SR Ms MIN, OIE kd 0'0i52 bsicscdcwndevieessasdes A-38

A, Si, PI FIN oo aie oSewnsddsdeudedscaceesenns A-38

ee: TIER ic glidas cxkcadencaiinadsctetessaenaes A-40

i i iris icin sain anadde rannecondcoseanue A-40

Ohio Const. Art. IV, §2 (B) (2)............000.ce eee A-41

vt ee EE en re A-41

Ohio Sup. Ct. Rule of Practice ll, §2................. A-42

ee UE IE e530 00k canehapeaesadenasenbakcous A-42

TABLE OF AUTHORITIES

CASES PAGE

Chetister v. Chetister,

469 U. S. 805, 105 S. Ct. 62,

83 L.Ed. 2d 13 (1984), reh. denied 469 U. S. 1067,

105 S. Ct. 554, 83 L.Ed. 2d 440 (1984) ........00000000... 2,6

Chetister v. Douglas,

Case No. 86-3057 (6th Cir., Jan. 13, 1987) .............. 3,6

Chetister v. Douglas,

Case No. C84-8077

(N.D. Ohio, East Div., Jan. 10, 1986) ....................... 3

Chetister v. Chetister,

Case No. 84-336 (Ohio Sup. Ct., April 11, 1984),

PR SS WII a on bis ccc ac ccanpavassananacacaenscens 1

Chetister v. Chetister,

Case No. L-83-318

(Lucas County App., Feb. 3, 1984) ......................... 1

Chetister v. Chetister,

Case No. CV82-1161 (Lucas County

Common Pleas Court, Aug. 24, 1983) ..................... 1

District of Columbia Court of Appeals v. Feldman,

460 U. S. 462, 103 S. Ct. 1303, 75

ey MII 5. 3 oc ev heckiccascad ecanaacaen 5, 8, 9, 10

Haring v. Prosise,

462 U.S. 306, 103

S. Ct. 2368, 76 L.Ed. 2d 595 (1983).................... 13, 14

Kremer v. Chemica! Construction Co.,

456 U.S. 461, 102 S. Ct. 1883,

Fae Re EE I dics sn oac cum as acendacancacvetenauacs 14

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U.S. 387, 43 S. Ct. 422, 67 L.Ed. 712 (1923) ......... 5

Mondou v. New York, New Haven & Hartford Railroad Co.,

223 U.S. 1, 32 S. Ct. 169,

48 8 RR rer rrr ee rr ey 12

ei aaa ie

vi

TABLE OF AUTHORITIES cont'd

CASES PAGE

Rice v. Sioux City Memorial Park Cemetery,

349 U. S. 70, 75 S. Ct. 614,

i I foi seco dcvecdaasnctsdibencnsadeuatsnceess 4

Robinson v. Ariyoshi,

753 F.2d 1468 (9th Cir. 1985),

vacated sub nom. Ariyoshi v. Robinson,__ U.S. _—,

106 S. Ct. 3269, 91 L.Ed. 2d 560 (1986),

remanded sub nom. Robinson v. Ariyoshi, 796

Pe EE, CE riccccsecnssvecgeesnccnsessecdades 8,9

Rooker v. Fidelity Trust Co.,

263 U.S. 413, 44 S. Ct. 149,

ss cs accedeccsassasoccncnsansses 5, 8,9

Testa v. Katt,

330 U.S. 386, 67 S. Ct. 810,

Oe ss ucndeenaenahedbaepesnswepnctheias 12

Wood v. Orange County,

715 F.2d 1543 (11th Cir. 1983) .........00...0..200085. 10, 11

CONSTITUTIONAL PROVISIONS

U.S. Const., Art. VI, paragraph 2..... 22.0... 6 66 eee 12

Ohio Const. Art. IV, §2(B)(2)(a)fiii) ..... 00... 9,12

STATUTES

UIA, BOG aoa oes ic cecccceconciavecosanccessereenion 8, 13

AB UBG. SIGGB on ccciscccccccsccscccccccsccscccssesessasoscues 2

Chilo Rev. Code S2G06.20 ......ccrccccccccccccssccsscece 9,12

RULES OF COURT

I BAF accccnscrcinensenccacsesnvesnsendsanesituan 4

GS Sh: GE, FE SE PUROROD GE, GE cc ccccccsccctcccncssccascaa’ 1

SPU II, OR, THI csc bccccaccapccctnccseécnnccnsareddsediabas 1

vil

OPINIONS BELOW

The opinion of the United States District Court for the North-

ern District of Ohio dismissing plaintiff's complaint for failure

to state a claim upon which relief may be granted and for lack

of subject matter jurisdiction (Case No. C84-8077), which was

rendered on January 3, 1986, is unreported. The District

Court's decision is reproduced in the Petition for Certiorari at

pages A-21 to A-23.

The opinion of the United States Court of Appeals for the

Sixth Circuit affirming the judgment of the District Court (Case

No. 86-3057), which was rendered on January 13, 1987, is also

unreported and is reproduced in the Petition for Certiorari at

pages A-24 to A-28.

STATEMENT OF CLAIMED JURISDICTION

The decision of the United States Court of Appeals for the

Sixth Circuit was entered on January 13, 1987. Jurisdiction is

alleged pursuant to 28 U.S.C. Section 1254(1) and the Four-

teenth Amendment to the United States Constitution.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

This case involves the First, Eleventh, and Fourteenth

Amendments to the United States Constit:'tion; 42 U.S.C.

$1983; 42 U.S.C. §1988; Article IV, Section 2 of the Ohio

Constitution; Ohio Revised Code Section 2505.29: Ohio

Supreme Court Rule of Practice tI, §2; and Ohio Rule of Appel-

late Procedure 12(A), all of which are reproduced in the

appendix to this brief.

ee

STATEMENT OF THE CASE

in 1983, the Lucas County, Ohio Court of Common Pleas

directed a verdict against plaintiff (now petitioner) Lavaun

Chetister in a case she had filed alleging fraud in connection

with a real estate transaction. Chetister v. Chetister, Case No.

CV82-1161 (Lucas County C.P., Aug. 24, 1983). (See p. A-1).

The Common Pleas Court held that plaintiff's complaint was

barred by the doctrine of laches. :

The Ohio Court of Appeals for the Sixth Judicial District

affirmed the trial court’s judgment, finding that petitioner had

not established the elements of her cause of action in fraud.

Chetister v. Chetister, Case No. L-83-318 (Lucas County App.,

Feb. 3, 1984). (See p. A-4 to A-7).

Chetister then filed a notice of appeal to the Ohio Supreme

Court which, pursuant to Rule Il, Section 2 of the Rules of

Practice of the Ohio Supreme Court, that court treated as a

motion to certify since the memorandum supporting the

appeal did not contain constitutional claims. (See p. A-8 to

A-31). The Ohio Supreme Court overruled the motion to cer-

tify. Chetister v. Chetister, Case No. 84-336 (Ohio Sup. Ct.,

April 11, 1984). (See p. A-32).

Petitioner subsequently filed a motion for rehearing in

which she asserted, as her only constitutional claim, that the

Ohio Supreme Court had deprived her of equal protection

under the law because the Court had previously accepted

jurisdiction of appeals involving the interpretation of Ohio

Appellate Rule 12(A) (all errors assigned and briefed are to be

passed upon by the appellate court), but had refused to certify

her appeal which also raised questions regarding the interpre-

tation of Ohio Appellate Rule 12(A). (See p. A-33 to A-37). The

Ohio Supreme Court denied Chetister’s motion for rehearing.

Chetister v. Chetister, Case No. 84-336 (Ohio Sup. Ct., April 11,

1984) reh. denied May 9, 1984. (See p. A-38).

oe

Petitioner Chetister then filed a notice of appeal to this

Court. This Court dismissed petitioner's appeal for want of

jurisdiction, and, treating the appeal as a petition for certiorari,

denied certiorari. Chetister v. Chetister, 469 U.S. 805, 105 S.Ct.

62, 83 L.Ed. 2d 13 (1984). This Court later denied petitioner's

motion for rehearing. Chetister v. Chetister, 469 U.S. 1067, 105

S. Ct. 554, 83 L.Ed. 2d 440 (1984).

Chetister then filed a complaint in the United States District

Court for the Northern District of Ohio, naming as defendants

the Ohio Supreme Court, the Ohio Court of Appeals, and the

ten judges and justices sitting on those two courts who had

considered petitioner's state court appeals. (Petition for Certi-

Orari at pp. A-31 to A-56). In the District Court, petitioner

sought declaratory and injunctive relief as well as attorney

fees under 42 U.S.C. §1988 for respondents’ alleged violations

of petitioner's civil rights. Specifically, petitioner claimed that

the Ohio Court of Appeals had violated her constitutional

rights by grounding its affirmance of the state trial court's

judgment on petitioner's failure to establish the elements of a

cause of action in fraud, rather than upon the doctrine of

laches, the basis for dismissal articulated by the state trial

court. Petitioner claimed the Ohio Supreme Court had violated

petitioner's constitutional right to petition the courts for re-

dress of grievances and had deprived her of her right to due

process by refusing to accept jurisdiction of her state court

appeal. Plaintiff had not mentioned her due process rights or

her right to petition the courts for redress of grievances in her

state court appeals or in her motion for rehearing in the Ohio

Supreme Court. (See pp. A-8 to A-31; A-33 to A-37).

The United States District Court adopted the Report of the

Magistrate to whom the case had been referred and held that

tne U.S. District Court did not have subject matter jurisdiction

over petitioner's complaint since petitioner sought to collater-

ally attack a state court judgment. The District Court also held

that the complaint failed to state a claim upon which relief

could be granted and granted respondents’ motion to dismiss.

Chetister v. Douglas, Case No. C84-8077 (N.D. Ohio, East. Div.,

Jan. 10, 1986). (See Petition for Certiorari, at pp. A-21 to A-23).

Petitioner Chetister then filed a timely notice of appeal to the

United States Court of Appeals for the Sixth Circuit which had

“no difficulty in concluding that the district court acted prop-

erly in dismissing Chetister’s complaint.” (Chetister v. Doug-

las, Case No. 86-3057 (6th Cir., Jan. 13, 1987). (See Petition for

Certiorari, at p. A-27). The Sixth Circuit Court of Appeals held

that petitioner was, in reality, seeking review of the state

courts’ decisions in a federal district court and that federal

district courts clearly do not have jurisdiction to hear appeals

from state court decisions or collateral attacks upon state

court judgments.

