Petition for Writ of Certiorari — Blackburn v. Tudor
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IN THE | OFFICE Gr THE CLER
SUPREME COURT
OF THE UNITED STATES
October Term, 1992
THOMAS L. BLACKBURN
Petitioner
vs.
REBECCA L. TUDOR
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF OHIO
THOMAS L. BLACKBURN
2701 Argonne Rd
P.O. Box 1463
Portsmouth, Ohio 45662
Pro se
i
QUESTIONS PRESENTED
I
Is a plaintiff deprived of due
process of law, within the meaning of the
Fourteenth Amendment to the U.S.
Constitution, where Ohio law does not
provide a legal remedy, for breach of
promise to marry, but the laws of other
States provide such a remedy; if so, did
the Supreme Court of Ohio deny plaintiff
due process of law or equal protection of
the laws, when it refused to overturn a
decision rendered by the Court of Appeals
for the Fourth District Court of Appeals?
II
Does the Order of the Supreme Court
of Ohio, denying plaintiff-appellant's
motion to certify the record to that Court
deny plaintiff-petitioner due process of
law, within the meaning of the Fourteenth
Amendment to the U.S. Constitution?
ii
TABLE OF CONTENTS
PAGE NO
QUESTIONS PRESENTED
TABLE OF CONTENTS
TABLE OF AUTHORITIES
OPINION BELOW
FOOTNOTE
JURISDICTION
CONSTITUTIONAL PROVISIONS INVOLVED
STATEMENT OF THE CASE
REASONS TO GRANT THE PETITION FOR A
WRIT
CONCLUSION
CERTIFICATE OF SERVICE
APPENDIX 1A
i
ii
iii
TABLE OF AUTHORITIES
PAGE NO.
CASES AND STATUTES:
Strock v. Presnell,38 0.S. 3d 207,
527 N.E. 2 d 1235 (1988);
Slusher V. Oeder,16 O.App.3d 432,
476 N.E.2d 714,
16 OBR 503 (1984);
American Jurisprudence 2d (1964),
537, Cancellation of Instruments,
Section 54
10.1(b) Rules of the U.S. Supreme
Court
28 USC 1257
No.
IN THE
SUPREME COURT
OF THE UNITED STATES
October Term, 1992
THOMAS L. BLACKBURN
Petitioner
vs.
REBECCA L. TUDOR
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF OHIO
THOMAS L. BLACKBURN
2701 Argonne Rd
P.O. Box 1463
Portsmouth, Ohio 45662
Pro se
2
Petitioner, Thomas L. Blackburn,
seeks review of an Order of the Supreme
Court of Ohio, said order appearing to
adopt the decision of the Court of Appeals
for the Fourth Appellate District of Ohio.
The case originated in the Scioto County
Court of Common Pleas. In that Court,
petitioner filed a complaint alleging that
he had been wrongfully deprived of his
real property, by respondent.
OPINIONS BELOW
Petitioner timely perfected an appeal]
to the Court of Appeais for the Fourth
Appellate District of Ohio. The Appellate
Court, on September 25, 1992, ruled that
the trial judge had allowed improper
evidence to be introduced into the case.
It vacated the judgment, and remanded the
case to the trial court with instructions
for the trial judge to consider the case
without the improper’ evidence. See
Appendix at pages 1A through 36A.
Tie...
3
Petitioner timely perfected an appeal to
the Supreme Court of Ohio, seeking an
order from that Court to certify the
record of the Court of Appeals to the
Supreme Court of Ohio. See Appendix at
pages 37A through 39A. In accordance with
the Rules of the Supreme Court of Ohio,
petitioner timely filed his Brief in
Support of Jurisdiction. See Appendix at
Pages 40A through 49A. This motion was
overruled : Appendix at page 60A.
Petitioner timely moved the Supreme Court
of Ohio to reconsider the matter. See
Appendix at pages 64A - 68A. This
Jon October 16, 1992, the trial judge entered
a "Revised Judgment Entry", reinstating his origi-
nal decision. This entry was made before the time
to appeal to the Supreme Court of Ohio had expired.
As a result, petitioner moved the Supreme Court of
Ohio to stay enforcement of this Judgment rntry.
This motion was denied. A copy of the Order
appears in the Appendix hereof, at page 54A. A
reproduction of the motion appears in the Appendix
at pages 55A through 59A. A reproduction of the
Trial Judge’s Revised Judgment appears in the
Appendix at pages 51A through 53A.
4
motion was also overruled. See Appendix
at page 69A.
JURISDICTION
The Supreme Court of Ohio, the court
of last resort in the State of Ohio, has
ruled on this matter. Authority for this
review is found at Rule 10.1(b) of the
Rules of the Supreme Court and at 28 USC
4237.
CONSTITUTIONAL PROVISIONS INVOLVED
Amendment XIV, of the United States
Constitution, as applied to the States,
respecting due process and equal pro-
ection under the law.
STATEMENT OF THE CASE
The parties were engaged to be
Married. Respondent, for no good cause,
terminated the engagement. While engaged,
petitioner purchased rea] property, to be
given to respondent when they married. A
deed was prepared conveying this property
5
to respondent and placed with an escrow
agent, not to be released to respondent
unless certain conditions transpired.
None of the conditions under which the
escrow agent was to release the deed to
respondent occurred. After terminating
the engagment, respondent surreptitiously
obtained “ possession of the deed and
recorded it. When petitioner discovered
this, he filed an action in the Scioto
County Court of Common Pleas. The action
came on for trial. Judgment was rendered
favoring respondent. Petitioner appealed
to the Court of Appeals for the Fourth
Appellate District. On October 16, 1992,
the trial judge entered a "Revised
Judgment Entry", reinstating his original
decision. A copy of the judgment appears
in the appendix hereof. Notwithstanding
the trial court's entry, petitioner timely
perfected an appeal to the Supreme Court
of Ohio, pursuant to the rules. The
—
6
Supreme Court of Ohio declined to order
that the record be certified to that Court
and denied rehearing. A motion to stay
enforcement of the judgment was also
denied by the Supreme Court of Ohio.
REASONS TO GRANT THE PETITION FOR A WRIT
In effect, the Ohio Courts have
allowed respondent to obtain a windfall] of
Significant proportions. In its opinion
and decision, the Court of Appeals for the
Fourth Appellate District found that
petitioner was not in the chain of title
relating to the subject property. Citing
cases cited in 13 American Jurisprudence
~
2d (1964), 537,Cancellation of Instru-
ments, Section 54, the appellate further
found that, while other states have
recognized the right of a person outside
the chain of title to maintain a legal
action against one to whom a transfer of
real property has occurred, Ohio recog-
nizes no such right. Petitioner's sole
course of action, the Appellate opined, was
equitable relief. Since, inter alia,
petitioner was married at the time he
became engaged to respondent, the trial
court concluded that he had dirty hands,
and could not rely on equity for relief.
Had petitioner been able to maintain a
legal action, the doctrine of clean hands
would not have obtained.
Such a harsh result is a proper
subject for review in this Court, pursuant
to rule 10.1(b) of the Rules of the
Supreme Court or 28 USC 1257.
