Petition for Writ of Certiorari — Bikkani v. Lee (No. 08-994)

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STATES

Prasad Bikkani ---Petitioner

vr.

Rotan E Lee

North East Ohio Neighborhood Health Services

(NEON)

Total Health care Plan, Inc (THCP)

Scheur Management Group (SMG), Barry Scheur,

Robert McMillan, Robert Eichler, and Jimmy Dee

Ruth Aaron

Brenda Stevens Marshall and Frank Kimber

Moreno Miller

Paula Phelps

Arnold Pinkney/Beptin & Associates Inc

Joseph Davis

Matthew T. Fitzsimmons

Respondents

For Writ Of Certiorari

To The Court of Ohio Supreme Court

Case No. 2008-1667

Prasad Bikkani, Pro Se (Attorney Breen is

not registered with US Supreme Court, will

find soon an attorney for US Supreme Court

though Petitioner’s 12/5/2008 heart attack and

multiple hospital admissions prevented sofar)

3043 Forestlake Dr

Westlake, OH 44145 (440) 808-1259

Prasadbabu@aol.com

QUESTIONS PRESENTED:

Whether Ohio Vexatious and Frivolous charges are

appropriate when a materially falsifying attorney

controls the courts one court against the another

court (trial court, appeal court, Ohio Supreme Court)

to use opinions/decisions contrary to the facts with

half-truth to no truth and whether Due Process and

constitutional rights can be protected with self

dealing attorneys.

TABLE OF CONTENTS

Questions presented |

Table of Contents st eva

Table of Authorities ie

I) Jurisdiction of the case: 1-8

II) Statement ofthecase = is 8-10

IIT. Questions Presented & 10

ARGUMENT: 10

Questions Presented

Argument: 10-19

A) Due process and constitutional rights

during the appeal process as self dealing

attorney involved with serious

misrepresentation of facts

IV) Conclusion | 19-30

V) Certificate of Service 31

VII) Appendix

Ohio Supreme Court Judgment Entry dated | la

8/26/2008 stating “failed to first scek leave

of the Court” though it was filed by attorney

(Kevin Breen), 1 page, as Appendix A

Ohio Supreme Court Judgment Entry dated | 2a

9/12/2008, Denial of reconsideration motion

that was filed by an attorney Kevin Breen,

but court didn’t note as if an attorney filed

and the court did not key in Appellant’s

attorney name, Appendix A2

US District Court, Eastern District of 3a

Louisiana, USA v. Barry Scheu’, Robert

McMullan et al who are clients of Attorney

Matthew Fitzsimmons and defendants of

the instant case, sentencing entry dated

11/12/2008 on 8 counts against Barry

Scheur, Appendix C

Blank Appendix D

US District Court, Eastern District of

Louisiana, USA v. Barry Scheur, Robert

McMillan et al who are clients of Attorney

Matthew Fitzsimmons and defendants of

the instant case, 11/12/2008 Judgment

entry with background information,

| Appendix E, 2 pages

5a, 6a

Ohio Supreme Court case, Ohio Consumers’

Counsel v. Public Utilities Commission,

where the reconsideration motion was voted

by all the judges, unlike in the instant case,

| Appendix F, 3 pages ee

Ja-9a

Court of Common Pleas, Cuyahoga County,

Bikkani v. Lee, 9/30/2005 filing by

Defendant Lee by summarizing Plaintiff's

complaint, which is in sharp contrast with

Mr. Fitzsimmons’s improper description,

Appendix G, 3 pages

10a-

12a

Court of Common Pleas, Cuyahoga County,

Bikkani v. Lee, 10/28/2005 filing by

Petitioner seeking information from

Matthew Fitzsimmons in his Board of

Trustee capacity only, and not related to

attorney Client privilege, Appendix H, 4

pages

Court of Common Pleas, Cuyahoga County,

Bikkani v. Lee, 11/12/2005 filing by

Attorney Denise Roth to withdraw as

counsel to Scheur Defendants upon

Petitioner alerting the conflicts of interest

ill

and Disciplinary Rule violations, unlike

Matthew Fitzsimmons created severe

conflicts of interests, Appendix I, 2 pages

Matthew Fitzsimmons letter to Petitioner

dated 10/10/2005 which is different from

facts, Appendix J, 2 pages

19a-

20a

Court of Common Pleas, Cuyahoga County,

WM Specialty (AmeriQuest) v. Vijaya

Bikkani, Miles Landing et al, 4/23/2007

filing by Matthew Fitzsimmons insisting he

would like to continue through discovery

even upon his clam of an unrelated case,

just to keep collecting money from his self

controlled clients (THCP/NEON) or other

victims such as Petitioner, Appendix K, 2

pages

21la-

22a

Court of Appeals, Eighth Appellate District,

Bikkani v. Lee et al, Release of Lien, filed

4/19/207, only upon entering into an

unrelated WM Specialty v. Vijaya Bikkan,

Miles Landing case to continue harassing

Bikkanis, Appendix L (Exhibit A to

Appendix K), 1 page

Trustee Matthew Fitzsimmons letter dated

5/22/2001, to Mary Jo, THCP Deputy

Rehabilitator, admitting that Mr.

Fitzsimmons selected employees to force

reduction, admitting Scheur Defendants,

and all others in the instant case

Defendants are his chents-|violated and

continue to violate all kinds of ethical and

disciplinary Rules], Appendix M , 2 pages

Letter from Willie Austin, NEON’s CEO

dated 3/22/2005 in response to Petitioner's

| certified mails of 1/7/2004 and 12/27/2004

24a-

25a

26a

regarding the promised to pay but not

received amounts, Appendix N, 1 page

Court of Common Pleas, Cuyahoga County,

Bikkani v. Lee, 9/6/2005 affidavit by board

trustee cum attorney Matthew Fitzsimmons

from Evelyn Armstrong in a deliberate

attempt to claim as if Petitioner was never

an employee of NEON/CNHSI, Appendix O,

1 page

CNHSI (Currently known as NEON)

employment offer dated 9/27/1994 to

Petitioner through which the petitioner

joined in the job and rose to the level of Vice

President level at the time of termination of

employment., Appendix P, 2 pages

The Appeal court Judgment of Bikkani v.