After the United States Court of Appeals for the Sixth Circuit

affirmed the District Court's dismissal of petitioner's com-

plaint, petitioner filed her petition for a writ of certiorari in this

Court.

SUMMARY OF ARGUMENT

Petitioner has received and fully taken advantage of all of

the process which is her due. She has vigorously exercised

her right to petition the courts for redress of grievances.

Petitioner's federal court complaint against the state appel-

late courts and judges who considered her state court appeals

is completely unwarranted and insupportable. Under well-

established principles of law which have been considered

and articulated over the years by this Court, the lower federal

courts clearly did not have jurisdiction to hear petitioner’s

collateral attack upon the state appellate courts’ judgments.

This fundamental tenet of our nation’s dual court system so

clearly applies to bar plaintiff's federal court complaint that no

real or substantial question could even arguably be presented

by her petition for certiorari.

Furthermore, the cases petitioner claims are in conflict with

the Sixth Circuit's opinion in this case are not remotely appo-

site, nor are they logically or theoretically in conflict with the

Sixth Circuit’s opinion.

ARGUMENT

I

PETITIONER HAS NOT ASSERTED SPECIAL AND

IMPORTANT REASONS INDICATING THAT THIS

COURT SHOULD EXERCISE ITS DISCRETION BY

GRANTING THE PETITION FOR A WRIT OF

CERTIORARI.

This Court's rules provide that “[a] review on writ of certio-

rari is nota matter of right, but of judicial discretion, and will be

granted only when there are special and important reasons

therefor.” Sup. Ct. R. 17.1.

The standards governing this Court's discretionary power

of review upon writ of certiorari are well-established and of

long standing. This Court “does not sit to satisfy a scholarly

interest in [federal questions] .... Nor does it sit for the benefit

of the particular litigants .... ‘Special and important reasons’

imply a reach to a problem beyond the academic or the epi-

sodic.” Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

70, 74, 75 S. Ct. 614, 616, 99 L.Ed. 897, 90% (1955) (citations

omitted). In 1923, this Court framed the following standard:

[I]t is very important that we be consistent in not

granting the writ of certiorari except in cases involv-

ing principles the settlement of which is of impor-

tance to the public, as distinguished from that of the

parties, and in cases where there is a real and

embarrassing conflict of opinion and authority be-

tween the Circuit Courts of Appeals.

Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S.

387, 393, 43 S. Ct. 422, 423, 67 L. Ed. 712, 714 (1923).

Petitioner's case presents claims already decided by this

Court against petitioner's position in Rooker v. Fidelity Trust

Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 2d 362 (1923); District

of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 1303

S. Ct. 103, 75 L.Ed. 2d 206 (1983), and other cases which

clearly establish that state court judgments cannot be collat-

erally attacked by filing suit against the state court judges in

federal district courts. Such collateral attacks are, for many

reasons, not favored; they are an affront to our nation’s dual

court system. Petitioner's case presents no novel questions

which have been left unanswered by Rooker, Feldman, and

the other cases relied upon by the lower federal courts in

finding that the district court did not have jurisdiction to hear

plaintiff's collateral attack.

In noting that only this Court has jurisdiction to hear appeals

from judgments of state supreme courts, the Sixth Circuit

Court of Appeals stated:

We have no difficulty in concluding that the dis-

trict court acted properly in dismissing Chetister’s

complaint. We wholeheartedly agree with the obser-

vations of the magistrate, whose views were adopted

by the district court, that:

[p]laintiff, by arguing that defendants uncon-

stitutionally applied the Ohio statutes in ques-

tion, is in reality seeking review of a state court

by a federal district court. District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462

(1983). The Supreme Court held in Feldman

that United States district courts ‘do not have

jurisdiction ... over challenges to state court

decisions in particular cases arising out of

judicial proceedings even if those challenges

6

allege that the state court’s action was uncon-

Stitutional.’ /d. at 486. If a competent state court

having jurisdiction has rendered judgment,

and the case has been appealed through the

state court system, then the only avenue for the

correction of constitutional errors is to the

appellate jurisdiction of the Supreme Court.

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).

Jt. App. p. 36.

On authority of Feldman, supra, this court has also

previously made clear that the district court lacks juris-

diction to review a decision of the Ohio Supreme Court

even if the appellant raises federal constitutional issues.

Johns v. The Supreme Court of Ohio, 753 F.2d 524, 527

(6th Cir.), cert. denied, 106 S.Ct. 79 (1985).

Chetister v. Douglas, Case No. 86-3057 (6th Cir., Jan. 13,

1987). (See Petition for Certiorari, at pp. A-27 to A-28).

This Court has, in fact, already exercised its appellate juris-

diction and denied review of this case. After the Ohio Court of

Appeals affirmed the state trial court's directed verdict against —

petitioner and the Ohio Supreme Court refused to take juris-

diction, petitioner filed an appeal to this Court. This Court

dismissed the appeal, refused to grant a writ of certiorari, and

denied petitioner's motion for rehearing. Chetister v. Chetister,

supra, 469 U.S. 805, 105 S. Ct. 62, 83 L.Ed. 2d 13; Chetister v.

Chetister, supra, 469 U.S. 1067, 105 S. Ct. 554, 83 L.Ed. 2d 440.

Thus, the constitutional allegations petitioner set forth in her

complaint to the U.S. District Court concerning the state

courts’ denial of her constitutional rights have already been

presented to this Court, or should have been presented in her

first petition. This Court previously refused to exercise its

discretion to accept jurisdiction over petitioner’s claims.

Respondents assert that petitioner did not present special and

important reasons justifying her petition when she last peti-

tioned this Court to grant a writ of certiorari and that, as the

state court proceedings attacked by petitioner were fully con-

cluded before petitioner last petitioned this Court, the claims

which allegedly support the petition remain the same. This

Court should once again refuse to grant the petition for a writ

of certiorari.

ll

NONE OF THE CASES RELIED UPON BY PETI-

TIONER TO ESTABLISH A CONFLICT BETWEEN

THE CIRCUIT COURTS EVEN ARGUABLY CON-

FLICTS WITH THE SIXTH CIRCUIT’S OPINION IN

THIS CASE.

A -

THE SIXTH CIRCUIT’S OPINION IN THIS CAS

DOES NOT CONFLICT WITH ROBINSON V.

ARIYOSHI.

Petitioner alleges, on pages 5 and 6 of her petition, that the

Sixth Circuit’s opinion conflicts with Robinson v. Ariyoshi, 753

F. 2d 1468 (9th Cir. 1985).

Respondents first note that the Ninth Circuit’s opinion in

Ariyoshi was vacated by this Court on June 23, 1986. /d.,

vacated and remanded sub nom. Ariyoshi v. Robinson, ——

U.S. __. 106 S. Ct. 3269, 91 L.Ed. 2d 560 (1986). See also

Robinson v. Ariyoshi, 796 F. 2d 339 (9th Cir. 1986) (remanded

to district court). The Sixth Circuit’s opinion cannot possibly

be in conflict with the opinion of the Ninth Circuit which was

vacated before the Sixth Circuit issued its opinion.

The Ninth Circuit's 1985 opinion in Robinson v. Ariyoshi is,

nonetheless, distinguishable from the present case. Ariyoshi

was an action filed under 42 U.S.C. §1983 to enjoin state

Officials from taking action to enforce a state court judgment

which threatened to divest plaintiffs of certain irrigation water

rights. The Ninth Circuit's 1985 opinion discussed District of

Columbia Court of Appeals v. Feldman and Rooker v. Fidelity

Trust Co., which the Sixth Circuit relied on in the present case

in holding that federal district courts do not have jurisdiction to

hear appeals from state courts or collateral attacks upon state

court judgments. The vacated Ariyoshi opinion distinguished

Rooker and Feldman, however, by noting that, in Ariyoshi, the

state supreme court flatly refused to consider the federal

claims. Robinson v. Ariyoshi, 753 F.2d at 1472. Since the

federal claims could not possibly have been litigated in the

state courts, the Ninth Circuit refused to apply the Rooker and

Feldman principles as a bar to the federal suit. /d. at 1473.

The situation in Ariyoshi is clearly distinguishable from

Chetister’s situation. The Ohio Supreme Court did not refuse

to consider federal claims. Rather, the Ohio Supreme Court

clearly would have had jurisdiction to hear petitioner's federal

constitutional claims if petitioner had, at any time, asserted

them. See Ohio Const., Art. IV, §2(B)(2)(a)(iii) and Ohio Rev.

Code §2505.29 (appeal as of right in cases involving questions

arising under the U.S. Constitution). Petitioner did not, how-

ever, assert any constitutional claims in her memorandum

supporting her appeal to the Ohio Supreme Court (see pp. A-8

to A-31) and she cannot now rely upon that oversight to argue

that the Ohio Supreme Court erred in failing to divine her

later-conceived intent to assert constitutional claims.

Robinson v. Ariyoshi, having been vacated by this Court,

cannot be in conflict with the Sixth Circuit's ruling in this case.

Furthermore, Ariyoshi presents no conflict even if the Court

disregards for the sake of argument the fact that the 1985

Ariyoshi opinion has been vacated.

10

B

THE SIXTH CIRCUIT’S OPINION IN THIS CASE

DOES NOT CONFLICT WITH WOOD V.

ORANGE COUNTY.

Petitioner next contends that the Sixth Circuit's opinion

conflicts with Wood v. Orange County, 715 F. 2d 1543 (11th Cir.

1983). In her reply brief in the Sixth Circuit, petitioner argued

that the Wood case, although not controlling in the Sixth

Circuit, compelled a different result than that reached by the

District Court.

Wood is clearly distinguishable. In Wood, plaintiffs alleged

that their due process rights had been violated when liens for

the value of legal services rendered by the county public

defender’s office were entered against plaintiffs following the

conclusion of criminal cases against plaintiffs. The Eleventh

Circuit Court of Appeals held that, since the liens were

imposed following the conclusion of the state criminal cases,

petitioners never had an opportunity to present their due pro-

cess Claims regarding the imposition of the liens during the

state court litigation. Their due process claims did not arise

until the liens were imposed after the state court cases had

concluded and the judgments were final. Wood v. Orange

County, 715 F.2d at 1548.

The opinion in Wood actually approves the holding in Fe/d-

man, and states that:

Feldman, moreover, indicates that the Rooker bar

also operates where the plaintiff fails to raise his

federal claims in state court... . “By failing to raise

his claims in state court a plaintiff may forfeit his right

to obtain review of the state court decision in any

federal court.” [Fe/ldman,] _— U.S. at __ n. 16, 103

S.Ct. at 1315 n. 16, 75 L.Ed. 2d at 223 n. 16.