Secondly, under existing Ohio law,
only tangible items transferred in
contemplation of marriage may be recovered
by a legal action, when the engagement is
wrongfully terminated. When the property
sought to be recovered is real property
and there has been a transfer of owner-
ship, questions arise as to whether the
complaining party's remedy exists at all
or is in equity. See, generally, Strock
V. Presnell, 38 0.8S.3d 207, S27 W.B. 2e
1235 (1988) and Slusher jy. Oeder, 16
O.App.3d 432, 476 N.E.2d 714, 16 OBR 503
(1984). See alsc the concurring opinion
of Stephenson, P.J. in the Appendix. If
real property is involved, therefore, the
complaining party is at a distinct dis-
advantage under the law, that person would
be, if Personally involved. A review
Pursuant to either Rule 10.1(b) of the
Rules of the Supreme Court or 28 USC 1257
iS appropriate.
The Supreme Court of Ohio, without
opinion, denied petitioner's juris-
ictional motion, letting stand the Court
of Appeals decision.
CONCLUSION
Petitioner prays that this Court will
Overturn the Order of the Supreme Court of
Ohio, remand this case to the trial court
with instructions that Clarify the law in
9
Ohio, as it relates to recovery of real
property, under the circumstances such as
are demonstrated in this case. In the
alternative, petitioner prays that this
Court direct that he be granted a new
trial.
Respectfully submitted,
Lyf, 2 ty
4 . y) Y/
Lh ye kL LbA tan
THOMAS L. BLACKBURN, Pro se
CERTIFICATE OF SERVICE
This is to certify that on 23rd
day of April, 1993, three true and correct
copies of the foregoing Petition for a
Writ of Certiorari were mailed, postage
prepaid to:
Mr. Stanley C. Bender
Attorney for Respondent
P.O. Box 950
Portsmouth, Ohio 45662
Telephone: 614-354-4200
Notice was also provided to the Clerk of
The Supreme Court of Ohio, and that the
number of copies required by the Rules of
the Supreme Court were mailed to the Clerk
of the U.S. Supreme Court, at Washington,
».¢.
Pegi 0)
y L L? /
‘frre 40 Oy (I A os
Thomas L. Blackburn, Pro se
2701 Argonne Road, P.O. Box 1453
Portsmouth, Ohio 45662
Telephone: 614-354-4732
APPENDIX A
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
Thomas L. Blackburn Plaintiff-Appellant
vs.
Rebecca L. Tudor Defendant-Appel lee
Case No. 2021
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Gerlach, Gerlach, and Gerlach, Ms. Cynthia
Koehler Gerlach, Portsmouth, Ohio, for
Appellant.
McCurdy, Johnson, Ruggiero, McKenzie §&
Bender, Mr. Stanley c. Bender, Portsmouth,
Ohio, for Appellee.
Harsha, J.:
Thomas L. Blackburn, plaintiff-
appellant, appeals froma judgment entered
by the Scioto County Court of Common Pleas
finding in favor of Rebecca L. Tudor,
1A
defendant -appel lee, on Blackburn's
complaint which requested that the
purported delivery of a deed to certain
property to Tudor be declared invalid and
that the filing of the deed and the
conveyance represented by the deed be set
aside and canceled.
Appellant assigns the following
errors:
| THE TRIAL COURT ERRED IN ITS
FINDINGS OF FACT WHICH ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT SHOULD HAVE
GRANTED JUDGMENT TO PLAINTIFF-APPELLANT IN
ACCORDANCE WITH EQUITY.
eS THE TRIAL COURT ERRED IN
PERMITTING VIOLET COX-FAIN TO TESTIFY
REGARDING PRIVILEGED COMMUNICATIONS WITH
PLAINTIFF-APPELLANT.
IV. THE TRIAL COURT ERRED IN FAILING
TO ALLOW APPELLANT TO AMEND HIS COMPLAINT.
On April 8, 1991, appellant filed a
2A
complaint which averred the following. On
October 20, 1989, appellant purchased real
and personal Property from Ronald and
Phyllis Lauder’ who upon appellant's
direction executed a deed to appellee, as
Grantee, for the rea] property. On July
12, 1990, appellant delivered this deed to
Claude Springer as escrow agent with
instructions that the deed would be
delivered to appellee only if appellant
Should die or not get divorced by July 12,
1991. Appellee, in a manner unknown to
appellant, obtained Possession of the deed
and had it recorded on January 28, 1991.
Appellant's complaint asserted that he had
no adequate legal remedy and that he
Should obtain equitable relief declaring
the delivery of the deed to appellee
invalid and setting aside the conveyance
of real Property to appellee. Appellee
subsequently filed an answer which
contended, in part, that appellant was
3A
"estopped from seeking equitable relief
because he has attempted to defraud both
defendant and the court."
Two trial court judges recused
themselves upon motions of appellant.
Appellant's second recusal motion
explicitly requested that the case be
heard by the same judge who had presided
over appellant's divorce case in Case No.
90-DR-306 in part, because that judge was
familiar with the "property issue." The
case was then so assigned.
A bench trial was subsequently held
upon appellant's complaint for equitable
relief, and the folilowing, pertinent
evidence was adduced. Appellant owns and
operates Tile Blackburn Construction
Company. He was married to Carolyn
Blackburn. In July of 1987, he engaged in
an extramarital affair with appellee. In
1988, appellant left his wife and moved
into an apartment he owned in Portsmouth
4A
while he continued his relationship with
appellee. In September 1989, appellee
ended her relationship with appellant
because he had not yet divorced his wife.
According to appellee, appellant promised
to buy her a house, a car, an engagement
ring, and a wedding ring if she resumed
their relationship. Appellant testified
that he only promised appellee these
things if and when they got married.
Violet Cox-Fain, a licensed independent
social worker and a licensed professional
counselor, testified that she conducted
joint counseling sessions with appellant
and appellee in late September and early
October of 1989 and that during these
meetings, appellant told appellee that if
she would continue their relationship, he
would purchase her a house and a car.
On October ms 1989, appellant
purchased an engagement ring anda
wedding ring and gave them to appellee.
SA
Thereafter, appellee and her mother
advised him that they had found a house
located at 5270 Oakland Boulevard,
Sciotoville, Ohio. Appellant paid for a
title search and a survey of the property,
and on October 19, 1989, he borrowed
$90,000 from a bank in Portsmouth. On
October 20, 1989, he went to Ironton,
Ohio, and had an attorney prepare a deed
to the real property from Ronald and
Phyllis Lauder to appellee. The purchase
price was $82,000. Appellant then had his
secretary, Glenda Willis, prepare a second
deed which listed himself as grantee. The
deeds were executed by Ronald and Phyllis
Lauder in South Point, Ohio, at a closing
which appellant arranged and attended.
Appellee was not present at the closing.
Appellant then gave the original
deeds to his secretary with instructions
not to release the deeds to anyone but
him. On October 21, 1989, appellant gave
6A
appellee the keys to the house and she and
appellant moved in. The utilities were
all placed in appellee's name. On
November 2, 1989, appellant filed for a
divorce from his wife. In December of
1989, appellant leased a GEO Tracker
automobile and gave it to appellee to use.