Lee CA 89312, that was originated from

CV05-566249, Appendix Q, 10 pages

The Appeal court Docket of Bikkani v. Lee

CA 88650 that was originated from CV05-

566249, Appendix R, 7 pages

Letter copy of self-serving Attorney Keith

Barton from Bankruptcy court, about his

employment termination and hard disk

erasing of his employer’s, Miles Landing,

| computer etc, Appendix S, 4 pages

Bankruptcy court Opinion/judgment

referring to Attorney Keith Barton/Miles

Landing, Appendix T, 13 pages

Deputy Rehabilitator’s April 24, 2001

proposal for settling the employment

related claims; those unsettled claims were

transferred to NEON as it claimed as

parent of THCP, Appendix U, 3 pages |

Deputy Rehabilitator’s April 24, 2001

69a-

proposal for settling the employment

related claims in conjunction with Appendix

U; those unsettled claims were transferred

to NEON as it claimed as parent of THCP,

|}Appendix V,2 pages

70a ee

Petitioner’s April 26, 2001 communication

to Deputy Rehabilitator pertinent to April

24, 2001 proposed claims settlement, which

were transferred to NEON as it claimed as

parent of THCP and as NEON took away

THCP funds, Appendix W, 5 pages

Vla-

7da

Petitioner’s ousting by trustee Matthew

Fitzsimmons with his discriminator way

designing Separation agreement, Appendix

X, 7 pages ; ae

List created by THCP Finance official, to

Rotan Lee, of over $4 Millions given away

money to NEON by THCP, Appendix Y, 1

page

Following Trustee Matthew Fitzsimmons

ousting the Petitioner, Paula Phelps

provided IT position description to Jimmy

Dee by stating that purposely steering clear

of supervisory responsibilities, Appendix Z,

1 page

84a

Following Trustee Matthew Fitzsimmons

ousting the Petitioner, Paula Phelps

provided IT position description to Donald

Butler by stating that deliberately shield

away from ... cle ar of supervisory

responsibilities, Appendix AA, 1 page

Rotan Lee proposing to his intimate friend

Christina Burke, a business proposal] for her

crew— to clean/sweep THCP cffices,

86a

| Appendix AB, l page +e 4

Retan Lee designating to his intimate friend

Christina Burke, the Petitioner’s position

Vice President of Information Services,

upon ousting Petitioner though trustee

Matthew Fitzsimmons effort, Appendix AC,

2 pages

S7a-

88a

1/7/2000 memo from Martha Muhammad to

Rotan Lee suggesting $976,000 note plus

interest from NEON to be collected,

Appendix AD, a page

1/14/2000 memo from Rotan Lee to Martha

Muhammad indicating he will work towards

obtaining cash infusion to THCP [upon

mismanaging several millions of dollars and

under cash crunch], Appendix AE, 1 page

89a

1/14/2000 memo from Rotan Lee to NEON

[through the influence of trustee Matthew

Fitzsimmons] without the knowledge of

THCP trustees abandoned collecting the

million dollars, even being under cash

crunch to THCP, in contrary to Appendix

AD, AE, & AH tasks; Appendix AF, page 1

9la

5/21/2001 letter to State Government by

Carlile Patchen Attorney concluding NEON

as parent of THCP and as if have subsidiary

relationship, and as if Matthew

Fitzsimmons appeared as counsel of NEON

[without the knowledge of THCP trustees

and to convert THCP assets into NEON],

92a-

97a

Appendix AG, pages 6 _

10/14/1999 memo from Martha Muhammad

to Rotan Lee related to Finance meeting

anc the cash crunch reflecting the

' mismanagement of funds/claims processing,

Appendix AH. pages 2

Vil

4/14/1999 memo from Martha Muhammad

to Rotan Lee related to Scheur Management

overbilling, billing without service,

neglecting the tasks that were undertaken

etc, Appendix AI, pages 2 Saree

Appendix AJ 5/25/2000 communication from

NEON to THCP with threats and by

refusing to pay back million+ dollars and by

citing the existence of Appendix AF that

was takéa from Rotan Lee, Appendix AJ,

ages 3

6/21/2006 time stamped service initiation to

Trustee Matthew Fitzsimmons as the

perfection of service didn't appear following

an attempted service on Trustee Matthew

Fitzsimmons 1n 11/14/2005, a way before

any ANSWER was filed by Defendants,

Appendix AK, page 1

105a

Vil

TABLE OF AUTHORITIES

Content Page

Akron Bar Assn. v. Snyder (1997), 78 Ohio 28

St.3d 57,676 N.E.2d 504

Analytica, Inc. v. NPD Research Inc., 708 25, 26

F.2d 1263 (7th Cir. 1983).

Bernbaum ov. Silverstein (1980) 62 Ohio St 16

2d 445, 406 N.E.2d 532 x

Bikkani v. Lee (8*» Dist. Cv05-566249, 2, 4,

CA88650, CA89312, (OH 2006-2073, OH Ea,

| 2006-2302), US 07-271, Certiorary declined) | 13, 15

| Brant v. Vitreo-Retinal Consultants Inc. 22

(April 3, 2000), Stark App. No.

1999CA00283

Dana Corp. v. Blue Cross & Blue Shield Mut. | 21

of N. Ohio (C.A.6, 1990), 900 F.2d 882, 889

Davton Bar Assn. v. Shaman (1997), 80 Ohio | 28

St.3d 196, 685 N.E.2d 518 at

‘Disciplinary Counsel v. Golden, 97 Ohio St.3q 28

230, 2002-Ohi0-5934, 778 N.E.2d 564 ae

Disciplinary Counsel v. Jones (1993), 66 Ohio! 28

St.Gd 369, 613 N.E.2d 178

Disciplinary Counsel v. Taft, 858 N.E.2d 414, | 27

112 Ohio St.3d 155 (2006).

Disciplinary Counsel v. Wrenn, 99 Ohio St.3d | 27

222, 2003-Ohio-3288, 790 N.E.2d 1195 | _

Emle Industries Inc. v. Patentex Inc., 478 F.2¢ 23

562 (2nd Cir. 1973)

Hahn v. Kotten (1975), 43 Ohio St.2d 237, 244 28

Hafter v. Farkas, 498 F.2d 587, 589 (2d Cir. | 22

1974).