Wood v. Orange County, 715 F.2d at 1546-1547.

11

This is exactly the situation presented by the instant case.

Wood, in which the plaintiffs did not have an opportunity to

present their constitutional claims in the state court, is distin-

guishable from the instant case wherein petitioner, when

presented with the opportunity to assert her federal claims in

the state court proceedings, neglected to do so.

12

Cc

THE SIXTH CIRCUIT’S OPINION IN THIS CASE

DOES NOT CONFLICT WITH TESTA V. KATT

OR WITH MONDOU V. NEW YORK, NEW

HAVEN & HARTFORD RAILROAD CO.

Petitioner next asserts, on pages 8-10 of her petition for

certiorari, that the Sixth Circuit's opinion in this case conflicts

with this Court's holdings in Testa v. Katt, 330 U.S. 386, 67 S.

Ct. 810, 91 L.Ed. 967 (1947) and Mondou v. New York, New

Haven & Hartford Railroad Co., 223 U.S. 1, 32 S. Ct. 169, 56

L.Ed. 327 (1912). in both Testa and Mondou, state courts had

declined to enforce federal laws since the states had “poli-

cies” against enforcing the laws of other jurisdictions. This

Court held that, due to the Supremacy Clause of the U. S.

Constitution (Art. VI, paragraph 2), the states’ “policies” were

not valid excuses for failing to enforce federal statutes. Testa

and Mondouare clearly inapposite to the present case and are

not in conflict with the Sixth Circuit’s opinion. The Ohio

Supreme Court did not assert that it had a policy against

enforcing federal constitutional rights; the Ohio Supreme

Court clearly does not have such a policy. See Ohio Const.,

Art. IV, §2(B)(2)(a)(iii); Ohio Rev. Code §2505.29. Petitioner

never raised or asserted any federal corstitutional claims in

her state court appeals. (See, e.g., pp. A-8 io A-31). If she had

not neglected to present these claims, she would have had an

appea! as of right to the Ohio Supreme Court. /d.

13

D

THE SIXTH CIRCUIT'S OPINION IN THIS CASE

DOES NOT CONFLICT WITH HARING V.

PROSISE.

Petitioner next asserts, at pages 10-11 of her petition, that

the Sixth Circuit's opinion conflicts with this Court's judgment

in Haring v. Prosise, 462 U.S. 306, 103 S. Ct. 2368, 76 L.Ed. 2d

595 (1983). The issue in Haring was whether a guilty plea ina

criminal case bars a later 42 U.S.C. §1983 action against the

arresting officers. This Court held that, in determining whether

the prior state court judgment should be given preciusive

effect, the federal courts should determine whether the state

courts would give the judgment preclusive effect under state

law. This Court found that, under Virginia law, a guilty pleaina

criminal case would not be given preclusive effect. Since

Virginia would not invoke collateral estoppel as a bar to a later

case, this Court determined that the guilty plea did not fore-

close plaintiff from litigating the civil rights action regarding

the constitutionality of the search.

Haring has absolutely no bearing on the present case.

Neither res judicata nor collateral estoppel was asserted as a

defense by respondents in the Sixth Circuit. As a matter of fact,

respondents determined that Ohio law on the preclusion

issue, while not entirely settled, appeared to require identity of

the parties in the two cases. Since respondents were not

parties to petitioner's state court case, respondents did not

pursue the argument that res judicata barred petitioner's suit.

Since neither the District Court nor the Sixth Circuit held that

the doctrine of res judicata «: ‘ollateral estoppel barred peti-

tioner’s suit (see Petition for Certiorari, pp. A-21 to A-28), the

opinion and decision in Haring, supra, are inapposite to this

case. This Court's decision in Haring does not conflict with the

Sixth Circuits’ opinion since the two cases deal with different

issues and different legal principles.

14

E

THE SIXTH CIRCUIT’S OPINION IN THIS CASE

DOES NOT CONFLICT WITH KREMER V.

CHEMICAL CONSTRUCTION CO.

As her final attempt to allege a “real and embarrassing

conflict” between federal cases, petitioner alleges, on pages

11-13 of her petition, that the Sixth Circuit’s opinion in this

case conflicts with this Court's opinion in Kremer v. Chemical

Construction Co., 456 U.S. 461, 102 S. Ct. 1883, 72 L.Ed. 2d 262

(1982).

Kremer, like Haring, supra, dealt with the federal courts’ duty

to give full faith and credit to state court judgments by accord-

ing preclusive effect to state court judgments to the same

extent that a state court would give the judgment preclusive

effect. Once again, respondents point out that they did not

allege that petitioner's federal suit was barred by the doctrines

of res judicata or collateral estoppel, nor did either of the

federal courts below rely upon these legal theories in denying

petitioner relief. (See Petition for Certiorari, pp. A-21 to A-28).

Kremer’s holding, that a state court judgment may not, con-

sistent with due process, be given preclusive effect unless the

state court proceedings give the plaintiff a full and fair oppor-

tunity to litigate his claims, is simply irrelevant to this case in

which no state court judgment was ever given preclusive

effect. The following comments in Kremer are, however, appli-

cable to this case in support of respondents’ position: “We

have little doubt that Kremer received all the process that was

constitutionally required .... The fact that Mr. Kremer failed to

avail himself of the full procedures provided by state law does

not constitute a sign of their inadequacy.” Kremer v. Chemical

Construction Co., supra, at 483, 485, 102 S. Ct. at 1898, 1899,

72 L.Ed. 2d at 281, 282.

¢

ws

a ee

15

CONCLUSION

Petitioner has submitted no special and important reasons

indicating that this Court should grant her petition for certio-

rari, nor has she presented any real conflicts between the

federal courts which this Court might wish to resolve for the

benefit of the public. Rather, petitioner, who neglected to

present her constitutional claims to the Ohio courts wher. she

had the opportunity to do so, once again petitions this Court in

an attempt to rectify ordinary errors or omissions, not of consti-

tutional dimensions, which she made in the presentation of

her state court appeals. Petitioner has received all of the

process which is her due under well-established principles of

law and has fully exercised her right to petition the courts. The

petition for a writ of certiorari should be denied.

Respectfully submitted,

ANTHONY J. CELEBREZZE, JR.

Attorney General

KATHLEEN McMANUS

Deputy Chief Counsel

DIANNE GOSS PAYNTER

Assistant Attorney General

Counsel of Record

State Office Tower - 15th Floor

30 East Broad Street

Columbus, Ohio 43266-0410

(614) 466-8831

COUNSEL FOR RESPONDENTS

A-1

APPENDIX A

TRANSCRIPT OF ORAL DECISION OF STATE TRIAL COURT

to get title because she signed the mortgage. She's admitted

that nobody told her she was going to have the house, and |

don't think you can hold my client responsible because of

something she thought.

MR. DONNELL: Mr. Wittenberg, she didn’t give a mort-

gage. He took title, and then she gave a mortgage to SBA with

your client for $18,659. No. He took title. She had to -- or she

couldn't have given a mortgage on it. When she signed the

mortgage, she was titled, and quitclaim deed took her off the

title. That is fact.

THE COURT: Well, all right. As to the cause of action for

damages for the carpeting and the freezer repair and the

lawnmower and bcokcases, whatever items were paid for in

Exhibits 6 through 13, | am granting the motion for directed

verdict, | think, for several reasons. First of all, there is no

contention that there was any written or verba! contract in

which the Defendant was indebted to the Plaintiff for these

amounts.

Secondly, the action is predicated on a fraud. If she thought

that there was fraud, she should have known it the day in

August when she left that house and should have made her

claim. If there was fraud evident to her, it was then, and she’s

brought no action until apparently May of 1982.

In addition, there is a lot of case law that applies to the

equitabie doctrine of laches and estoppel to non-equitable

cases. If there is a case in which it should be applied, this is

one.

As to the other cause of action, parties have already agreed

that there shall be a lien placed upon the real estate of the

A-2

Defendant and in favor of the Plaintiff in an amount equal to

any deficiency she might suffer in the future for foreclosure of

the mortgage, sale of the property or loss to the property by

casualty.

In addition, it is agreed and is ordered that the Defendant

shall keep the property insured in an amount not less than the

pay-off, principal and inierest on this mortgage and shall see

through his insurance agent that the Plaintiff receives amem-

orandum copy of that policy.

It's also ordered that the lien of the Plaintiff shall be extin-

guished upon the release and satisfaction of this mortaage of

April 2, 1974, to the Small Business Administration. That's the

order of the Court. Now, let’s send the jury home.

(End of proceedings in chamber.)

4:32 p.m.

THE COURT: Ladies and gentlemen of the jury, your ser-

vices in this case will no longer be necessary because the

Court has disposed of this case as a matter of law. And for

reasons that will more fully have been set out on the record,

the Court has ordered that as to the claim of the Plaintiff for the

damages; that is, for carpeting and the freezer seal and the

lawnmower and bookcases and whatever else, that that claim

is barred by the statute of limitations and by the doctrine of

laches; and that is, the claim was not brought soon enough,

and therefore is not justiciable at this time.

As to the matter of signature on the mortgage the Court has

ordered and the parties have agreed that because the only

damage the Plaintiff could suffer as a result of that mortgage

would be a deficiency judgment in case of foreclosure or

casualty loss or, | suppose, sale, and that because she has not

A-3

present damage as a result of that, that there is a lien placed on

the Defendant's property in whatever amount any deficiency

loss the Plaintiff may suffer due to foreclosure or casualty loss.

The Court also ordered that the Defendant maintain casu-

alty insurance on the property in an amount not less than the

pay-off of both the principal and interest to the mortgage and

that such insurance policy be -- by the way, I’m told that he

has, but we're formalizing this in a court order -- that such

policy or memorandum copy of that be filed or be given to the

Plaintiff.

The Court has further ordered that any lien in favor -- or that

this lien in favor of the Plaintiff would be extinguished upon

release and satisfaction of the mortgage to the Small Business

Administration. The cause is dismissed. You are excused. |

would like to talk to you for a moment, if you'd wait in the jury

room.

Counsel for the Defendant will journalize, and this matter is

dismissed at Plaintiff's costs. I'll be with you shortly

(Proceedings concluded at 4:35 p.m.)

A-4

APPENDIX B

COURT OF APPEALS OF OHIO, SIXTH DISTRICT

C. UNTY OF LUCAS

C. A. NO. L-83-318

Lavaun Chetister APPEAL FROM

APPELLANT LUCAS COUNTY COMMON

PLEAS COURT

V. No. CV 82-1161

James G. Chetister, et. al.