The parties' relationship became strained
because appellee was constantly asking
that appellant record the deed or give her
the deed. Appellee was unaware of
appellant's other deed which listed
himself as grantee.
In April, 1990, the Parties had a
fight and appellant voluntarily moved out
of the subject property. Marilyn
Springer, appellee's mother, then moved in
with appellee at the Sciotoville property.
Appellant moved back to his marital
domicile and attempted a reconciliation
with his wife. On April 27, 1990,
appeliant dismissed his Previously filed
7A
_ OO
divorce complaint. When the
reconciliation failed, appellant moved
back to his Portsmouth apartment and
attempted to resume his relationship with
appellee. On June 19, 1990, appellant
filed a second divorce complaint.
According to appellant's testimony,
appellee told him that if he gave the deed
to the property with appellee's name as
grantee to appellee's stepfather, Claude
Springer, to hold for him, then appellant
could move back in with appellee and try
to work things out. On July 11 or 12,
1990, appellant took the original deed
naming appellee as grantee from his
secretary and gave it to Claude Serinece
to hold for appellant's benefit. Both
appellant and Claude Springer testified
that the deed was only to be transferred
to appellee or recorded if: (1) appellant
was not divorced by July 12, 1991 or (2)
appellant died.
8A
Neither of these conditions occurred.
Appellant moved back into the Sciotoville
Property with appellee and her mother.
On October 29, 1990, his wife's
divorce attorney took appellant's
deposition in the context of the divorce
Proceeding. A pretrial statement listed
the Sciotoville Property as an asset
purchased in October of 1989, and that it
was to be appellant's "future home." When
questioned about the Property by his
wife's attorney, appellant testified he
had no ownership interest in the property,
that he had purchased it for appellee, and
that the deed was made out to appellee.
Appellant did not state in the deposition
that he had directed the execution of
another deed to the Property in his own
hame. Appellant testified at trial in the
case at bar that he had the deed to
appellee drafted in Ironton because he did
not want his wife to know about it and
9A
—_ a
that if he went bankrupt, there was a
"possibility" that he might want to keep
the bankruptcy court from finding out
about it. Conversely, appellant further
testified that he told his wife prior to
the divorce trial about the two deeds and
the Sciotoville property and that he never
anticipated and never, in fact, filed for
bankruptcy.
In January of 1991, the parties again
had a physical fight, and, once again,
appellant voluntarily moved out of the
Sciotoville property. Without either
appellant or Claude Springer's knowledge
Or consent Marilyn Springer took the deed
naming appellee as grantee of the
Sciotoville property from Claude
Springer's safe and gave it to appellee,
who caused the deed to be filed on January
28, 1991. Appellant lost the deed made
out to himself as grantee, and,
consequently, never filed it. Appellee
10A
testified that appellant gave her the deed
for a brief period on February 15, 1990,
but he took it back shortly thereafter.
Appellee admitted that she ultimately got
the deed when her mother took the deed
from the safe in which Claude Springer had
placed it.
On November 15, 1991, the trial court
entered a judgment in appellee's favor on
the basis that appellant had no legal
cause of action and did not come to court
with clean hands so as to entitle him to
equitable relief. Appellant subsequently
filed a motion for new trial with an
attached affidavit of his ex-wife stating
that she knew as early as April of 1990
about appellee's purchase of the
Sciotoville property. The trial court
overruled appellant's motion on December
4, 1991.
Appellant's first assignment of error
asserts that the trial court's findings of
11A
fact in denying his claim for equitable
relief were against the manifest weight of
the evidence. Judgments supported by some
competent, credible evidence going to all
the essential elements of the case will
not be reversed by a reviewing court as
being against the manifest weight of the
evidence. State, ex rel. Pizza, v. Strope
(1990), 54 Ohio St. 3d 41, 46; see, also
Eberly v. A-P Controls,Inc. (1991), 61
Ohio St. 3d 27, 30.
In the trial court's journal entry of
November 15, 1991, it specifically listed
under it heading "FACTS" the following:
x * & He surreptitiously purchased
the house in question in this case
and put the deed in defendant Tudor's
name. His divorce was then pending
and he did not want this property
considered as a marital assets. In
fact, during the divorce hearing,
under oath, he denied any ownership
12A
Or interest in the property, and in
fact, the asset was not considered by
the Judge in dividing the marital
property. (That Judge, incidentally,
was the same Judge as the Judge in
this case).
(Emphasis added. )
Appellant specifically contends on
appeal that the foregoing finding of fact,
i1.e., what occurred at this divorce trial,
was unsupported by evidence in the case at
bar. On May 22, 1991, the trial court in
the divorce case sealed the record on
appellant's motion based on appellant's
representation that it would affect his
financial condition and his business if
his competitors obtained information
contained in the divorce proceedings. On
May 29, 1991, appellee filed a mistitled
"MOTION IN LIMINE" which actually sought
court approval to utilize appellant's
13A
pretrial deposition in the divorce trial
to “show that Blackburn previously denied,
under oath, ownership of the property he
now claims to own." At trial in the
instant case, the trial court granted
appellee's motion and allowed utilization
of evidence from the divorce proceedings
regarding the Sciotoville property, and
further stated as follows:
x k & Actually it just so happens
that you have the same Judge now as
you had in that action. And I
couldn't divorce that particular
testimony from my mind anyway. If
you know what I mean. And if it has
any relevance in this case I'll so
consider it. * * *
During the trial, although appellant
testified on cross examination about
answers he gave during a pretrial
deposition in the divorce case, there was
no evidence that such deposition was
14A
subsequently introduced into evidence at
the divorce trial or that appellant
testified at the divorce trial that he had
no ownership or interest in the
Sciotoville property. Therefore, it is
apparent that the trial court, in effect,
took judicial notice of the prior divorce
proceeding which it had presided over.
However, the rule is well established
in Ohio that trial courts may not take
judicial notice of their own proceedings
in other cases, even though the same trial
judge may have presided. Myers v. State
(1889), 46 Ohio St. 473; State, ex rel.
Crow, v. Weygandt (1959), 170 Ohio St. 81;
In the matter of Pyle (May 6, 1992),
Belmont App. No. 91-B-27, unreported;
Kerns v. Mansfield (Dec. 15, 1989), Logan
App. No. 8-87-20, unreported. Therefore, a
trial court may not take judicial notice
of prior proceedings in the court, but may
only take judicial notice of prior
15A
proceedings in the immediate case.
Diversified Mortgage Investors, Inc. Vv.
Bd. of Revision (1982), 7 Ohio App. 3d
157; see State v. Bialek (Feb. 17, 1992),
Montgomery App. No. 12323, unreported,
where the appellate court noted that
adoption of Evid. R. 201 has not modified
the foregoing precedent. The rationale
for these holdings is that when judicial
notice is taken of prior proceedings, such
prior proceedings are not part of the
record as defined in App. R. 9, and
whether the trial court correctly
interpreted such prior proceedings is not
reviewable by the appellate court. Accord
v. Accord (April 22, 1981), Pike App. No.