In re. J.M. CAPITAL, LTD. (Bank. NE Dist off 12

Ohio, Case No. 08-20123),

| Kala vu, Aluminum Smelting & Refining Co., | 23, 24 |

Inc. (1998), 81 Ohio St.3d 1 at 5

Lassiter v. Dept. of Social Services, 452 U.S. | 26

18, 24 (1981).

Mentor Lagoons, Inc. v. Rubin (1987), 31 21

Ohio St.3d 256.

Miles Landing Homeowners Association v. 4, 6,

Bikkani et al (8 Dist cv04-519870, 11,12

'CA86356 & 86942, OH 2006-1694)

Miles Landing Homeowners Association v. 11

Bikkani, 2006 -Ohio- 3328 (Ohio App. Dist.8

06/29/2006)

Morgan v. North Coast Cable Co. (1992),63 | 21

Ohio St.3d 156, 159

Northeast Ohio Neighborhood Health 7

Services/Total Health Care Plan v. Prasad

Bikkani, et al Cv07-628928 (court of

Common Pleas, Cuyahoga County, Ohio) :

Overnite Transp. Co. v. Chicago Indus. Tire | 24, 26

Co., 697 F.2d 789 (7th Cir. 1983)

Patrick v. Ressler (Sept. 28, 2001), Franklin | 21

App. No. 0OAP-1194

State ex rel. Leslie v. Ohio Hous. Fin. 24

Agency, 105 Ohio St.3d 261, (2005); ae

The Lawyer's Obligation to be Trustworthy 26

when Dealing with Opposing Parties, 33

S.C.L. Rev. 181 (1981).

United Air Lines, Inc. v. Evans, 431 U.S. 16

553 (1977),

USA v. Cook 1:98 cr-00-200-DCN-1) 6

United States v. Scheur et al (Louisiana, so)

CRO7-169) ve

Westinghouse Elec. Corp. v. Kerr-McGee 25

Corp., 580 F.2d 1311, 1321 (7th Cir. 1978) |

WM Specialty (for Ameriquest) v, Vijaya 5

Bikkani Miles Landing et al(CV07-620252)

— oe

RC 5311.18 Cee 2

RC 2323.51 5, 14, 17

RC 2323.51 (A) | 16, 18

RC 2323.52 z; ae

RC 2323.52 (A) 117

IRC 4941(d) 8, 16, 30

18 U.S. C. §371, 18 USC 1341, 1342, 1343 |9

Canon 5, Canon 4, Canon 9 20, 23, 24

Amendment VI tar.

Amendment VIII 18, 30

Amendment IX | 30

Amendment XIV ; 18, 20, 30

Civ Rule 11 14, 15

Civ Rule 41(B)()) uaa

DR 4-101(A); Psa. | 24

DR 1-102(A)(S) | 27

DR 5-105(D) ee ee 24

Note: For referencing convenience the following notation

was used: |

CAJE: Journal Entry and Opinion No. 89312

Journalized July 7, 2008, attached as A to Ohiv

Supreme court filing, Appendix Q

D1806: Exhibit X means Exhibit of December 18, 2006

filing on OH2006-2073

D0506: Exhibit X means Exhibit of December 5, 2006

filing.

I. Jurisdiction of the case:

The instant NEON/THCP case involved with

Constitution Due process. With the pattern of materially

false acts, Trustee cum attorney Fitzsimmons directly

involvement in operations under projectSlim fast and

terminated Petitioner's employment, Appendix M, Z,

AA. Trustee Fitzsimmons selected petitioner and others

for discharge in a discriminatory way and crippled THCP,

Appendix AD-Ad, and hired Christina Burke in

petitioner’s place, Appendix AC. Even trustee

Fitzsiramons withheld earned unused vacation amount

over $20,000, Appendix N, as if the waiver requirement

is mandatory even to pay unused vacation for a 40+ age

category, etc. Petitioner in the trial court listed over 380

patterns of corrupt activities, listed over 40 predicate acts,

and listed over 35 Disciplinary Rule violations of Trustee

Matthew Fitzsimmons. However, the trial court did not

conduct a hearing for Attorney disqualificati, :

trustee Fitzsimmons continued to misrepresent t he facts

by submitting materially false affidavit, Appendix O,

and by working with severe conflicts. Petitioner thought

of taking help from the Appeal court or to request to

modify the law.

Unfortunately, petitioner faced the

misrepresentation of facts by Trustee cum attorney Mr.

Fitzsimmons in the higher courts to get sanctioned

against the Petitioner and he keep misrepresenting the

facts and using one court against another court. For

example, in Ohio Supreme court Bikkani V. Lee et al (OH

2006-2302, OH2006-2073), Mr. Fitzsimmons falsely and

intentionally claimed as if he never been a party in the

trial court of in the Appeal court but as if Petitioner added

Mr. Fitzsimmons as a party in the Ohio Supreme Court

only and obtained sanctions and got the petitioner

declared as if vexatious litigator. Those sanctions and

getting declared as a vexatious litigant in Ohio Supreme

court, trustee Fitzsimmons used it in the Appeal court to

get declared as Vexatious and as if the trial court abused

the discretion, CAJE-Appendix Q, R. However, the

Appeal court did not mind Mr. Fitzsimmons falsely

claiming as if he never been a party to get sanctions

against petitioner but simply stated as if Mr.

Fitzsimmons is a party or as if petitioner sued the

Defendant's attorney without mentioning the trustee role

[thus listed in the caption in this certiorari] and or his

personal and operational roles. It is to this honorable

court to determine as to what is happening naturally as

Judges didn’t detect the material misrepresentations of

Mr. Fitzsimmons or with some influence, but the research

indicates that Mr. Fitzsimmons’s wife is an Ohio Supreme

Court committee member and as if his relative 1s an

Appeal court Judge.

Petitioner contacted NEON/THCP “employer” by

certified mails dated 1/7/ 2004 and 12/27/2004 for the

promised but failed payment on claims, Appendix U-W,

by CEO Willie Austin on behalf of NEON/THCP.