APPELLEES DECISION AND

JOURNAL ENTRY

DATE: February 3, 1984

(Filed February 3, 1984, Lucas County Court of Appeals)

This cause came on to be heard upon the record in the trial

court. Each assignment of error was reviewed by the court and

upon review the following disposition made:

This is an appeal from the Court of Common Pleas of Lucas

County, Ohio. On August 24, 1983, the court granted appel-

lees’ motion for a directed verdict as to appellant's cause of

action for damages. On September 1, 1983, appeliant filed a

motion for a new trial. On September 16, 1983, such motion

was overruled.

From these judgments, appellant, Lavaun Chetister, filed a

timely appeal, stating the following assignments of error:

“1. The court erred in granting the motion of

defendant-appellee for a Directed Verdict pursuant

to Civ. R. 50(A)(4).

A-5

2. The judgment is contrary to law.”

Because of similarity of content, appellant's first and second

assignments of error will be considered together. Appellant

contends, in essence, that the alleged fraudulent acts of the

appellees induced her to inadvertently sign a quitclaim deed.

In the case of Friediand v. Lipman (1980), 68 Ohio App. 2d

255, at the first paragraph of the syllabus, the court determined

that a claim of common law fraud requires proof of a represen-

tation or concealment of a fact which is material to a transac-

tion, is made with knowledge of its falsity or with utter disre-

gard for its veracity, with the intention of misleading another

into justifiably relying upon it and which reliance is the proxi-

mate cause of the plaintiff's injury.

The record in this case reveals that the appellant failed to

present any evidence as to any of the elements noted in

Lipman, supra. Appellant admitted upon cross-examination

that no one had represented to her that the quitclaim deed she

signed was a mortgage paper. She had just assumed that the

deed was a loan paper presented for her signature. Appellant

further testified that no one ever told her that half of the real

property located at 8650 Arquette Road, Oregon, Ohio,

belonged to her.

Appellant further admitted at trial that she had had the pres-

ent ability and the opportunity to read all of the documents

which she signed on the date in question, but that she had, of

her own volition, neglected to do so. In Dice v. Akron, Canton &

Youngstown Rd. Co. (1951), 155 Ohio St. 185, the Supreme

Court made the following determination with regard to a per-

son's volitional omission to read a legal paper before signing

it:

“A person of ordinary mind cannot say that he was

misied into signing a paper which was different from

what he intended to sign when he could have known

A-6

the truth by merely looking when he signed. DeCamp

v. Hamma, Exr., supra (29 Ohio St. 467), 471, 472. If

this were permitted, contracts would not be worth

the paper on which they are written. If a person can

read and is not prevented from reading what he

signs, he alone is responsible for his omission to

read what he signs. * * *”Dice v. Akron, Canton &

Youngstown Rd. Co., supra, at 191, rev'd. on other

grounds, (1952) 342 U.S. 359.

Cf. Leedy v. Elisworth Construction Co. (1966), 9 Ohio App.

2d 1, wherein the court determined that:

“2. A signer of a mortgage, who is of ordinary mind

and can read and is not prevented from reading

whathe signs and who signs an instrument which is,

in fact, amorigage and denominated as such there-

on, is negligent in signing such paper without read-

ing it and does not have a defense thereto on the

ground of fraud by claiming that the paper he signed

was something other than what it actually was.”

(Emphasis added.)(See second paragraph of the

syllabus.)

Clearly, when the evidence adduced at trial is construed

most strongly in favor of the appellant, reasonable minds can

only conclude that, based upon the evidence submitted,

appellant has failed to prove all the elements necessary to

establish a cause of action for fraud.

Pursuant to Civ. R. 50(A)(4), we find that the trial court prop-

erly granted the motion for a directed verdict and that said

decision is not contrary to law. Having so determined, we will

not consider the issue of the statute of limitations. For these

reasons, appellant’s assignments of error Nos. 1 and 2 are

found not well taken.

A-7

On consideration whereof, the court finds that substantial

justice has been done the party complaining, and judgment of

the Court of Common Pleas of Lucas County is affirmed. This

cause is remanded to said court for execution of judgment and

assessment of costs.

Costs to appellant.

A certified copy of this entry shall constitute the mandate

pursuant to Rule 27 of the Rules of Appellate Procedure. See

also Supp. R. 4, amended 1/1/80.

Andy Douglas

PRESIDING JUDGE

Peter M. Handwork, and

JUDGE

Alice Robie Resnick, JJ.,

CONCUR. JUDGE

A-8

APPENDIX C

IN THE SUPREME COURT OF OHIO

Lavaun Chetister, : Supreme Court No. 84-336

Plaintiff-Appellant,

: C.A. No.-L 83-318 (Lucas

Vv : County) (SIXTH APPEALS)

James G. Chetister, : C.P. NO.-82-1161

Defendant-Appellee.

MEMORANDUM

in

SUPPORT OF CLAIMED JURISDICTION OF SUPREME COURT

of

Appellant LaVaun Chetister

(filed February 24, 1984 in the Ohio Supreme Court)

Walton H. Donnell

Counsel for Plaintiff-Appellant

139 East Court Street

P.O. Box 733

Bowling Green, Ohio 43402

Telephone: (419) 352-2616

Charles S. Wittenberg

Counsel for Defendant-Appellee

SILVERMAN, GORMAN, WITTENBERG & WITTENBERG

Suite 540 Spitzer Building

Toledo, Ohio 43604

Telephone: (419) 243-3261

A-9

TABLE OF CONTENTS

TABLE OF AUTHORITIES, does not exceed 12 PAGES

I OM oo koe is aie ccicg ss ccccesbaesssssnscn 1-2

I I GOD oie cc ccc enc ivesnsevensicecsses 3-4

aa alle sa0 ddan ca wedvabsvasdearcecases 5-14

Proposition of Law No. 1: In an appeal from a trial court’s

directed verdict to a court of appeal, where reviewing court

sustains the trial court for a reason or reasons other than those

written into the entry or dictated into the record and argued

separately by appellant in her brief, and where reviewing court

does not first pass upon the basis of the decision set forth and

argued by appellant in her brief, the court of appeals commits

an irregularity in obtaining judgment on review and it shall be

vacated. (Rule 12(A) of the Rules of Appellate Procedure

construed and harmonized with Civil Rule 50(E).)

Proposition of Law No. 2: The significant purpose of Civil

Rule 50(E) is to enable a party to challenge the trial court's

ruling on.appeal, and where the court of appeals intends to

sustain the trial court’s ruling upon a reason or reasons other

than those stated in writing by the trial court and argued

separately by appellant in her brief, it shall, before rendering

its decision, notify the appellant of its reason or reasons and

allow appellant ten (10) additional days to respond to them,

and this written response shall be considered by the court of

appeals before it shall render its decision in the case. (Rule

12(A) of the Rules of Appellate Procedure amended accord-

ingly and submitted by the Supreme Court to the General

Assembly on and shall take effect on

)

Proposition of Law No. 3: In a motion for a directed verdict

timely made and in the proper form, and where the plaintiff

A-10

gives conflicting evidence in support of any or all elements of

her case, nonetheless, the trial court shall not grant a directed

verdict since determing whether reasonable minds could

come to but one conclusion upon the evidence submitted

does not involve any weighing of the evidence nor is the court

concerned with the credibility of witnesses. (Ruta v. Breck-

enbridge-Remy Co. (1982), 69 Ohio St.2d 66 followed.)

Proposition of Law No. 4: Upon a motion for a directed

verdict, neither the reviewing court or the trial court is permit-

ted to select those portions of the evidence it will consider or

consider the credibility of the witness giving it.

Proposition of Law No. 5: In a motion for a directed verdict

where every element of plaintiff's case is supported by direct

proof or evidence upon which a reasonable inference may be

predicated to support each such element, and though the

state of the evidence reveals conflicting testimony, it is the

jury, and notthe trial court or reviewing court, who is entitled to

believe all or part of the testimony of any witness. (Cothey v.

Jones-Lemley Trucking Co., 176 Ohio St. 342 followed.)

Proposition of Law No. 6: Upon a motion for a directed

verdict, a trial court shall examine the materiality of the evi-

dence as it relates to the elements of the case, as opposed to

the conclusions to be drawn from the evidence, and this

applies to the reviewing court.

Proposition of Law No. 7: The determination concerning

what constitutes a confidential (fiduciary) relationship is a

question of fact dependent upon the circumstances in each

case,

and where one with an eighth-grade education is induced to

sign a quitclaim deed without reading it and without knowing it

was a quitclaim deed and believing it was aloan paper under a

pile of loan papers in reliance on the other party’s statement

that the papers to be signed were loan papers, and where the

A-11

the two parties had a long period of marriage followed by a

divorce that was followed quickly by a discussion about get-

ting back together again, which was quickly followed by their

joint signing of amortgage deed and note for a house in which

both cohabited thereafter for a period of over four months

during which the relying party paid for and had installed wall to

wall carpeting in two rooms and a hallway and paid for

hundreds of dollars of other improvements to the house, the

relying party has the right to have a jury determine the issues

as to whether or not there was a confidential relationship,

whether or not there was fraud, and the amount of money

damages, if any. (Stone v. Davis (1981), 66 Ohio St.2d 74

followed; /ndermill v. United Savings (1982), 5 Ohio App.3d

243 approved.)

PROPOSITIONS OF LAW, WITH AUTHORITIES AS THEY

PP PRIETO PTARINE io oics ccs ccssndstcsssenseneuntes 9, 9, 13

CPI sch oun ev is anakilorsakextausuuacseaeseaneenuan 14

PU Sr UR ins cee cascvdusssneatetsepanaaeaeueanen 31

i EET POO ETOP TESTE CREEP ES Rr Te ey: 15-31

1. STATEMENT OF THE CASE:

A. Nature of The Case:

This is a civil case in fraud, and comes before this Court

pursuant to an affirmance by the Sixth Court of Appeals of a

directed verdict judgment granted by the Honorable Richard

McQuade, Judge, Common Pleas Court of Lucas County,

pursuant to Civ.R 50, on August 21, 1983.

Plaintiff-appellant Lavaun Chetister amended her

complaint once, eliminating her demand for a recision of an

alleged 1974 quitclaim deed fraudulently obtained from her by

her ex-husband and defendant-appellee herein, James G.

Chetister. Case originally filed May 12, 1982.

A-12

Her amended complaint prayed only for $4,600.00 in com-

pensatory damages and $20,000.00 punitive damages and

her costs. A jury demand was endorsed thereon.