329, unreported.
Based on the foregoing, the trial
court's findings of fact relating to the
"divorce hearing" and its divorce decree
were not supported by competent, credible
evidence and, consequently, were against
16A
the manifest weight of the evidence.
Nevertheless, in order to Support a
reversal of a judgment, the record must
Show affirmatively not only that error
intervened, but that such error was to the
prejudice of the party seeking such
reversal. Gries Sports Enterprises, Inc.
v. Cleveland Browns Football Co. (1986),
26 Ohio St. 3d 15, 18; Lowry v. Lowry
(1988), 48 Ohio App. 3d 184, 190. The
“harmless error" rule of Civ. R. 61
requires courts to disregard errors which
do not affect the substantial rights of
the parties. Rouse v. Rouse (July 8,
1991), Jackson App. No. 653, unreported.
Here, the record affirmatively
indicates that the trial court erroneously
relied upon evidence which was not
properly introduced in the case,
Moreover, it placed special emphasis on
the improperly considered evidence in its
judgment entry which determined that
17A
appellant was not entitled to equitable
relief. Although other evidence properly
introduced at trial would have supported
the trial court's ultimate conclusion, see
our discussion and disposition of
appellant's second assignment of error,
infra, we may not’ presume that the
erroneous taking of judicial notice of
evidence was harmless, i.e., that the
trial court in exercising its discretion
without the improper evidence necessarily
would have reached the same conclusion.
Cf., e.g., Spencer v. Spencer (April 29,
1991), Clark App. No. 2724, unreported
(trial court's factual error not harmless
although, without the error it would have
been within its discretion to reach the
same judgment and where’ the record
affirmatively indicated such factual
error). Appellant's first assignment of
error is sustained.
Appellant's second assignment of
18A
~
error asserts that the trial court erred
in denying him equitable relief. The
trial court determined that appellant was
not entitled to equitable relief because
he did not come to court with clean hands.
Appellant contends that several facts
manifested his intention not to relinquish
control of the deed and that appellant
obtained possession of the deed through no
fault of his own. The essential elements
of a valid gift inter vivos are: (1) an
intention on the part of the donor to
transfer the title and right of possession
of the particular property to the donee
then and there and (2) in pursuance of
this intention, a delivery by the donor to
the donee of the subject matter of the
gift to the extent practicable or
possible, considering its nature, with
relinquishment of Ownership, dominion and
control over it. Bolles v. The Toledo
Trust Co. (1936), 132 Ohio St. 21, first
19A
2
paragraph of the syllabus; Dillon v.
Dillon (Dec. 6, 1991), Pickaway App. No.
90CA33, unreported. The trial court
essentially found that there was no
delivery of the deed to appellee from
appellant but that the deed was given to
appellee's stepfather "to hold pending
certain conditions." However, the trial
court did not find the absence of any
delivery significant because of
appellant's deception regarding the
Sciotoville property.
The cardinal maxim of equity
jurisprudence, that he who comes into
equity must come with clean _ hands,
requires that the party seeking equitable
relief not be guilty of reprehensible
conduct with respect to the subject matter
of the suit. Basil v. Vincello (1990),
50 Ohio St. 3d 185, 190; Ossenbeck v.
Calhoun & Vine Realty Co. (Nov. 13, 1991),
Hamilton App. No. C-900592,
20A
unreported; Marinaro v. Major _ Indoor
Soccer League (June 19, 1991), Summit App.
No. 14877, unreported. One who has acted
fraudulently or acted in bad faith is not
entitled to equitable relief. Kettering
v. Berger (1982), 4 Ohio App. 3d 254, 261-
262.
Appellant admits that appellee has a
Superior legal right to the property, by
virtue of appellee's recording of the
deed, but claims that he has a Superior
equitable right to the property since none
of the conditions for delivery by his es-
Crow agent, Claude Springer, has ever been
fulfilled, ( and the trial court agreed in
its findings of fact), and it would be un-
conscionable to give appellee and $82,000
windfall. However, the foregoing would
not preclude the trial court from denying
equitable relief based upon the clean
hands doctrine. There was evidence in-
troduced below that appellant,
21A
while contemplating divorce, deceived his
wife regarding the property and would have
deceived the bankruptcy court had he filed
for bankruptcy. Moreover, in a pretrial
divorce deposition which he testified
about below, appellant disclaimed any
ownership interest in the property. Al-
though the evidence introduced at trial
could lead to different conclusions re-
garding the applicability of the clean
hands doctrine,l the trial court acted
1 Appellant's testimony contradicted the
foregoing as well by noting that his
ex-wife was aware of his purchase of
the Sciotoville property prior to the
divorce (in other words, there was ul-
timately no deception of his wife at
the time of the divorce). We emphasize
that we do not condone appellee or her
mother's actions in the case at bar.
Moreover, we parenthetically agree with
appellant's assertion on appeal that
"[g]ood morals" are not necessarily co-
extensive with equitable considera-
tions. However, although we might not
have reached a similar conclusion re-
garding the clean hands doctrine's
application to the case at bar even
when considering the erroneously judi-
cially noticed evidence if we were sit-
ting as the trier of fact, the con-
flicting evidence appears to support a
judgment in favor of either party in
the case sub judice.
22A
within its discretion to deny equitable
relief to appellant where some evidence of
reprehensible, fraudulent conduct on his
part is apparent on the record.
Therefore, without considering the error
committed by the trial court as discussed
under appellant's first assignment of
error, supra, appellant's contentions as
to a failure of delivery conditions and a
windfall to appellee are meritless.
Appetlant's second assignment of error is
overruled.
Appellant's third assignment of error
asserts that the trial court erred in
permitting Violet Cox-Fain to testify
regarding privileged communications with
appellant. Cox-Fain, a licensed
independent social worker and professional
counselor, testified over appellant's
objection that during joint counseling
sessions with the parties, appellant
promised appellee that if she would
23A
continue their relationship, he would
purchase her a house and car.
Because the law of privilege is
substantive in nature statutory provisions
control. Evid. R. 501; State v. Smorgala
(1990), 50 Ohio St. 3d 222. The pertinent
statutory provision provides that 4
licensed or registered professional
counselor or social worker shall _ not
testify concerning 4 confidential
communication made to him/her by his/her
client in that relation or his/her advice
to the client unless:
(a) x * *®
(b) The client gives express consent
to the testimony.
(c) * * *
(d) The client voluntarily testi-
fies,in which case the school gui-
dance counselor or person licensed or
registered under Chapter 4757., of
the Revised Code and rules adopted
24A
under it may be compelled to testify
on the same subject.
(e) * * *®
(£) * * &
ni 2317.02 (G) (1) (emphasis
added).
Although appellee contended below and
asserts on appeal that Cox-Fain's
testimony was not Privileged because it
was made in appellee's presence, this is
not one of the listed statutory excep-
tions, although it is a valid statutory
exception to the husband-wife privilege.
see R.C. 2317.02(D). Additionally, we
are not persuaded that a statement made in
the presence of another "client" during
joint counseling should necessarily be
deprived of the benefit of this privilege
where the statute does not so provide.