Ultimately, Willie Austin, CEO responded by mail on

3/22/2005, Appendix N. Thus, enough notice was given

to the employers/trustees and the law suite is not any

surprise. Moreover, When Mr. Austin set up a meeting at

his office following the law suite, he admitted that years

of delay of not paying the agreed amount is in a hope of

statutes expiry, please see 6/26/2006 filing in the trial

court. The respondent has an Officer/Director capacity,

being as Vice President capacity at the time of

employment termination, and Petitioner did not file law

suite under any derivative claim. In September 6, 2005

filing, trustee cum attorney Fitzsimmons submitted an

affidavit to the court claiming as if Mr. Bikkani was never

an employee of NEON, Appendix O, which is contrary to

the fact. On October 10, 2005, Mr. Fitzsimmons issued a

letter stating as if the law suite is a surprise to him and to

his chents, as if he is representing only NEON/THCP,

whether the Petitioner is willing to drop NEON/THCP to

proceed against Scheur Defendants etc, claming as if

Petitioner is not an employee of NEON during 1999. See

Appendix J.

Even if NEON terminated the Petitioner's

employment prior to 1999, as claimed by Mr.

Fitzsimmons letter dated 10/10/2005 stating “You were

not employed by NEON in 1999”, Appendix J, while

claiming not employed by NEON at all, Appendix O,

NEON claimed parent-child relationship per Secretary of

State, and Mr. Fitzsimmons claimed subsidiary

relationship with regulators, Appendix AG. The

unsettled petitioner’ claims, Appendix U-W, became the

responsibility of THCP/NEON.

Per Matthew Fitzsimmons’s admission, all the

defendants in the instant case are his clients, Appendix

M. Mr. Fitzsimmons did not produce any waivers while

representing some clients against others in the instant

case or while representing other clicnts using

THCP/NEON as if actual clients. Mr. Fitzsimmons

converted THCP into NEON in 2001 without the

knowledge of THCP Board of trustees, who are his clients,

and too testified with Ohio Attorney General/Ohio

Department of Insurance representatives in favor of

NEON. without disclosures as to THCP is his client

or without disclosing, as he is a board of trustee of

NEON, Appendix AG. During February 2000, prior to

crippling THCP, NEON/trustee Mr. Fitzsimmons

obtained a million dollars THCP note waiver through

Scheur Group/Rotan Lee, Appendix AF, without the

knowledge of THCP trustees, while pretending as if Mr.

Fitzsimmons representing THCP, which contributed to

crippling of THCP without operating balance. The

Disciplinary Rules and ethical standards looks good on

the paper but in the instant case and in Miles Landing

case it is unconscionable to get petitioner victimized.

Discovery was attempted in the instant trial case

but NEON/THCP Board of trustee cum attorney Matthew

Fitzsimmons blocked the depositions and he filed for

protective order in 2005 itself. By late Z006 when

materially falsified exparte communications of April 2005

were came to knowledge in the Miles Landing v. Vijaya

Bikkani et al, which caused severe harm and similar

patterns and or severe conflicts of interests became

evident in the instant case, Petitioner moved to Appeal

process to request to modify the law. To the credit of

Trustee cum attorney Fitzsimmons aggressive

misrepresentations [and perhaps though influence] he

obtained sanctions against Petitioner both in Appeal court

and in Ohio Supreme Court cases Bikkani v. Lee et al (OH

2006-2302, OH 2006-2073, US S.Ct 07-271 Certiorari

denied).

During the above appeal process, when the Appeal

court denied the appeal during October 2006, the trial

court denied the petitioner’s continuance motion for

discovery and without giving any wait time for

petitioner's deposition, on October 3, 2006 the trial court

dismissed Petitioners Complaint with prejudiced based

upon, pursuant to Ohio Civ. R. 41(B)(1)." The trial court

never addressed the substantive merits of Petitioner’s

core claim of wrongful termination and in that same entry

declared Defendants pending motion for summary

judgment moot.' See, Prasad Bikkani v. Rotan E. Lee,

et al., case no. CV-05-566249, Court of Common Pleas

Cuyahoga County, Ohio.

At least 5 times Trustee Matthew Fitzsimmons

filed for sanctions and for attorney fees against Petitioner

including on 11/29/2005 and on 12/1/2005 (both denied on

5/30/2006), on 6/9/2006 and 10/30/2006 (both denied on

12/18/2006), and on 1/8/2007 that was denied on

1/10/2007. These requests and rerequests were for

sanctions, attorney fees, court costs and expenses against

Petitioner alleging that his actions were "frivolous" within

the meaning of the frivolous conduct statute, O.R.C. §

2323.51. NEON and THCP appealed to the Eighth

Appellate District on January 17, 2007. The Petitioner

did nct receive NEON/THCP Appellate Brief and on some

day end missed filing the reply BRIEF in a timely

manner. When Plaintiff petitioned for leave of Appeal

Court, the court denied and subsequently denied hearing

from Petitioner in November 2007. Since request and

rerequests were made by NEON/THCP, the January 17,

2007 appeal is out of date as the initial sanction requests

were denied on 3/30/2006 itself. Moreover, the January

17, 2007 filing date is past 30 days from the date of

dismissing the case. On December 13, 2007, Attorney

Kevin Breen entered an appearance in the appeal on

behalf of petitioner and moved for leave to file an

opposition brief instanter. On January 7, 2008 the Court

of Appeals denied that motion. On July 7, 2008 the Court

of Appeals reversed and remanded the case to the trial

court.

During early 2007, upon getting paid for the Appeal

Court sanctions by Petitioner to the Defendants/Matthew

Fitzsimmons, they maintained the lien and able tou make

them as parties to a lawsuit surprisingly initiated by WM

Specialty Group (for AmeriQuest) v. Vijaya Bikkani, Miles

Landing et al (CV07-620252 8t» Dist). Prasad Bikkani for

Dower rights only, even prior to paying the NEON/THCP

the Lien, it was not at all on that property yet NEON and

THICP became parties. While Trustee cum Attorney

Fitzsimmons Answering the WM Specialty case, he

submitted the satisfied lien yet he stated to continue

through the discovery and asked court to award his

expenses, Appendix K, L. Mr. Fitzsimmons as a trustee

controller of THCP and NEON and he acts as alter ego of

corporations for his pecuniary benefit and it may be one of

the unique cases where an attorney hat was that well

misused. Mr. Fitzsimmons stated in Bikkani v. Lee et al

(US Supreme Court 07-271) as if the Miles Landing cases

are unrelated to him yet he like to harass Petitioner’s wife

too by sitting through unrelated cases, Appendix K, L.