B. PROCEEDINGS AND PROCEDURAL DISPOSITION

BELOW:

Trial was first scheduled for March 16, 1983, before the

Honorable Bruce Huffman, Judge, but was continued by the

court. Subpoenas were cancelled.

The next scheduled trial date was May 13, 1983, but again

was continued by the court. Again, plaintiff notified witnesses

of events.

Finally, after almost five months of court-imposed delays,

plaintiff's case in fraud reached a jury of her peers on August

3, 1983. Plaintiff called four witnesses and hereself and

placed twenty exhibits into evidence, and rested her case in

chief. it was almost four o'clock in the afternoon.

Trial Judge Richard McQuade called counsel into chambers

and asked if anyone had motion to make. Defendant-appellee’s

counsel moved for a directed verdict. It was grantec, and the

trial judge immediately dictated into the record three (3) rea-

sons for the basis of his decision:(1) “No written or verbal

conitract in which Defendant was indebted to the Plaintiff’, (2)

Statute of limitations:"If she thought there was fraud, she

should have known it the day in August (1974) when she left

that house and should have made her claim. If there was fraud

evident to her, it was then, and she’s brought no action until

apparently May of 1982”, and (3) Laches:"In addition, there is

a lot of case law that applies to the equitable doctrine of

laches and estoppel to non-equitable cases. If there is a case

in whee it should be applied, this is one.”

Plaintiff-appellant timely filed a Motion For A New Trial. This

was denied in a judgment entry filed September 16, 1983.

A-13

Plaintiff-appellant timely filed a Notice of Appeal to the Sixth

Court of Appeals sitting in Lucas County, and timely followed

this with her brief that listed, not once but twice, the three

reasons given by the trial court for its directed verdict pursu-

ant to Civ.R 50(E). The trial court’s reasons for the directed

verdict were set forth in plaintiff-appellant’s brief by direct

quotes from the record at the beginning of her argument and

during her argument. (Transcript of triai, pp. 142-143, see

Appendix, pp. 29, 30).

What did the Sixth Court of Appeals do or say about the

three (3) reasons given by the trial court for the directed

verdict, and separately argued by plaintiff-appellant in her

brief?

Nothing. Absolutely nothing. In a unanimous decision writ-

ten by the Honorable Andy Douglas, Presiding Judge, the

Sixth Court of Appeals did not pass upon the three reasons

given by the trial judge and argued by appellant separately in

her brief.

Instead, it came up with a reason peculiar to itself:

“(A)ppellant has failed to prove ail the elements

necessary to establish a cause of action for fraud.

“Pursuant to Civ. R. 50(A)(4), we find that the trial

court properly granted the motion for a directed

verdict and that said decision is not contrary to law.

Having so determined, we will not consider the

issue of the statute of limitations. For these reasons,

appellant's assignments of error Nos. 1 and 2 are

found not well taken.”

(Lines 14-19, Decision and Journal Entry filed Feb-

ruary 3, 1984, see Appendix, p. 20).

A-14

C. STATEMENT OF FACTS: —_.

To keep distortion to a minimum, appellant will quote facts

directly from the transcript of the trial:

in Area Of Confidential Relationship:

Appellant Lavaun Chetister testified: “I went all the way

through my eighth grade and December of my ninth (sic)

grade” (T-71, 3-5); married to defendant-appellee James

Chetister for “twenty-six years.” (T-63,21-22); obtained a

divorce “February 13th, 1974” (T-66,1-2); in March of 1974

James Chetister went to Lavaun’s apartment in Perrysburg in

the evening hours and talked to Lavaun about “getting back

together again”. (T-67, 9-17).

in Area of (a) a representation (b) material to transac-

tion (c) made falsely (d) with intent of misleading

another into relying upon it:

A few days later—-- “a day or two before” April 2, 1974,

James Chetister telephoned Lavaun Chetister and “said that

‘there was (sic) loan papers to be signed and asked me if |

would take and meet him at Hattery Realty on Woodville

Road.” (T-68, 5-11); on April 2, 1974, she went to Hattery

Realty to sign “loan papers” and present was everybody bu!

an attorney (T-68,6-8):

“| was setting (sic) to the right of Jim. Mr. Hattery was

setting (sic) to the left of him. Mr. Knuth was across

from us, and there was another gal which was the

secretary in there. There was no one else.” (T-

68,22-23; 69, 1-2).

But James Chetister did have an attorney, one Mervin Sharf-

man, and appellee had him prepare a quitclaim deed (Plain-

tiffs Exhibit No. 2), and appellee brought this to the closing at

Hattery Realty that April 2, 1974. {T-14, 4-12).

A-15

When asked about the absence of his attorney at the closing

at Hattery Realty, appellee simply said an attorney “wasn’t

needed.” (T-17, 19-23).

Yet just seven months before, appellee had “that very same

attorney, Mervin Sharfman”, present when appellee and

appellant signed another mortgage. (T-12,16-23; 13, line 1).

In Area Of Justifiable Reliance, element(e) of fraud:

“Q Did you rely upon the words of Jim of those loan

papers when you signed?

“A Yes, | did.” (T-71,8-10).

“Q ...did you hear Mr. Chetister tell you that those

were loan papers, you heard those words, loan

papers?

“A Yes, when he called me.

“Q ...until you signed that paper April 2nd, did he

ever say there was something besides loan papers

there?

“A No.” (T-131, 4-12).

“Q Did you rely upon his statement they were loan

papers?

“A Yes, | did.” (T-131, 17-19).

In Area Of (f) Resulting Injury Proximately Caused

By Reliance:

(By Mr. Wittenberg, appeliee’s counsel):

“Q If |understand your testimony, you believed that

that house until sometime in 1982 was half yours?

“A Yes, sir.” (T-125, 2-4).

“Q Did you make any payments on this, the Arquette

Road house?

“A ' made one on that.

“Q How much was that payment?

“A It was $120. (sic)”(T-88,8-12).

A-16

And during the four and one-half months that appellant and

appellee lived together in the house following the April 2, 1974,

real estate closing at Hattery’s, appellant—-believing that the

house was “half” hers—-- made over a thousand dollars

worth of improvements to the house, including “wall-to-wall

Carpeting” in two rooms and a hallway (T-76, 11-19),cooking

range installed in the kitchen (T-77, 9-19) and “four rose

bushes” appellant bought and planted in the yard on or about

July 20, 1974 (T-25, 2-4):

“Q Did you ever have occasion to add up what these

came to?

“A Uh-huh. They come (sic) up to $1,237. (sic)

“Q That you paid in improvements in that Arquette

Road house?

“A Yes, sir.

“Q Did you at the time you did this, did you believe

this house was yours?

“A Yes, | did.” (T-92, 12-79).

And appellant today is still under obligation, along with appel-

lee, to pay off “about $9,000.00 on the Arquette Road house”.

(T-8, 8-10).

Appellant “first learned there was a quitclaim deed existing”

on or about February 28, 1982 (T-72, 17-23), and “when |

found out about it, | was stunned.” (T-73, 1-13).

Appellant Did Give Conflicting Evidence:

“Q Now did you have an opportunity to read the

papers underneath?

“A No, | did not.” (T-70, 9-14).

Oncross: “QDid anyone stop you from reading any papers?

“A No.” (T-111, 10-13).

‘

A-17

ll. ARGUMENT:

QUESTION: Why should Supreme Court of Ohio take juris-

diction in Chetister?

ANSWER: [To prevent legal larceny of the jury by lower

courts in Ohio. To construe AppR. 12(A) and harmonize it with

CivR. 50(E).

ISSUE: Did Court of Appeals for Sixth District commit an

irregularity when it sustained the trial court's directed verdict

for areason other than those written in the basis of decision of

the trial court and argued separately on appeal in appellant's

brief, without first passing upon the trial couri’s reasons?

Stated another way:

Did Court of Appeals for Sixth District destroy appellant's right,

as a practical matter, to effectively challenge the trial court's

ruling on appeal (the significant purpose of CivR. 50(E), when it

sustained the trial court’s directed verdict for a reason other

than those given by the trial court, without first passing upon

the reasons of the trial court that were argued separately by

appellant in her brief?

In her argument, appellant will discuss her seven proposi-

tions of law in three groups: No. 1 and No. 2; No. 3, 4, 5, and 6;

and No. 7 by itself.

Proposition of Law No. 1: /n an appeal from a trial court's

directed verdict to a court of appeal, where reviewing court

sustains the trial court for a reason or reasons other than

those written intc the entry or dictated into the record and

argued separately by appellant in her brief, and where review-

ing court does not first pass upon the basis of the decision set

forth and argued by appellant in her brief, the court of appeals

commits an irregularity in obtaining judgment on review and it

shall be vacated. (Rule 12(A) of the Appellate Procedure

construed and harmonized with Civil Rule 50(E).

A-18

Proposition of Law No. 2: The significant purpose of Civil

Rule 50(E) is to enable a party to challenge the trial court’s

ruling on appeal, and where the court of appeals intends to

sustain the trial court’s ruling upon a reason or reasons other

than those stated in writing by the trial court and argued

separately by appellant in her brief, it shall, before rendering

its decision, rotify the appellant of its reason or reasons and

allow appeliant ten (10) additional days to respond to them,

and this written response shall be considered by the court of

appeals before it shall render its decision in the case. (Rule

12(A) of the Rules of Appellate Procedure amended accord-

ingly and submitted by the Supreme Court to the General

Assembly on and shall take effect on

)

Authorities In Support As They Appear:

1. Baker v. McKnight (1983), 4 Ohio St.3d 125.

2. Rule 50(E) of Civil Rules of Civil Procedure, Appendix pp.

25, 26.

3. Rule 12(A) of Rules of Appellate Procedure, Appendix, pp.

27, 28.

4. 4 Corpus Juris Secundum, “Appeal and Error”, 88, Sec-

tion 20.

5. Van De Ryt v. Van DeRyt (1966), 6 Ohio St. 2d 31.

The purpose of appellant's argument is to get jurisdiction in

the Supreme Court of Ohio so that this Court can construe

AppR. 12(A) and CivR. 50(E). Without such construction and

guidance for the lower courts, “the efficient administration of

justice”' oozes out of the crack of disharmony now existing

between AppR. 12(A) and CivR. 50(E).

‘Supreme Court of Ohio has acknowledged on ::umerous occasions, Baker,

supra.

A-19

In the recent case of Baker v. McKnight (1983), 4 Ohio St.3d

125, Justice Sweeney and a majority of the Court found no

hesitancy in construing CivR. 3(A) and 15(C) in order to bring

justice to the application of the relate-back provision of Rule

15(C) to Rule 3(A).