Nevertheless, in the case at bar, appel-
lant voluntarily testified that he had
promised appellee a house only if they
25A
got married, and cCox-Fain's testimony
properly rebutted that by specifying that
appellant's promises were conditioned only
upon appellee resuming their relationship.
See R.C. 2317.02(G) (1) (d). Moreover,
any error in the admission of Cox-Fain's
testimony was arguably harmless where the
trial court's holding was not based upon
such evidence but relied instead on
appellant's alleged deception to invoke
the clean hands doctrine. See In re
Decker (1984), 20 Ohio App. 3d 203 (error
in admission of privileged communications
was harmless error where it could not have
changed the result of the trial). In that
we find no error in the admission of Cox-
Fain's testimony where it related to the
same subject as appellant's voluntary
testimony, appellant's third assignment of
error is overruled.
Appellant's fourth intemal of
error asserts that the trial court erred
26A
in failing to allow him to amend his
complaint to add Claude and Marilyn
Springer as defendants and to assert
claims against’ them. Notice of the
October 30, 1991, trial in the instant
case was mailed on September 26, 1991. On
September 27, 1991, appellant took the
depositions of Claude and Marilyn
Springer. On October 30, 1991 just prior
to the commencement of the bench Criai,
appellant's counsel orally moved to amend
the complaint to include the Springers as
defendants. The trial court overruled the
motion.
Civ. R. 15(A) provides in part:
(A) Amendments.
A party = may amend his
pleading once as a matter of course
at any time before a responsive
pleading is served or, if the
pleading is one to which no
responsive pleading is permitted and
27A
the action has not been placed upon
the trial calendar, he may so amend
it at any time within twenty-eight
days after it is served. Otherwise a
party may amend his pleading only by
leave of court or by written consent
of the adverse party. Leave of court
shall be freely given when justice so
requires. * * *
BR trial court's decision not to grant
leave to amend a complaint will not be
reversed absent an abuse of discretion.
Wilmington Steel Products, Inc. Vv. Cleve.
Elec. Illum. Co. (1991), 60 Ohio St. 3d
120; Solowitch v. Bennett (1982), 8 Ohio
App. 3d 115. The term “abuse of dis-
cretion" connotes more than an error of
law or of judgment; it implies that the
court's attitude is unreasonable,
arbitrary or unconscionable.
Wilmington, supra, at 122. In the
instant case, although appellant took
28A
depositions of the Springers on September
27, 1991, appellant waited over a month
until the day of trial to Orally request
leave to amend the complaint, and then did
not present any oral argument as to why
such leave should be granted prior to the
trial court's oral ruling. When a
plaintiff fails to make a Prima facie
showing of support for new matters sought
to be pleaded, a trial court acts within
its discretion to deny a motion to amend
the pleading. Id., at syllabus. Moreover,
although appellant claims on appeal that
he did not request a continuance of the
trial based upon the deposition testimony
of the Springers because he was “informed
by the trial court that no continuances
would be granted" and therefore he "had no
choice but to wait until the morning of
the trial to request that the Springers be
added as parties," the record on ieeent
does not contain any evidence to Support
29A
pr a y
a TN ee ee ee gs re
these contentions. Accordingly, we find
no abuse of discretion on the part of the
trial court in overruling appellant's oral
motion for leave to amend his complaint on
the day of the trial. Appellant's fourth
assignment of error is overruled.
In that we have sustained appellant's
first assignment of error, the judgment is
reversed and remanded to the trial court
for a redetermination of appellant's
complaint without considering the
“evidence” it erroneously took judicial
notice of concerning appellant's divorce
trial.
JUDGMENT REVERSED AND CAUSE REMANDED.
30A
BLACKBURN V. TUDOR - SCIOTO APP. NO. 2021
Stephenson, P.J. Concurring:
I concur in the majority judgment an
Opinion, but write separately in order to
express certain reservations. The court
below opined that there were several]
reasons why appellant did not prevail on
his claim and one of these was because
“"Chje has no legal cause of action, for he
is not in the chain of title." Obviously
if appellant could not have maintained a
claim for canceling the deed below, then
any mistake by the court in considering
the previous divorce action would have
been harmless error.
The results of my own research tend
to support the conclusion of the trial]
court on this issue. As a general rule,
only a party to an instrument Or one in
Privity therewith is entitled to maintain
a suit to cancel or rescind that
instrument. See cases cited in 12A Corpus
31A
Juris Secundum (1980) 741, Cancellation of
Instruments, Section 63a. Thus, the
grantor in a deed is the proper party
plaintiff in a suit to cancel such
document. Id. at 764, Section 72. This
would appear to be the law in Ohio. See
jn
tevens v. McCoy (1899), 60 Ohio St. 540,
548 (right of action for recision of
conveyance is personal unto grantor); also
see Euclid Stores Co. v. Willard (App.
1929), 7 Ohio Law Abs. 633, 634 (right to
maintain an action for recision and
cancellation of an instrument is reserved
unto the parties involved in the
transaction).
Although appellant executed the real
estate purchase contract (introduced below
as plaintiff's exhibit 3), such contract
merged into the subsequent deed. See 37
Robinwood Associates v. Health Industries,
Inc. (1988), 47 Ohio App. 3d 156, 157-138;
Medeiros v. Guardian Title & Guaranty
32A
Agency (1978), 57 Ohio App. 2d 257, 259;
Mayer v. Sumergrade (1960), 111 Ohio App.
37, 23%. The deed at issue herein
(introduced below as plaintiffs exhibit
1), reveals the Lauders as Qrantors and
appellee as grantee. Thus, under the
general rule discussed above, only these
parties could maintain a cause of action
to cancel or rescind the deed. Appellant
was neither a party to the conveyance nor
in privity With one who was and,there-
fore, stands outside that class of
individuals generally recognized as being
able to maintain such an action.
Some jurisdictions have carved out
exceptions to this general rule and allow
@ person who was not a Party to the
instrument to sue so long as he had legal
Or equitable rights at stake. See cases
cited in 13 American Jurisprudence 2d
(1964) 537, Cancellation of Instruments,
section 54. However, I find no authority
33A
for the proposition that Ohio has embraced
such an exception. Perhaps we should and
perhaps we should not; there are logical
arguments on both sides.
This is a nebulous area of the law
and neither party has'7 briefed this
particular issue. I therefore do not base
my decision on these grounds.
Nevertheless, I am not fully persuaded
that Ohio law allows for appellant to have
maintained the action below. With this
caveat in mind, I concur in the majority
judgment and opinion.
34A
Scioto App. No. 2021
(Blackburn v. Tudor)
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE
REVERSED AND CAUSE REMANDED to the trial
court for further proceedings consistent
with this opinion and that Appellant
recover of Appellee costs herein taxed.
Tie Court finds there were reasonable
grounds for this appeal.
It is ordered that a special mandate
issue out of this Court directing the
Scioto County Court of Common Pleas, to
carry this judgment into execution.