During the same time, to further harass and to

intimidate, using Miles Landing against the unit where

the Miles Landing v. Vaya Bikkani et al (Cv04-519870,

8'h District ct) another case was initiated in Matthew

Fitzsimmons’s wife’s Rocky River Municipal Court

against Bikkanis. To combine AmeriQuest and Miles

Landing cases and to consolidate the parties, Petitioner

moved the cases to US Federal court.

In a further surprising an unknown attorney to

Bikkanis, Attorney Gary Cook without the knowledge or

consent of Bikkanis got dismissed with prejudice the

Federal Court case. Upon inquiry learned, Gary Cook

had a criminal record USA v. Cook 1:98 cr —00-200-DCN-1

and as if he had a business relationship with Attorney

Matthew Fitzsimmons. Upon the Rocky River court case

got reverted back and Judge Donna Fitzsimmons (wife of

Matthew Fitzsimmons) recused herself from the case

stating her husband representing/ associated with the

Plaintiff of that case [Miles Landing] and by citing the

conflicts of interest. During the same time, Trustee cum

attorney Fitzsimmons initiated a new case in the

Cuyahoga common Pleas court against Petitioner and

against his wife Viyaya Bikkani seeking to label them as

"vexatious litigators” under O.R.C. § 2323.52. Trustee

cum attorney is further harassing the petitioner and his

family, to keep collecting money from Mr. Fitzsimmons’s

controlled chents (THCP/NEQON) and or from the victims,

such as Bikkanis. Attorney Kevin Breen was engaged by

Bikkanis to defend that separate lawsuit Northeast

Ohio Neighborhood Heath Services. Inc., et al. v.

Prasad Bikkani, et al case no. CV 07-628928 (Court of

Comuinon Pleas, Cuyahoga County, Ohio).

According to Tiffany McDaniel, Mr. Bikkani had by

far and away the most superior knowledge of the

computer system at NEON and/or THCP (McDaniel Tr. at

32). This opinion was shared by Donald Butler, former

Chief Operating Officer of THCP (Butler Tr. at 65-66; 75).

Matthew T. Fitzsimmons who is serving and or bringing

lawsuits using THCP/NEON names has been serving on

the Board of Trustees since 1996 or 1997. (Austin Tr. at

17). His firm, Nicola, Gudbranson & Cooper are the

“consulting lawyers" for NEON and Total Health Care.

(Austin Tr. at 16). Trustee cum Attorney Fitzsimmons

specifically advised THCP on how to implement a

reduction in force referred to as "Project Slimfast".

Attorney Fitzsimmons' participation, by his own words,

included identifying which persons would be terminated

from the organization, Appendix M.

‘Butler Tr. at 85; Exhibit 13). (Boldface added).

Plaintiff Prasad Bikkani was terminated from his

employment during "Project Slimfast. Mr. Butler

had a great deal of respect for Prasad (Butler, Tr. at 65-

66). When Mr. Bikkani was terminated from his

employment he was replaced by a younger African-

American woman named Christina Burke, Appendix

AC. By all accounts, Ms. Burke had no computer skills

compared to Prasad Bikkani. (McDaniel Tr. at 14-15, 64-

65). Rumors persisted at NEON and THCP that Christina

Burke had a romantic relationship with Rotan Lee,

NEON's Chief Executive Officer at the time. (McDaniel

Tr. at 69). Approximately 85% of the employees at THCP

and NEON were African American. (Willie Austin Tr. at

59) (Donald Butler Tr. at 96-97): (Evelyn Armstrong Tr. at

63-65). Rotan Lee believed that these companies were for

the benefits of blacks (Tiffany McDaniel Tr. at 110). Mr.

Lee and others often talked about how he didn't like

Prasad Bikkani and that he "smelled". (McDaniel Tr. at

40, 58).

Mr. Austin testified that he believes that Mr.

Bikkani's filing of a wrongful termination action was

frivolous even though he does not know why Mr. Bikkani

was fired. (Austin Tr. At 77-78). Moreover, Mr. Austin

testified that the law suite brought against Mr. Bikkani

and his wife Vijaya Bikkani by Mr. Matthew Fitzsimmons

using NEON/THCP as plaintiffs was without the

knowledge of the board. It confirms that board of trustee

cum attorney Matthew Fitzsimmons acting as alter ego of

corporations, violating IRC 4941(D) with his self dealings

ahead and further victimizing the petitioner.

II. Statement of the case with Introductory

Statement about the methods used by

trustee cum attorney Matthew Fitzsimmons

along with forbidden IRC4941 (d) self-

dealings

Trustee cum attorney Fitzsimmons submitted

materially false affidavit :n September 2005 to the trial

court and continue to represent with his self dealings,

with protective order in violation of attorney-fraud

exception, getting stricken the summons tendered by

Sheriff to him, D1806: Exhibit C, obstructing depositions

by other board members, acting with IRC4941(d)

forbidden self-dealings, acting on behalf of all Board

members/trustees, avoiding disclosures, representing

against the clients, violating 35 Disciplinary Rules, over

two dozen parties of conflicts of interest, constitutional

violations.

Punishing the innocent victim by classifying as

vexatious and or with expenses and too not allowing an

evidentiary hearing or due process and too against the

evidence present thus violated many constitutional rights

including the Sixth Amendment, with unusual

punishment to victims who stand against unlawful acts

by sacrificing many things as some attorneys

intentionally involved for their purpose: Mr. Fitzsimmons

successfully converted THCP into NEON fold, even by

misrepresenting to Ohio Attorney General’s office, Ohio

Department of Insurance etc by claiming as if NEON is a

parent of THCP, when in fact rivalries per their own

communications, D1806: Exhibit H-Exhibit O,

Appendix AJ and too conversion without the knowledge

of THCP Board of Trustees and with materially false

information’s. Mr. Fitzsimmons’ SMG who are parties in

the instant case are facing criminal charges on 14 counts

and got convicted on many counts in Louisiana, United

States v. Scheur et al (Louisiana, CRO7-169), which

includes wire fraud, mail fraud, conspiracy, USC §371,

USC §1341, USC §1342, and USC §1343.

