# Petition for Writ of Certiorari — Blackburn v. Tudor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2397%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 508 U.S. 973 ## Text 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 65A a 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 66A } 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 67A 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 68A 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 69A --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2397%3A1. Public record. Not legal advice.