Any stay previously granted by this
Court is hereby terminated as of the date
of this Entry.
A certified copy of this entry shall
constitute the mandate pursuant to Rule 27
of the Rules of Appeliate Procedure.
35A
Exceptions.
Stephenson, P.J., Concurs
with attached Concurring Opinion.
Abele, wis Concurs in Judgment
Opinion.
For the Court
/s/
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. ll,
and
this
document constitutes a final judgment
entry and the time period for further
appeal commences from the date of filing
with the clerk.
36A
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
Thomas L. Blackburn Plaintiff-Appellant
vs.
Rebecca L. Tudor Defendant-Appellee
Case No. 2021
PLAINTIFF'S NOTICE OF APPEAL
TO THE SUPREME COURT OF OHIO
Plaintiff-Appellant, Thomas L. Black-
burn, hereby gives notice that he appeals
the decision of the Fourth Appellate Court
of Appeals dated September 25, 1992, to
the Supreme Court of Ohio. This Notice
is filed in accordance with Rule I(A) of
the Rules of Practice of the Supreme Court
of Ohio. Appellant intends this motion
to be ‘a motion to certify the record,
as provided in Rule II, sectian 2, of
the Rules of Practice of the Supreme
Court of Ohio. Counsel for appellant
37A
below was Gerlach, Gerlach, & Gerlach, and
Mrs. Cynthia Gerlach. Counsel for
appellee below was McCurdy, Johnson,
Ruggiero, McKenize, and Bender, and
Stanley C. Bender.
GERLACH, GERLACH & GERLACH
BY: /S/
Cynthia Koehler Gerlach
Attorney for Plaintiff
0029669
618 Chillicothe Street
Portsmouth, Ohio 45662
Phone 614/354-5297
PROOF OF SERVICE
This is to certify that on the 19th
Day of October, 1992, and pursuant to Rule
I(B) of the Rules of practice of the
Supreme Court of Ohio, a true and correct
copy of the foregoing Notice of Appeal was
mailed, to Stanley C. Bender, Attorney for
Defendant-Appellee, to his office at P.O.
Box 950, Portsmouth, Ohio 45662.
38A
GERLACH, GERLACH & GERLACH
BY [s/
Cynthia Koehler Gerlach
Attorney for Plaintiff
39A
IN THE SUPREME COURT OF OHIO
AT
COLUMBUS, OHIO
THOMAS L. BLACKBURN,
Plaintiff-Appellant
Case No.92-2306
Vs.
REBECCA TUDOR,
Defendant-Appellee
APPELLANT'S BRIEF IN SUPPORT OF
JURISDICTION
CYNTHIA KOEHLER GERLACH
814 Seventh Street
Portsmouth, Ohio 45662
Attorney for Plaintiff-Appellant
STANLEY C. BENDER
P.O. Box 950
Portsmouth, Ohio 45662
Attorney for Defendant-Appellee
40A
_
TABLE OF CONTENTS
PAGE NO.
Table of Contents 2
Table of Authorities 2
Statement of the Facts and the Case 2
Argument o
Proposition of Law No. 1 4
Proposition of Law No. 2 5
Certificate of Service 6
APPENDIX 7
TABLE OF AUTHORITIES
PAGE NO.
CASES AND STATUTES:
n.¢. 2305: 29 3, §
5 0. Jur.3d, Appellate Review,
Sections 7062, 717, and 719 5
Strock v. Presnell, 38 0.8.3d 207,527
N.E.2d 1235 (1988); 5, 6
Slusher v. Oeder, 16 O.App.3d 432,476
N.E.2d 714, 16 OBR 503 (1984); re
41A
INTRODUCTION
Plaintiff-Appellant, Thomas L.
Blackburn, hereby presents his brief in
support of jurisdiction, pursuant to Rule
II, Section 4 of the Rules of Practice of
the Supreme Court.
This is an appeal from a judgment
rendered by the Court of Appeals for the
Fourth Appellate District of Ohio. A copy
of the judgment appears in the appendix
hereof, as Exhibit A. The case originated
in the Scioto County Court of Common
Pleas. Assertion of jurisdiction over
this case is of public interest because an
opinion on the issues presented by this
appeal will clarify the scope of R.C.
2305.29, which relates to breaches of
promise to marry.
STATEMENT OF THE CASE AND OF THE FACTS
The parties were engaged to _ be
married. Appellee, for no good cause,
terminated the engagement. While engaged,
42A
appellant purchased real property, to be
given to appellee when they married. A
deed was prepared conveying this property
to appellee and placed with an escrow
agent. After terminating the engagement,
appellee surreptitiously recorded the
deed. When appellant discovered this, he
filed an action in the Scioto County Court
of Common Pleas. The action came on for
criael. Judgment was’ rendered favoring
appellee. Appellant appealed to the Court
of Appeals for the Fourth Appellate
District.
The Appellate Court, on September 25,
1992, found that the trial judge had
allowed improper evidence to be introduced
into the case, vacated the judgment, and
remanded the case to the trial court with
instructions for the trial judge to
consider the case without the improper
evidence. On October 16, 1992, the trial
judge entered a "Revised Judgment Entry",
43A
reinstating his original decision. A copy
of the judgment appears in the appendix
hereof, as Exhibit B.
A motion to stay enforcement of the
judgment is being filed contemporaneously
with this Brief.
On October 19, 1992, appellant filed
his notice of appeal to this Court, in
accordance with Rule I(A) of the Rules of
Practice of the Supreme Court of Ohio. A
copy of the notice appears in the appendix
hereof, as Exhibit C.
ARGUMENT
Proposition of Law No. 1:
When remand of a case froma Court of
Appeals is based upon the trial court's
use of improper evidence, the remand must
be for a new trial. Remand should not be
merely with directions to consider the
case without the improper evidence.
Authorities cited in support of
proposition of Law No. 1:
44A
5 0.Jur.3d, Appellate Review, Sections
702,717, and 719;
Where there is a remand based upon
the evidence presented at the trial, such
remand normally contemplates a new trial.
A remand which directs that the trial
judge merely reconsider his opinion
without the prejudicial evidence presents
problems for all parties. A remand of
this type does not afford appellant the
full measure of relief contemplated by the
Appellate Rules. Secondly, it forecloses
any Opportunity for either party to file a
motion for recusal of the trial judge.
Thirdly, it allows the trial judge's
memory to supplant the actual record of
the case. If a new trial is ordered by
the appellate court, the parties may then
agree to have the case submitted on the
existing record, if those parties believe
that such is in their best interest. See
generally, 5 0.Jur.3d, Appellate Review,
45A
Dia cso i a a ne tne a
Section 702, 717, and 719 and the cases
cited therein.
Appellant urges this Court to assert
its jurisdiction over this matter, in
order to give its opinion on this issue of
general importance to the public.
Proposition of Law No. 2:
Pursuant to R.C. 2305.29, a party may
maintain an action to recover ownership of
real property that was transferred to
another in contemplation of marriage,
where the engagement has been terminated.