Some of the Matthew Fitzsimmons involvement

issues namely are with the supporting hundreds of

paragraphs, D1806 filings:

As the evidence is in front of court, Matthew Fitzsimmons

in collaboration with other personally selected and

ousted Petitioner unlawfully, Appendix M, he acted in

operational duties and not as an attorney for a company,

D0506: Exhibit R. Matthew Fitzsimmons is a trustee of

a corporation, NEON, D0506: Exhibit A Para I (3) of

John Campbell’s July 21, 1999 letter is further evidence

which states in part “that an “alliance document” was to

result from discussions between Mr. Lee and our

Trustee, Mr. Fitzsimmons” [emphasis added] and the

NEON board/officers expected him to be interacted with

THCP as a trustee of NEON and without self-dealings

and there are no disclosures from him to NEON’s board as

if he had a self business with THCP to oust Petitioner

from THCP payroll and or from NEON payroll, but he did

without corporate formalities either. Mr. Fitzsimmons

submitted a materially false affidavit in September 2005,

D1806: Exhibit D in contrary to D1806: Exhibit FE, and

submitted to court and caused perjury, in an effort to

dismiss the case then stating Petitioner was never an

employee of NEON/formerly known as CNHSI, because he

had pecuniary benefit in ousting Petitioner, D1806:

Exhibit A, Exhibit E9-E10, and decided to discredit to

cause perjury in the court; when in fact hired by NEON,

formerly known as CNHSI, D1806: Exhibit E1-E6.

III. Questions Presented & ARGUMENT:

QUESTIONS PRESENTED:

Whether Ohio Vexatious and Frivolous charges are

appropriate when a materially falsifying attorney controls

the courts one court against the another court (trial court,

appeal court, Ohio Supreme Court) to use opinions/

decisions contrary to the facts with half-truth to no truth

and whether Due Process and constitutional rights can be

protected with self dealing attorneys.

Argument:

A) Due process and constitutional rights during the

appeal process as self dealings attorney involved

with serious misrepresentation of facts

The Due process, fair trail, and constitutional

rights are further violated when petitioner sought justice

in good faith from Appeal court in late 2006. The appeal

court did not take up the petitioner’s appeal in late

September 2006. Then trustee Fitzsimmons made trial

court to dismiss the case for seeking appeal and the trial

court on or around 10/3/2006 denied the pending

petitioner’s motion for continuance and simultaneously

dismissed the case with the stated reason as “lack of

prosecution.” The dismissal order stated dismissal

against all the parties and all the claims, meaning

dismissal against defaulted parties too. Then using the

trial court dismissal of the case, trustee cum attorney

Fitzsimmons filed for sanctions against petitioner in the

appeal court in the same case where the appeal court

denied the case to look into it on the constitutional

grounds or modify the law that brought by petitioner but

accepted Mr. Fitzsimmons’s motion for sanctions by

claiming as if the appeal is frivolous. When the petitioner

came to Ohio Supreme court, Bikkani v. Lee (OH 2073)

trustee cum attorney Fitzsimmons made his name

removed from the party list dismissing/denying the

ceritory for original interlocutory appeal where the

opponent counsel violated about 34 Disciplinary Rules

and had over two dozens of conflicts of interests/parties

yet harshly punished victim through monetary sanctions

and declaration as vexatious litigant.

Trustee cum attorney Fitzsimmons’s 1/11/2007

filing of OH2006-2302 Page 12 states in part:

“'..Petitioner filed three appeals with the Eighth

District -- all of which were dismissed for lack of

final appealable orders. See, Miles Lunding

Homeowners Ass'n v. Bikkani (8th Dist. June 29,

2006), 2006 WL 1781226, 2006-Ohi03328 (CA-05-

363356 and CA-05-86942), and CA-05-86747 which

is not reported...”

Similarly, in 1/11/2007 filing of OH2006-2703, Mr.

Fitzsimmons filed starting last para of Page 7:

“...Petitioner also repeatedly filed frivolous appeals

with the Eighth District and Supreme Court in that

case. During a four-month period in that case,

Petitioner filed three appeals with the Eighth

District -- all of which were dismissed for lack of

final appealable orders. See, Miles Landing

Homeowners Ass'n v. Bikkani (8th Dist. June 29,

2006), 2006 WL 1781226, 2006-Ohi03328 (CA-05-

863356 and CA-05-86942), and CA-05-86747 which

is not reported...”

Trustee cum attorney Fitzsimmons knew that he

materially falsified the information as habitual and as

listed other scenarios under hundreds of counts, by

stating that

“all of which were dismissed for lack of final

appealable orders. See, Miles Landing Homeowners

Ass'n v. Bikkani (8th Dist. June 29, 2006), 2006 WL

1781226, 2006-Ohi03328 (CA-05-863356 and CA-

05-86942)...”

Infact the above quoted case was appealable and

even oral hearings were conducted by the appeal court,

though they gave priority to Ohio RC 5311.18 over federal

supremacy laws that involved bankrupt chapter

Tfiquidated/defunct/ DEAD MLHOA/BVHA/BVCUOA

corporation(s) and Ohio supreme court declined

jurisdiction stating lack of interest/priority. Miles

Landing attorney monopolized through self

dealings like Trustee Matthew Fitzsimmons, erased

employer’s hard drive and concealed about $600,000

payable amount by JM Capital, conflicts of interest

client against Miles Landing, Jn re. J.M. CAPITAL,

LTD. (Bank. NE Dist of Ohio, Case No. 08-20123),

Appendix S, T, which should serves as a further

warning to the instant representation by Matthew

Fitzsimmons with severe conflicts of interests.