And Justice William B. Brown, joined by Justice Holmes,

stated that: -

“The purpose of the Ohio Rules of Civil Procedure,

as this court has acknowledged on numerous occa-

sions, is to give guidance to the practicing bar and to

promote the efficient administration of justice.” (P.

131,6-8).

And even though Justice Brown went on to say that “this

purpose will be severely undermined if this court re-interpreis

and re-defines a particular rule of procedure periodically”,

appellant can find no interprets or “re-interprets” by this court

of AppR. 12(A) as it relates to CivR. 50(E).

Further, Justice Holmes in his dissent made it clear that

“court interpretations of rules of procedure” are proper “upon

review ifa sound and reasonable basis for such is presented.”

(P. 131, lines 25-29).

Appellant believes such a “basis” is found in the following:

Rule 50(E) states:

“When in a jury trial a court directs a verdict or grants judg-

rent without or contrary to the verdict of the jury, the court

snall state the basis for its decision in writing prior to or

simultaneous with the entry of judgment. Such statement may

be dictated into the record or included in the entry of

judgment.”

A-20

The Official Staff Note accompanying CivR. 50(E) notes that

the purpose of the requirement of a written basis for decision

“is obvious”: the court’s ruling substitutes for a function of the

jury; must “be set forth clearly.”

The significant purpose of Civil Rule 50(E) is to enable a

party to chailenge the trial court’s ruling on appeal.

Appellate Rule 12(A) states:

“Errors not specifically pointed out in the record and separ-

ately argued by brief may be disregarded. All errors

assigned and briefed shall be passed upon by the court in

writing, stating the reasons for the court's decision as to

each such error.”

Appellant believes, and urges this Court to construe this to

mean, that the court of appeals shall pass upon the reason or

reasons stated by the trial court in Rule 50(E) and argued

separately by brief on appeal.

Otherwise, the court of appeals in a Rule 50(E) setting could

on its own destroy the significant purpose which the Supreme

Court of Ohio gave to Rule 50(E) under its rule-making powers:

to enable a party to challenge the trial court's ruling on appeal,

and in particular the Court of Appeals sitting in the Sixth

District.

What practical effect of NOTICE did appellant Lavaun Chet-

ister receive in the instant case--- to challenge the trial court's

ruling on appeal--- when the Sixth Court of Appeal ignored--

completely ignored-- the three (3) reasons given by the trial

court for its decision and argued separately by appellantin her

brief on appeal? (See appendix, pp.29, 30, copy of the basis of

the decision dictated into the record by trial Judge Richard

McQuade).

A-21

Appellant might just as well not written her brief. For the

Supreme Court to allow the Sixth Court of Appeals to do this is

prejudicial to appellant and procedurally unpalatable with

CivR. 50(E).

Further, the Civil and Appellate Rules would, appellant

believes, eventually become a hotchpotch with twelve

cooks—-- a jumbled mixture of stew from the twelve districts

with one reviewing court putting in too little salt and another

too much pepper.

Viewing the procedural conduct of the Sixth Court of

Appeals in its best light shines no light on “the efficient admin-

istration of justice” that appellant had a right to expect under

Rule 50(E). The Supreme Court made Rule 50(E) enabling

appellant to challenge the trial court’s ruling on appeal; the

Sixth destroyed it and appellant, without justice or a fair fight.

Often heard is the expression that every litigant is entitled to

a trial and atleast one review. And itis stated in 4 Corpus Juris

Secundum, “Appeal and Error”, 88, Section 20:

“Being remedial, appeals and the right of appeal, are

favored by the law.” In Ohio, the Supreme Court makes pro-

cedural rules that must be adhered to in legal proceedings. In

Van DeRyt v. Van DeRyt (1966), 6 Ohio St.2d 31, the Supreme

Court defined “irregularity” which is the basis for vacation:

“Want of adherence to some prescribed rule or mode of

proceeding.” (p.39). Appellant believes that the Court of

Appeals for the Sixth District? committed an “irregularity”

when it gave a reason of its own in sustaining the trial court's

directed verdict without first passing upon the reasons stated

in the basis of decision of the trial court and argued separately

on appeal by appeliant in her brief.

2The Court of Appeals for the Sixth District is no stranger to challenging

rules. In Smith v. Kiem (1983), this court of appeals reviewed the Supreme

A-22

Appellant further believes that the Supreme Court could

reduce its caseload in a small way by amending AppR. 12(A),

so that 12(A) would require a court of appeals to give an

appellant ten (10) additional days to respond to the reasons

given by the reviewing court when it intends to sustain the trial

court’s judgment on grounds other than those stated by the

trial court and argued separately in appellant's brief. The

amendment should also require the court of appeals to con-

sider appellant's written response before rendering its de-

cision.

This would allow more issues to be resolved at the court-of-

appeals level. At the least, more sifting and thrashing of the

chaff would take place.

Proposition of Law No. 3: /n a motion for a directed verdict

timely made and in the proper form, and where the plaintiff

gives conflicting evidence in support of any or all elements of

her case, nonetheless, the trial court shall not grant a directed

verdict since determining whether reasonable minds could

come to but one conclusion upon the evidence submitted

does not involve any weighing of the evidence nor is the court

concerned with the credibility of witnesses. (Ruta v. Brecken-

ridge - Remy Co. (1982), 69 Ohio St.2d 66 followed.)

Proposition of Law No. 4: Upon a motion for a directed

verdict, neither the reviewing court or the trial court is permit-

ted to select those portions of the evidence it will consider or

consider the credibility of the witness giving it.

note 2 cont'd. Court's decision in another case, State, ex rel. Smith, v. Court

(1982), 70 Ohio St.2d 213, and “concluded that the second paragraph of the

syllabus was obiter dictum and had no prededential value.” It could have

saved itself possible embarrassment by first looking at one of its own

decisions 24 years before, in McGilvery v. Shadel, 87 Ohio App. 345, 95 N.E.

2d 1 (1949) where its own syllabus stated: “In 1858 the rule was established

that the syllabus of a case decided by the Supreme Court of Ohio states the

law of that particular case, ***.”

A-23

Proposition of Law No. 5: /n a motion for a directed verdict

where every element of plaintiff's case is supported by direct

proof or evidence upon which a reasonable inference may be

predicated to support each such element, and though the

state of the evidence reveals conflicting testimony, it is the

jury, and not the trial court or reviewing court, who is entitled

to believe all or part of the testimony of any witness. (Cothey v.

Jones-Lemley Trucking Co., 176 Ohio St. 342 followed.)

Proposition of Law No. 6: Upon a motion for a directed

verdict, a trial court shall examine the materiality of the evi-

dence as it relates to the elements of the case, as opposed to

the conclusions to be drawn from the evidence, and this

applies to the reviewing court.

Authorities In Support As they Appear: |

1. Rutav. Breckenridge - Remy Co. (1982), 69 Ohio St.2d 66,

23 003d 115.

2. Cothey v. Jones-Lemley Trucking Co. (1964), 176 Ohio St.

342, 27 002d 281.

The following is intended to show that both, the trial court

and the Court of Appeals for the Sixth District, improperly

weighed the evidence, considered the credibility of witnesses,

and improperly selected those portions of the evidence that

each wanted to consider in support of a directed verdict.

First, the trialcourt: Aclose reading ofthe transcript ofthe

trial shows that there was no evidence that appellant Lavaun

Chetister should have discovered the fraudulent quitclaim

deed before she actually discovered it on or about February

28, 1982, eight (8) years after its executuion. The only evidence

in this area is found at T-73, lines 11-13:

“Q Had you any reason whatsoever to know that that quit-

claim deed existed?

“A No way. When | found out about it, | was stunned.”

A-24

And on cross examination, appellant had this to say:

“Q If | understand your testimony, you belived that that

house until sometime in 1982 was half yours?

“A Yes,sir.” (T-125, lines 2-4).

But this is what the trial court had to say:

The Court: “Now, you have to convince me, you have to

convince me and the jury that as to damages she’s saying,

Look, | didn’t know | signed a quitclaim deed, now | found it

out. Now, there was fraud committed on me, and so now I'm

entitled to these damages for carpeting, for the freezer seal,

for the bookcases and for whatever it was.” (Emphasis

appellant's).

Mr. Donnell: “She thought the house was hers, that she

was still titted owner, and that what she put in there --

The Court: “That stretches credibility.”

Appellant can only say that the trial court’s credibility can be

stretched to Wauseon and back to Toledo and out over Lake

Erie, it matters not. Ruta, supra, makes it clear that the jury, and

not the trial court, is to be concerned with the credibility of any

witness. (P. 116, lines 30-36).

Further, appellant does not have to “convince” both, the trial

court “and the jury”. The Supreme Court in Ruta also made it

clear that in a directed verdict setting, “(d)etermining whether

‘reasonable minds could come to but one conclusion upon the

evidence submitted’ does not involve any weighing of the

evidence, nor is the court concerned with the credibility of

witnesses.” (T-116, lines 28-36). (Emphasis appellant’s). The

trial court erred.

A-25

Another example: the trial court drawing a conclusion

from the evidence:

THE COURT: ‘Secondly, the action is predicated on a fraud.

lf she thought that there was fraud, she should have know it the

day in August when she left the house and should have made

her claim. If there was fraud evident to her, it was then, and

she’s brought no action until apparently May of 1982.” (T-142,

20-23; 143, 1-2). (Emphasis appellant's).

What does the Supreme Court in Ruta, supra, have to say

abouta trial court drawing conclusions from the evidence ina

directed verdict setting?

“A motion for a directed verdict raises a question of law

because it examines the materiality of the evidence, as

opposed to the conclusions to be drawn from the evi-

dence.” (Ruta, p. 117, lines 8-12).

Once again, the trial court erred, measured by Ruta

(1982).

Second, the Court of Appeals for the Sixth District:

The court of appeals improperly weighed the evidence and

selected those portions of the evidence that it wanted to con-

sider in order to sustain the trial court on appeal. Example:

Judge Douglas speaking for the court:

“The record in this case reveals that the appellant failed to

present any evidence as to any of the elements noted in

Lipman, supra. Appellant admitted upon cross-examination

that no one had represented to her that the quitclaim deed

she signed was a mortgage paper. She had just assumed

that the deed was a loan paper presented for her signa-

ture.” (Emphasis appellant’s). See appendix, p. 19, lines

8-13).