Authorities cited in Support of
proposition of Law No. 2:
m.G. 2a00.09%
Strock v. Presnell, 38 0.8.3d 207,527
N.E.2d 1235 (1988);
Slusher v. Oeder, 16
O
»
i @)
4 @)
(w
oF
yes
Ww
ho
ye
j
O*
N.E.2d 714, 16 OBR 503 (1984);
Concurring opinion of Stephenson,
Exhibit A of the appendix:
460A
Under prior law, R.C. 2305.29 allowed
recovery of such damages as loss of
opportunity for companionship with Others,
embarrassment, and the like for breach of
promise to marry. That is no longer true.
Under present law, only tangible items
transferred in contemplation of marriage
may be recovered, when the engagement is
terminated. There is little question
regarding this, where personal property is
involved. There exists, however, some
question when the Property sought to be
recovered is” real Property instead of
personalty, where there has been a
transfer of ownership. See, generally,
Strock v. Presnell, 38 0.8.3d 207, 527
N.E.2d 1235 (1988) and Slusher v. Oeder,
16 O.App.3d 432, 476 N.E.2d 714, 16 OBR
503 (1984). See, also the concurring
opinion of Stephenson, J., Exhibit A of
the appendix, which is hereby incorporated
by reference. Appellant urges this Court
47A
to assert its jurisdiction over this
matter, in order to give its opinion on
this issue of general importance to the
public.
Some direction to the trial courts of
Ohio, as to the application of the clean
hands doctrine, in such causes of actions
would aiso be helpful to a court in
determining the validity of such claims.
WHEREFORE, for the reasons set forth
above, appellant prays that this Court
assert its jurisdiction over this matter.
GERLACH, GERLACH & GERLACH
BY /s/
Cynthia Koehler Gerlach
Attorney for Plaintiff
0029669
814 7th Street
Portsmouth, Ohio 45662
Phone 614/354-7755
48A
CERTIFICATE OF SERVICE
This is to certify that, on November
18, 1992, and pursuant to Rule 1(B) of the
Rules of Practice of the Supreme Court of
Ohio, a true and correct copy of the
Foregoing Notice of Appeal was mailed,
postage prepaid to Mr. Stanley C. Bender,
Attorney for Defendant, to his office at
P.O. Box 950, Portsmouth, Ohio 45662
GERLACH, GERLACH & GERLACH
Ls/
Cynthia Koehler Gerlach
Attorney for Plaintiff
49A
APPENDIX AND ITS CONTENTS
Decision of the Court of Appeals for the
Fourth Appellate District. EXHIBIT A*
Revised Judgment of the Scioto County
Court of Common Pleas EXHIBIT B**
Notice of Appeal to the Ohio Supreme Court
EXHIBIT C***
EXHIBIT A * PAGES 1A THRU 36A
EXHIBIT B ** PAGE 51A THRU 53A
EXHIBIT C *** PAGES 37A THRU 39A
SOA
IN THE COURT OF COMMON PLEAS
SCIOTO COUNTY, OHIO
THOMAS L. BLACKBURN, PLAINTIFF
-vs-
REBECCA L. TUDOR, DEFENDANT
CASE NO. 91-CI-136
REVISED JUDGMENT ENTRY
* x *x + x *x *
——
This cause comes on to be heard upon
a Mandate from the Court of Appeals as
follows:
“In that we have sustained
Appellant's first assignment of error, the
Judgment is reversed and remanded to the
Trial Court for a redetermination of
Appellant's Complaint Without considering
the evidence it took Judicial Notice of
concerning Appellant's former aes.
There was no intention of the Common
Pleas Court, hearing the facts in this
case, to rely upon any evidence in the
Appellant's former Divorce Trial as it is
S1A
completely unnecessary to a Judgment in
this case. An examination of Appellant's
testimony in this case, on Cross
Examination, reveals a pattern of
deception both to his wife and also to his
new girlfriend, who didn't know that he
had two deeds made to the property. In
this case he affirmed that he _ had
previously under oath, denied any
ownership in the property. It is also
undisputed that the Appellant is not in
the chain of title of the property.
Cherefore, I reaffirm my previous decision
based solely upon the facts of this case
as follows:
1. The Appellate was not entitled to
legal relief not being in the chain of
title (by his own choosing).
2. Under the facts of this case and
by any existing maximum of equity, he did
not have clean hands and was not entitled
to equitable relief.
52A
ee | | ee
THOMAS W. MITCHELL, JUDGE
SITTING BY ASSIGNMENT
COMMON PLEAS COURT
SCIOTO COUNTY, OHIO
53A
eS ee
THE SUPREME COURT OF OHIO
1993 TERM
TO WIT: FEBRUARY 10, 1993
THOMAS L. BLACKBURN, APPELLANT
V.
REBECCA TUDOR, APPELLEE
CASE NO. 92-2306
ENTRY
Upon consideration of the motion for
an order directing the Court of Appeals
for Scioto County to certify its record,
it is ordered by the Court that said
motion is overruled.
COSTS: Motion fee, $40.00 paid by Thomas
Blackburn.
(Court of Appeals No. 2021)
/s/
THOMAS J. MOYER
Chief Justice
54A
IN THE SUPREME COURT OF OHIO
AT
COLUMBUS, OHIO
THOMAS L. BLACKBURN, Petitioner-Appellant
VS.
REBECCA TUDOR, Respondent-Appellee
CASE NO. 92-2306
PETITIONER'S MOTION TO STAY
ENFORCEMENT OF JUDGMENT
AND
FOR VACATION OF SAME
Comes petitioner, by and through
counsel, and moves this Court to enter an
Order staying enforcement of an order
rendered by the Scioto County Court of
Common Pleas, on or about October 16,
1992, pending a decision by this Court as
to whether the order ought to be vacated.
A short memorandum in support of this
petition appears below.
55A
MEMORANDUM IN SUPPORT OF PETITION
On September 25, 1992, the Court of
Appeals for the Fourth Appellate District
of Ohio rendered its Decision and Judgment
Entry respecting this case. On October
16, 1992, prior to expiration of the
thirty day period allowed to appeal to
this Court, the trial judge entered a
document captioned "Revised Judgment
Entry” a copy of which is attached to this
petition and made a part hereof, being
designated as Exhibit A. On October 139,
1992, within the thirty day period to
appeal, appellant filed his Notice of
Appeal to the Ohio Supreme Court, with the
clerk of the Court as required by Rule
I(A) of the Rules of Practice of the
Supreme Court of Ohio. A copy of this
notice was sent to opposing counsel. An
inspection of the above dates shows that
the trial court's judgment was prematurely
entered.
S6A
Notwithstanding said notice, however,
appellee has placed the house, which is
the subject of this controversy, on the
open market, for sale to third parties.
This act is clearly in violation of R.c.
Sec. 2703.26. Appellant, however, has no
adequate remedy at law. Filing a motion
for relief from the judgment, pursuant to
Civ.R.60(B), by its terms, will not tol]
the time in which to file a brief in
Support of jurisdiction, required by Rule
4(A) of the Rules of Practice of the
Supreme Court of Ohio. Nor will such a
motion keep the property from being sold,
during the pendency of the motion.