Moreover, trustee cum attorney Fitzsimmons

knowing that Ohio Supreme Court already made

‘decision by 12/27/2006, in his 1/11/2007 filing of OH2006-

2073 p8 stated as if the “...Supreme Court has not yet

accepted or dismissed...”, to make it appear as if

Petitioner's MLHOA Supreme court appeals are pending:

“',.On September 11, 2006, Petitioner filed a Notice

of Appeal with the Supreme Court with regard to

the Eighth District's Orders in Case Nos. CA-05-

863356 and CA-05-86942. The Supreme Court has

not vet accepted or dismissed that appeal. The

similarities between Petitioner's conduct in Miles

Landing and this case are remarkable: defamatory

and unsubstantiated accusations, outlandish

claims, motions to disqualify and to disbar opposing

counsel, and improper appeals of orders that are

patently not final and appealable...”

Mr. Fitzsimmons 1s known for altering the facts

basec upon the convenience. Like it was stated in the

past, it is not an issue whether it is important to have Mr.

Fitzsimmons as a party inthe Supreme Court docket but

the facts are important. In Mr. Fitzsimmons filing in

12/6/2006 of OH2006-2073, to remove his name he

claimed as if

“'..Matthew T. Fitzsimmons is and has been since

pro se Petitioner-Petitioner Prasad Bikkani

initiated this case at the trial court, counsel of

record for NorthEast Ohio Neighborhood Health

Services, Inc. ("NEON") and Total Health Care

Plan, Inc.”

The above filing is false and part of appeal is to reinstate

him as 4 party, meaning he was a party before getting

stricken. Moreover, Mr. Fitzsimmons couldn't cite any

reference where an Petitioner can not name the summons

served party (whether later stricken or not) during the

appeal process similar to the instant case or any case for

that matter, please see page 1 of 12/6/2006 filing of

OH2006-2073 yet influenced the court and unfortunately

made Petitioner declared as vexatious and it should be

reversed.

The appeal court stated as if Matthew

Fitzsimmons was a party to the case but did not

mind Mr. Fitzsimmons misstating the record in

Ohio Supreme court to get sanctions against

Petitioner by claiming as if he never a party. With

those Ohio Supreme court sanctions he fed the Appeal

court and got obtained additional sanctions.

Court of Appeals commits error when it concludes

that a pro se litigant aged in "frivolous conduct"

and determines that the trial court abused its

discretion in denying, without a hearing, an

untimely motion for sanctions and attorney fees.

Without question, the Court of Appeals has already

concluded that Mr. Bikkani has engaged in frivolous

conduct notwithstanding that the hearing necessary for

this determination has not occurred. Reciting selected

filings made by Mr. Bikkani in the wrongful termination

case, the Court states as follows: "Here, the trial court

never held a hearing on NEON's and THCP's requests for

attorney fees and costs under R.C. 2323.51 and Civ. R. 11,

despite the overwhelming evidence of frivolous conduct

throughout the litigation. The record clearly evidences

frivolous conduct as well as an arguable basis to impose

sanctions under Civ. R. 11. (App. A at 11-12). The court

concludes by ordering that the trial court conduct an

evidentiary hearing to reconsider an award of attorney

fees. The Court states that it expresses no opinion as to

whether the attorney fees sought are necessary or

reasonable, a matter left to the sound discretion of the

court. Id at 14. Even this conclusion, however, is undercut

by the Court's earlier statement that, ".., Bikkani's

conduct not only delayed the proceedings but it forced

NEON and THCP to incur additional expenses by

having to respond to such misconduct". CAJE at 13..

Boiled to its essence, the Court of Appeals has already

concluded without a hearing that: Mr. Bikkani had

engaged in vexatious conduct. Thus the “evidentiary

hearing" which the court now orders is really nothing of

the sort but rather a tabulation of Defendants reasonable

expenses and attorney fees as an appropriate sanction.

For the rea: ons, which follow, Appellant respectfully

submits that the trial court, in fact, soundly and

reasonably exercised its discretion in denying Appellees

motions for sanctions and that there was no abuse of

discretion, notwithstanding the appellate court's contrary

determination, CAJE:at 10-11. Further, Ohio Supreme

Court has apparently never concluded, as the Court of

Appeals did, that O.R.C. § 2323.51 applies an objective

standard to determining frivolous conduct as oppose to a

subjective one used under Civ. R. 11. CAJE: at 7-8. No

authority from Ohio Supreme Court is cited.

If the Court of Appeals is correct, then it should be

unlawful for any Pro Se or attorney to proceed

notwithstanding Constitutional rights to do so when an

opposing attorney manipvlates the facts and violates all

kind of Disciplinary rules in an unconscionable way. The

Appeal court judgment entry contradicts with the record,

some samples were attached in the Appendix, those

exhibits were discussed in the first section, and many

more examples can be cited from the record.

Ohio vexatious statute may not be constitutional to

declare petitioner as vexatious on appeal while help was

sought on Due process, to avoid severe conflicts of

interests. The decisions associated with the instant case

conflicts with decisions of Federal courts and many state

courts of last resort as they do not allow trustee cum

attorney who caused the underlying case to be continued

to represent in the court to further undermine the

judiciary system especially when involved in causing the

underlying case. In the instant case trustee cum

attorney Matthew Fitzsimmons represented with over 35

Disciplinary Rule violations, with dozens of conflicts of

interests/parties/issues, many patterns of corrupt activity

out of which about 380 of them are listed, Bikkani v. Lee

(8 Dist. Cv05-566249, CA88650, CA89312, OH 2006-

2073, OH 2006-2302) in an attempt to disqualify him

though not successful. Mr. Fitzsimmons,

principal/NEON board member, being involved in

wrongful acts, should not have represented NEON/THCP,

and or other NEON board members with conflicts of

interest, materially aliered facts, knowingly and willfully

violated to erode confidence in judiciary system. he Ohio

Supreme Court held a quarter century ago that overruling

of motion to disqualify counsel is not order made in

special proceeding thus is not final appealable. Bernbaum

v. Stlverstetn (1980) 62 Ohio St 2d 445, 406 N.E.2d 532

and the decision were well supported based upon

understanding that bar association deals with any

impropriety of attorney and not knowing to this extent

like in the instant case or like in MLHOA case attorneys

involve so deeply to forbidden self deals serving and not

knowing that Ohio Disciplinary counsel does not involve

while case is in progress. Due to these new constraints, to

seek justice, Petitioner with good faith came to Appeal

court and Supreme Court and too seek any modification of

law if the existing law does not support. The issue

presented is of broad concern and the questions raised in

the petition are of consequence to the Federal government

too.