A-26

To really appeciate the improper selection of evidence by the

court of appeal in order for it to make the broad and erroneous

statement that the “record in this case reveals that the appel-

lant failed to present any evidence as to any of the elements

noted in Lipman”, one should reread appeliant’s statement of

facts quoted directly from the trial transcript. However, some

of the evidence that got by the selection process of the court of

appeals are:

In the area of the elements of (a) a representation (b) material

to the transaction (c) made falsely (d) with intent of misleading

another into relying upon it:

(A) day or two before” April 2, 1974, James Chetister tele-

phoned Lavaun Chetister and “said that there was (sic) loan

papers to be signed and asked me if | would take and meet

him at Hattery Realty on Woodville Road.” (T-68, lines 5-11;

on April 2, 1974, she went to Hattery Realty to sign “loan

papers” and present was everybody but an attorney. (T-68,

lines 6-8).

In the area of (e) justifiable reliance:

“Q Did you rely upon the words of Jim of those loan papers

when you signed?

“A Yes, | did.” (T-71, lines 8-10).

“Q ...Did you hear Mr. Chetister tell you that those were loan

papers, you heard those words, loan papers?

“A Yes, when he called me.

“Q ...until you signed that paper April 2nd, did he ever say

there was something besides loan papers there?

“A No.” (T-131, lines 4-12).

“Q Did you rely upon his statement they were loan papers?

“A Yes, | did.” (T-131, lines 17-19).

In area of (f) resulting injury proximately cause by reliance:

A-27

Cross: “QIfl understand your testimony, you believed that

that house until sometime in 1982 was half yours?

“A Yes, sir.” (T-125, 2-4).

“Q Did you make any payments on this, the Arquette Road

house?

“A | made one on that.

“Q How much was that payment?

“A It was $120.”(sic)(T-88-, lines 8-12).

And appellant, believing that the house was “half” hers since

she had went into debt with appellee by signing the “loan

papers” and unaware that there was a quitclaim deed in the

pile of papers she had signed, made over a thousand dollars of

improvements to the house, including “wall-to-wall carpet-

ing” in two rooms and a hallway (T-76, 11-19), cooking range

installed in the kitchen (T-77, 9-19), and “four rose bushes”

appellant bought and paid for and planted in the yard of the

house she lived in and believed was “half” hers (T-25, 2-4).

With only these few examples direct from the transcript on

the elements of fraud, how could the court of appeals, with any

integrity, make the broad-brush statment that the “record in

this case reveals that the appellant failed to present any evi-

dence as to any of the elements noted in Lipman”? (Emphasis

appellant's).

What a broad statement? Completely ungrounded.

A further example of a gross distortion of the facts by the

court of appeals:

“Appellant further admitted at trial that she had had the

present ability and the opportunity to read all of the docu-

ments which she signed on the date in question, but that she

had, of her own volition, neglected to do so.” (Decision &

Journal Entry, see Appendix 19, lines 16-19). (Emphasis

appellant's).

A-28

Now let's look at the testimony of appellant:

“Q Now did you have an opportunity to read the papers

underneath?

“A No, | did not.” (T-70, lines 9-14). (Emphasis appellant's).

Notice the word, “opportunity”--- the very same word the

appellant says “no” to, the Court of Appeals for the Sixth

District said yes to.

It is true that on cross, appellant gave this testimony, but

note the difference in wording---from “opportunity to read’ to

“stop you from reading”:

“Q Did anyone stop you from reading any papers?

“A No.” (T-111, lines 10-13).

Not necesarily conflicting evidence, for it is quite possible for

one not to have the “opportunity to read” and still no one

“stop(ped) you from reading”.

Clearly the Court of Appeals for the Sixth District improperly

selected those portions of the evidence that it chose to con-

sider and to believe. Both are forbidden by Auta, supra.

And it is quite obvious the court of appeals did not apply

Cothey v. Jones-Lemley Trucking Co. (1964), 176 Ohio St. 342,

in which the Supreme Court of Ohio stated that it is not neces-

sary that every element of plaintiff's case be supported by

direct proof in order to avoid a directed verdict, but it is suffi-

cient if there is evidence upon which a reasonable inference

may be predicated to support each such element.

Proposition of Law No. 7: The determination concerning

what constitutes a confidential relationship is a question of

fact dependent upon the circumstances in each case, and

where one with an eighth-grade education is induced to sign

a quitclaim deed without reading it and without knowing it

A-29

was a quitclaim deed and believing it was aloan paper under a

pile of loan papers in reliance on the other party’s statement

that t 1e papers to be signed were loan papers, and where the

two parties had a long period of marriage followed by a

divorce that was followed quickly by a discussion about get-

ting back together again, which was quickly followed by their

joint signing of amortgage deed and note for a house in which

both cohabited thereafter for a period of over four months

during which the relying party paid for and had installed wall-

to-wall carpeting in two rooms and a hallway and paid for

hundreds of dollars.of other improvements to the house, the

relying party has the right to have a jury determine the issues

as to whether or not there was a confidential relationship,

whether or not there was fraud, and the amount of money

damages, if any. (Stone v. Davis (1981), 66 Ohio St. 2d 74

followed; /ndermill v. Untied Savings (1982), 5 Ohio App.3d

243 approved.)

Authorities in Support As They Appear:

1. Stone v. Davis (1981), 66 Ohio St.2d 74,419 N.E. 2d 1094.

2. Indermillv. United Savings (i982), 5 Ohio App. 3d 243, 451

N.E. 2d 538.

3. Stevens v. Reilly, 56 Okla 455, 156 P 157.

4. Sabelli v. Bellanca Aircraft Corp., 134 Misc. 389, 235

N.Y.S. 321

The Court of Appeals for the Sixth District did not examine

the evidence to see if a confidential relationship existed

between appellant Lavaun Chetister and appellee, James

Chetister. Instead, it improperly selected portions of the evi-

dence to consider and improperly drew conclusions from

such evidence when it stated that appellant“had, of her own

volition, neglected” to read the quitclaim deed,(Decision &

Journal Entry, Appendix 19, lines 16-19), after stating incor-

rectly that appellant had “the opportunity to read” it (lines

16-17).

A-30

The court of appeals misplaced reliance on two Ohio cases*

in that both were readily distinguishable as having no facts ofa

confidential relationship.

The instant case does, as discussed supra. The Supreme

Court in Stone v. Davis (1981), 66 Ohio St.2d 74, quoted from its

opinion in Umbaugh Pole Bldg. Co. v. Scott (1979), 58 Ohio :

St.2d 282:

“A fiduciary relationship need not be created by contract; it

may arise out of an informal relationship where both parties

understand that a special trust or confidence has been

reposed.” (Stone, supra p. 78).

And the Court of Appeals for Summit County stated at p. 245,

lines 6-9:

“The determination concerning what constitutes a confi-

dential (fiduciary) relationship is a question of fact depend-

ent upon the circumstances in each case.” /ndermill v.

United Savings (1982), 5 Ohio App. 3d 243. {

This Ohio law was available to the court of appeals, and many

more, some from sister states: in Stevens v. Reilly, 56 Okla

455, 156 P 157:

“When it appears that one has been guilty of intentional and

deliberate false statements, by which to his knowledge

another has been misled and influenced in his action, he

cannot escape the legal consequences of his fraudulent

conduct by saying that the fraud might have been disco-

vered had the party whom he deceived exercised ordinary

care and diligence.”

3Dice v. Akron, Canton & Youngstown Rd. Co. (1951), 155 Ohio St. 185;

Leedy v. Ellsworth Construction Co. (1966), 9 Ohio App.2d 1.

A-31

And in Sabelli v. Bellanca Aircraft Corp, 134 Misc. 389, 235

N.Y.S. 321:

“Where one is induced to sign an instrument without read-

ing it in reliance on the other party's statement as to the

contenis thereof, he may avoid the contract on the grounds

of fraud.” (Emphasis appellant's).

lil. CONCLUSION:

When the Cixth Cou:t of Appeals sustained the Lucas

County trial court on a directed verdict for a reason other than

those given by the trial court and argued separately by appei-

lant on appeal in her brief, appellant might just as well not

written her brief, for in this situation, CivR. 50(E) did not enable,

as the Supreme Court intended, appellant to challenge the trial

court's ruling on appeal. This causes appellant additional

appeal expenses!

This should be corrected, otherwise appellants similarly

situated will never be able to resurrect and revitalize their

cases under Rule 50(E) on first appeal.

Supreme Court of Ohio should take jurisdiction, construe

50(E) and AppR.12(A).

/s/ Walton H. Donnell

Walton H. Donnell-Counsel for

Appellant

A-32

———

APPENDIX D

IN THE SUPREME COURT OF OHIO

THE STATE OF OHIO, ) 1984 TERM

City of Columbus. ) To wit: April 11, 1984

)

Lavaun Chetister, ) No. 84-336

Appellant, ) MOTION FOR AN ORDER

) DIRECTING THE COURT

vs. ) OF APPEALS

)

James G. Chetister, ) for LUCAS County

Appellee. ) TO CERTIFY ITS RECORD

It is ordered by the Court that this motion is overruled.

COSTS:

Motion Fee, $20.00, paid by W.H.Donnell.

|, James Wm. Kelly, Clerk of the Supreme Court of Ohio,

certify that the foregoing entry was correctly copied from the

Journal of this Court.

Witness my hand and seal of the Court

This _____ day of 19

Clerk

Deputy

A-33

APPENDIX E

IN THE SUPREME COURT OF OHIO

Lavaun Chetister, : Supreme Court No. - 84-336

Plaintiff-Appellant,

C.A. No.-L-83-318 (Sixth

-VS- District)

James G. Chetister, : C.P. No.-82-1161 (Lucas

Plaintiff-Appellee. County)

MOTION

for

REHEARING

(filed April 20, 1984 in the Ohio Supreme Court)

Walton H. Donnell

Counsel for Plaintiff-Appellant

139 East Court Street

P.O. Box 733

Bowling Green, Ohio 43402

Telephone: (419) 352-2616

Charles S. Wittenberg

Counsel for Defendant-Appeliee

Silverman, Gorman, Wittenberg & Wittenberg

Suite 540 Spitzer Building

Toledo, Ohio 43604

Telephone: (419) 243-3261

A-34

TABLE OF CONTENTS

PAGES

TABLE OF AUTHORITIES, does not exceed 12.

NST IIPS FPR FI nics die ecasisencccibecenstan 1

MEMORANDUM iN SUPPORT OF MOTION .............. 2,3

PO ae: I 6 ioinnn cca cin pvappenssseeneonsosckeasavins 4

APPENDIX, none.