Appellant filed his brief
contemporaneously with filing this
petition.
It is the intention of R.C. Sec.
2703.26 to protect the public interest,
and to forbid third parties from obtaining
any interest in real property, while
57A
ownership of the property is in dispute,
as it is in this case. For this reason,
granting of this petition is in the public
interest.
WHEREFORE, for the reasons set forth
above, appellant prays that this petition
be sustained and that an order issue
forbidding appellee to enforce the
premature judgement until this Court has
passed upon the Brief in Support of
Jurisdiction, filed herein.
GERLACH, GERLACH & GERLACH
BY /s/
Cynthia Koehler Gerlach
Attorney for Plaintiff
0029669
814 7th Street
Portsmouth, Ohio 45662
Phone 614/354-7755
58A
CERTIFICATE OF SERVICE
This is to certify that, on November
18, 1992, and pursuant to Rule 1(B) of the
Rules of Practice of the Supreme Court of
Ohio, a true and correct copy of the
Foregoing Notice of Appeal was mailed,
postage prepaid to Mr. Stanley C. Bender,
Attorney for Defendant, to his office at
P.O. Box 950, Portsmouth, Ohio 45662
GERLACH, GERLACH & GERLACH
Ls/
Cynthia Koehler Gerlach
Attorney for Plaintiff
59A
IN THE COURT OF COMMON PLEAS
SCIOTO COUNTY, OHIO
THOMAS L. BLACKBURN, PLAINTIFF
-vs-
REBECCA L. TUDOR, DEFENDANT
CASE NO. 91-CI-136
REVISED JUDGMENT ENTRY
*x *x + * * x *x
This cause comes on to be heard upon
a Mandate from the Court of Appeals as
follows:
"In that we have sustained
Appellant's first assignment of error, the
Judgment is reversed and remanded to the
Trial Court for a redetermination of
Appellant's Complaint without considering
the evidence it took Judicial Notice of
concerning Appellant's former Trial."
There was no intention of the Common
Pleas Court, hearing the facts in this
case, to rely upon any evidence in the
Appellant's former Divorce Trial as it is
60A
completely unnecessary to a Judgment in
this case. An examination of Appellant's
testimony in this case, on Cross
Examination, reveals 4 pattern of
deception both to his wife and also to his
new girlfriend, who didn't know that he
had two deeds made to the property. In
this case he affirmed that he had
previously under oath, denied any
Ownership in the property. It is also
undisputed that the Appellant is not in
the chain of title of the property.
Therefore, I reaffirm my previous decision
based solely upon the facts of this case
as follows:
1. The Appellate was not entitled to
legal relief not being in the chain of
title (by his own choosing).
2. Under the facts of this case and
by any existing maximum of equity, he did
not have clean hands and was not entitled
to equitable relief.
61A
/s/
THOMAS W. MITCHELL, JUDGE
SITTING BY ASSIGNMENT
COMMON PLEAS COURT
SCIOTO COUNTY, OHIO
62A
THE SUPREME COURT OF OHIO
1992 TERM
TO WIT: NOVEMBER 20, 1992
THOMAS BLACKBURN,APPELLANT,
we
REBECCA TUDOR, APPELLEE.
CASE NO. 92-2306
ENTRY
This cause is pending before the
Court on the filing of a motion for an
order directing the Court of Appeals for
Scioto County to certify its record. Upon
consideration of appellant's motion for
Stay,
IT IS ORDERED by the Court that said
motion for stay be, and same is hereby,
denied.
/s/
THOMAS J. MOYER
Chief Justice
63A
IN THE SUPREME COURT OF OHIO
AT
COLUMBUS, OHIO
THOMAS L. BLACKBURN, Plaintiff-Appellant
vs.
REBECCA TUDOR, Defendant-Appellee
Case No. 92-2306
APELLANT'S MOTION FOR REHEARING EN BLANC
CYNTHIA KOEHLER GERLACH
814 Seventh Street
Portsmouth, Ohio 45662
Attorney for Plaintiff-Appellant
STANLEY C. BENDER
P.O. Box 950
Portsmouth, Ohio 45662
Attorney for Defendant-Appel lee
64A
Comes appellant, by and through
counsel, and moves this Court grant a
rehearing, pursuant to Rule IX of the
Rules of Practice of the Supreme Court, on
the decision to deny certification of the
record in this case. Appellant further
moves this Court that the hearing be an en
blanc hearing. A memorandum in support of
this motion appears below.
‘MEMORANDUM IN SUPPORT OF MOTION
The law in the area of recoverable
damages, ona a breach of promise to
marry, is not well developed in Ohio and
is -a-subject of general public interest.
The legislature's abrogation of the
previous common law damages, by enacting
R.C. 2305.29, has caused this ambiguity.
Appellant's damages are clearly in this
area. As was shown at the trial of this
action appellant was not at fault in
breaching the contract to marry; there was
a promise to marry; and in contemplation
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of that marriage, appellant purchased a
$82,000.00 home . The deed to this home
was not to be transferred to appellee,
until after the marriage. His partial
performance, in purchasing the house that
is the subject matter of this action,
takes this matter out of the purview of
the Statue to Frauds. Appellant did not
knowingly place appellee into a position
where she could obtain ownership rights in
the home, prior to the marriage. Appellee
obtained the deed from an escrow agent,
through nefarious means.
The decision not to order
certification of the record in this case
means that appellee will profit from her
own wrongdoing. The decision means also
that, contrary to the mandates of the Ohio
Constitution, the Courts of Ohio are not
open to this appellant, for redress of a
legitimate and clear wrong. This Court
should remedy this inequity. At the very
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}
least, appellant's right to redress should
be abrogated on the decision of al]
Justices of this Court.
WHEREFORE, for the reasons set forth
above, appellant prays that this Court
Sustains this motion.
Respectfully submitted,
GERLACH, GERLACH & GERLACH
BY Ls/
Cynthia Koehler Gerlach
Attorney for Plaintiff
0029669
814 7th Street
Portsmouth, Ohio 45662
Phone 614/354-7755
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CERTIFICATE OF SERVICE
This is to certify that, on February 26,
1993, and pursuant to the Rules of
Practice of the Supreme Court of Ohio, a
true and correct copy of the foregoing was
mailed, postage prepaid to Mr. Stanley C.
Bender, Attorney fer Defendant, to his
office at P.O. Box 950, Portsmouth, Ohio
45662
GERLACH, GERLACH & GERLACH
/[s/
Cynthia Koehler Gerlach
Attorney for Plaintiff
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THE SUPREME COURT OF OHIO
1993 TERM
TO WHIT: March 24, 1993
Thomas L. Blackburn, Appellant,
v.
Rebecca Tudor, Appellee.
CASE NO. 92-2306
REHEARING ENTRY
(SCIOTO COUNTY )
IT IS ORDERED by the Court that
rehearing in this case be, and the same is
hereby, denied.
(Court of Appeals No. 2021)
Ls/
THOMAS J. MOYER
Chief Justice
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