MEMORANDUM IN SUPPORT OF MOTION

Procedurally, the very same factual setting (of the instant

Case) was present in Licking County (Eleventh District) ten

years ago when the Supreme Court took jurisdiction and

stated a “fairness” policy to be used in all App. R.12(A) cases

when the Court of Appeals contemplates a decision upon an

issue not briefed by appellant. The highest of Ohio courts said:

“In fairness to the parties, a Court of Appeals which con-

templates a decision upon an issue not briefed should, as

the Court of Appeals in this case did, give the parties notice

of its intention and an opportunity to brief the issue.” (P. 301,

fn.3, C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio

St. 2d 298, 313 N.E. 2d 400).

This fairness policy and notice is absent in the Sixth Appellate

District.

Thirteen years ago the Supreme Court accepted jurisdiction

in Rothfuss v. Hamilton Masonic Temple Co. (1971), 27 Ohio

St. 2d 131, 271 N.E. 2d 801, when the question of great public

interest was the same as in the instant case--non-compliance

with App. R. 12(A). The Court stated:

A-35

“Failure by the Court of Appeals to state its reasons for not

passing upon all the assignments of error presented to it

precludes this court from determining whether there was

any merit to the claims of prejudicial error presented to the

Court of Appeals by the assignments of error as a predicate

to the appeal presented here.”

Two years later, the Supreme Court took jurisdiction in

another App.R. 12(A) case from Cuyahoga County (Eighth

District) and quoted this quoted passage from Rothfuss, in

Lumberman’s Alliance v. American Escelsior, 33 Ohio St. 2d

37, 294 N.E. 224, apparently making compliance with App. R.

12(A) a significant part of the procedural! law in Ohio.

One month before Lumberman, the Supreme Court accepted

jurisdiction of an App. R. 12(A) case in Licking County (Fifth

District) in Smith v. Jagger(1973), 33 Ohio St. 2d 1,292 N.E. 2d

641, stating in the syllabus:

“All errors assigned and briefed to be passed upon by Court

of Appeals in writing-App.R. 12(A) -Judgment reversed anc

remanded.”

In 1982, the Supreme Court accepted jurisdiction once

again in Licking County (Fifth District) App. R. 12(A) case, and

per curiam stated:

State v. Jennings (1982), 69 Ohio St. 2d 389, 433 N.E.2d 157:

“We find that the Court of Appeals failed to comply with App.

R. 12(A) when it did not rule upon all of the assignments of

error before it.” (P. 390, lines 11-13.)

In the instant case, appellant's first assignment of error was:

“1. The court erred in granting the motion of defendant-

appellee for a Directed Verdict pursuant to CivR 50(A)(4).”

A-36

Under this assignment of error, appellant briefed the three (3)

reasons given by the trial court ior the basis of its decision fora

directed verdict, these reasons being required by CivR 50(E).

Not one of them did the Court of Appeals pass upon. Instead,

it based its entire three-page opinion and journal entry on an

issue without first giving appellant notice of its intention and

an opportunity to brief the issue as required by the “fairness”

policy set down by the Surpeme Court in C. Chevro/et ten

years before in 1974.

Procedural law substantially affects the rights of parties just

as does the substantive law. The Court of Appeals did not

comply with App. R. 12(A), nor did it comply with the “fairness”

and “notice” policy set out by the Supreme Court in C. Chev-

rolet, supra. The Court of Appeals denied appellant equal

treatment under the law in Ohio.

Further, by refusing to take jurisdiction of the instant case on

April 11, 1984, after having taken jurisdiction in several other

appellate districts in the state on the same question of great

public interest--the non-compliance with App. R. 12(A)---the

Supreme Court shows a deliberate attempt to discriminate,

denying appellant the right to equal treatment under the law as

guaranteed by the Fourteenth Amendment.

There is no poiiceman running around the state of Ohio

protecting appellants in each appellate district from unequal

treatment under the law. Appellant can only look to the

Supreme Court of Ohio, and has a right to, as procedural law in

the Sixth District should be as equally applied as in the Fifth or

Eighth or Eleventh District.

/s/ Walton H. Donnell

Walton H. Donnell, Counsel for

Appellant

A-37

APPENDIX F

THE SUPREME COURT OF OHIO

COLUMBUS

FRANK D. CELEBREZZE

Chief Justice

THE STATE OF OHIO,

City of Columbus. 1984 TERM

Lavaun Chetister, To Wit: May 9, 1984

Appellant,

Case No. 84-336

vs. REHEARING

James G. Chetister,

Appellee.

It is ordered by the court that rehearing in this case is

denied.

|, JAMES WM. KELLY, Clerk of the Supreme Court of the

State of Ohio, certify that the foregoing entry was correctly

copied from the Journal of this Court.

Witness my hand and the seal of

the Court this 9th day of May, 1984.

Clerk.

By Deputy.

A-38

APPENDIX G

TEXT OF CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

AMENDMENTS TO

THE CONSTITUTION OF THE UNITED STATES

AMENDMENT |

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 assembie, and to petition the Govern-

ment for a redress of grievances. (Effective 1791)

AMENDMENT XI

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.

(Effective 1798)

AMENDMENT XIV

Section 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.

A-39

Section 2. Representatives shall be apportioned among the

several States according to their respective numbers, count-

ing the whole number of persons in each State, excluding

indians not taxed. But when the right to vote at any election for

the choice of electors for President and Vice President of the

United States, Representatives in Congress, the Executive

and Judicial officers of a State, or the members of the Legisla-

ture thereof, is denied to any of the male inhabitants of such

State, being twenty-one years of age, and citizens of the Uni-

ted States, or in any way abridged, except for participation in

rebellion, or other crime, the basis of representation therein

shall be reduced in the proportion which the number of such

male citizens shall bear to the whole number of male citizens

twenty-one years of age in such State.

Section 3. Noperson shall be a Senator or Representative in

Congress, or elector of President and Vice President, or hold

any Office, civil or military, under the United States, or under

any State, who, having previously taken an oath, as a member

of Congress, or as an officer of the United States, or as a

member of any State legislature, or as an executive or judicial

officer of any State, to support the Constitution of the United

States, shall have engaged in insurrection or rebellion against

the same, or given aid or comfort to the enemies thereof. But

Congress may by a vote of two-thirds of each House, remove

such disability.

Section 4. The validity of the public debt of the United States,

authorized by law, including debts incurred for payment of

pensions and bounties for services in suppressing insurrec-

tion or rebellion, shall not be questioned. But neither the Uni-

ted States nor any State shall assume or pay any debt or

obligation incurred in aid of insurrection or rebellion against

the United States, or any claim for the loss or emancipation of

any slave; but all such debts, obligations and claims shall be

held illegal and void.

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Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article (Effective

1868) .

THE CODE OF THE LAWS

OF THE

UNITED STATES OF AMERICA

TITLE 42

THE PUBLIC HEALTH AND WELFARE

§1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdic-

tion thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress. For the purposes of this

section, any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a statute of the

District of Columbia.

R.S. §1979; Pub.L. 96-170, § 1, Dec. 29, 1979, 93 Stat. 1284.

§ 1888.Proceedings in vindication of civil rights; attorney's

fees

The jurisdiction in civil and criminal matters conferred on

the district courts by the provisions of this Title, and of Title

“CIVIL RIGHTS,” and of Title "CRIMES,” for the protection of

all persons in the United States in their civil rights, and for their

vindication, shall be exercised and enforced in conformity

with the laws of the United States, so far as such laws are

suitable to carry the same into effect; but in all cases where

they are not adapted to the object, or are deficient in the

provisions necessary to furnish suitable remedies and punish

Offenses against law, the common law, as modified and

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changed by the constitution and statutes of the State wherein

the court having jurisdiction of such civil or criminal cause is

held, so far as the same is not inconsistent with the Constitu-

tion and laws of the United States, shall be extended to and

govern the said courts in the trial and disposition of the cause,

and, if it is of a criminal nature, in the infliction of punishment

on the party found guilty. In any action or proceeding to

enforce a provision of sections 1981, 1982, 1983, 1985, and

1986 of this title, title IX of Public Law 92-318, or title VI of the

Civil Rights Act of 1964, the court, in its discretion, may allow

the prevailing party, other than the United States, a reasonable

attorney's fee as part of the costs.

R.S. § 722; Pub.L. 94-559, § 2, Oct. 19, 1976, 90 Stat. 2641;

Pub.L. 96-481, Title Il, § 205(c), Oct. 21, 1980, 94 Stat. 2330.

OHIO CONSTITUTION, Art. IV, $2

(B)\(2)The supreme court shall have appellate jurisdiction as

follows:

(a)in appeals from the courts of appeals as a matter of right

in the following:

(i)Cases originating in the courts of appeals;

(ii)Cases in which the death penalty has been affirmed;

(iii) Cases involving questions arising under the constitution

of the United States or of this state.

OHIO REVISED CODE $2505.29

No appeal filed without leave of supreme court; exceptions.

No appeal shall be filed in the supreme court unless such

court or a judge thereof gratts leave to file such an appeal.

Such leave need not be obtained to file an appeal as to the

judgment or final order of the court of appeals, or a judge

thereof, in cases involving questions under the constitution

of the United States, or of this state, in cases which origi-

nated in the court of appeals, and as to proceedings of

administrative officers as may be provided by law.

History: GC §12223-29; 116 v 104(111). §1. Eff 10-1-53.

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RULES OF PRACTICE OF THE SUPREME COURT OF

OHIO

RULE Il

DETERMINATION OF JURISDICTION ON

APPEALS FROM COURTS OF APPEALS

SECTION 2. Notice of Appeal Filed in the Supreme Court

Considered as Motion to Certify or for Leave to Appeal.

Where the order, judgment or decree of the Court of

Appeais that is appealed from was rendered in an action not

originating in the Court of Appeals, the copy of the notice of

appeal filed in the Supreme Court will be considered as a

motion for leave to appeal in a felony case or as a motion to

certify in any other case. No separate motion to certify or for

leave to appeal need be filed.

OHIO RULES OF APPELLATE PROCEDURE

RULE 12. Determination and judgment on appeal

(A) Determination. In every appeal from a trial court of

record to a court of appeals, not dismissed, the court of

appeals shall review and affirm, modify, or reverse the

judgment or final order of the trial court from which the

appeal is taken. The appeal shall be determined on its

merits on the assignments of error set forth in the briefs

required by Rule 16, on the record on appeal as provided by

Rule 9, and, unless waived, on the oral arguments of the

parties, or their counsel, as provided by Rule 21. Errors not

specifically pointed out in the record and separately argued

by brief may be disregarded. All errors assigned and briefed

shall be passed upon by the court in writing, stating the

reasons for the court's decision as to each such error.