The current experience brings a questions that

whether trustee cum attorney Matthew Fitzsimmons

extended his illegal acts and acts on behalf of others in

concert into the court room, unlike in United Air Lines,

Inc. v. Evans, 431 U.S. 553 (1977), and Mr.

Fitzsimmons’s continuation of representation under

attorney hat through IRC 4941(d) forbidden self-dealings

and manipulation of facts with false affidavit and other

means gave "present effect to its past illegal act and

thereby perpetuated the consequences of forbidden

unlawful practices”. The Petitioner does not meet the

RC2323.51 (A) frivolous conduct.

Victim/petitioner’s Due process rights were

violated, where expected the protection and assistance, by

punishing rather than rewarding for the sacrifice and for

the good faith effort, both by Appeal court and further

punishment by Ohio Supreme court just because an

attorney who is a member of US Supreme Court had high

influence over the Ohio court system as he was able to

conceal the facts in furtherance of his pecuniary benefit

and can go to any extent by engaging in a conduct

unbecoming a member of the Bar of the court.

In order to be declared the petitioner as vexatious litigant

RC 2323.52 (A) was not satisfied and also conduct was not

found as frivolous per RC 2323.51 other than belief by

court based upon half-truth to no truth statements by

trustee cum attorney Fitzsimmons to cover-up his tracks.

The Appeal court failed to conduct a hearing to declare

frivolous and award sanctions as required by RC 2323.51,

nor conducted a hearing by Supreme court before deciding

in favor of RC 2323.52 and or other procedural

requirement to determine rather than believing appeal’s

court judgment that is already in violation of RC 2323.51

without following the needed requirements.

Trustee cum attorney Fitzsimmons’s conduct is

frivolous and in violation of RC 2323.51(A)(2)(a) to

obviously serves merely to harass or maliciously injure

petitioner, to cover-up his acts, it is not warranted under

existing law and cannot be supported by a good faith

argument for an extension, modification, or reversal of

existing law. Moreover, petitioner’s conduct is not in

question per RC 2323.52 and rather Trustee cum attorney

Matthew Fitzsimmon’'s conduct is Vexatious and

petitioner's conduct is to serve justice by getting

protection from trustee cum attorney Matthew

Fitzsimmons’s harassment and from his malicious acts to

injure to the petitioner as he violated RC 2323.52(A)(2)(a).

Trustee cum attorney Matthew Fitzsimmons’s conduct is

not warranted under the existing law and can not be

supported by a good faith argument for an extension,

modification, or reversal of existing law, thus he violated

RC 2323.52(A)(2)(b) and not the other way around against

such conduct of petitioner. Trustee cum attorney

Matthew Fitzsimmons’s conduct is with obstruction of

justice and solely for the delay thus he violated RC

2323.52(A)(2)(c). Trustee cum attorney Matthew

Fitzsimmons’s conduct meets RC 2323.52(A)(3)

“Vexatious litigator” definition as he has habitually,

persistently, and without reasonable grounds engages in

vexatious conduct and he represented himself as Pro Se in

the instant case when he was named as a party and

served the Summons with Sheriff (though he refused to

accept the tendered service and filed various motions to

remove his name).

This case deserves appropriate treatment as one of

the great importance of public interest and involved with

substantial constitutional issue, Due process violations,

prejudice, and constitutional amendment violations. With

a good faith Petitioner brought to the court’s attention for

justice, Attorney Fitzsimmons should not be rewarded for

wrongdoing with bill/sanctions against Petitioner, and

judgments should be in Petitioner's favor. Petitioner had

meritorious claim, with half-truths and in violation of

dozens of Disciplinary rules and pertinent laws Attorney

who is a Board of Trustee caused tortious interference,

ousted Petitioner even whom represented in the past,

caused victim in the process, and cuntinue to cause

damages by repeatedly filing with half-truths. It leads to

violation of amendment VIII with excessive

fine/punishment imposition for honesty and for

attempting to get justice served. It is violation of

amendment IX to punish in violation of amendment VIII

when sought justice and for punishing the innocent party.

It is in violation of amendment XIV without due process

for fair Trial while trustee cum attorney Mr. Fitzsimmons

representing himself to cover-up facts with materially

false affidavit, dozens of conflicts of interests as if he is

representing NEON and THCP by converting rival THCP

into NEON and representing against petitioner to whom

he represented in the past and other over a dozens parties

and too to be responsible for the underlying case through

intentional and tortious interference with petitioners

employments activities with NEON/THCP.

IV. Conclusion:

Based upon the above pleading and with the

support of past filings, some of the issues rise

through Attorney Fitzsimmon’s cum Board of

trustee raises issues like:

A) Whether a board of trustee, as a General counsel

in combination with causing for the underlying case

through violation of laws and in further violations while

pretending to be an attorney of purported corporations

(3) can materially participate for pecuniary benefit against

corporation/client, (11) can materially participate in

unlawful termination of employees in concert with third

parties, (iii) can materially participate in submission of

wrong information/financial statements to corporation

through third parties, iv) can participate in conversion of

corporation against board of trustees, v) can materially

participate in the conversion of funds; and still can

represent in the subsequent lawsuit against a

victim/Petitioner not only with conflicts of interests but

also with further pecuniary benefit and to suppress/alter

facts, vi) Whether an attorney in conjunction with the

above violations/characteristics can submit to the Trial

court: a) materially falsified affidavit, b) half truth

pleadings, c) evade deposition, d) obtain protective order,

for further pecuniary benefit and to protect all his past

clients who happened to be over a dozen defendants in the

instant case and attorney being a party to the lawsuit can

refuse the summons and can represent in the case.

B) Whether an attorney in conjunction with the

above viclations/characteristics can participate in

hundreds of corrupt activities; when sought help from

Appellate court then can present half truth to the court to

obtain sanctions against victim/Petitioner then continue

to represent in Supreme court with half truths as if the

Petitioner is vexatious

C) Whether the parties can be represented by an

attorney of the above violations/characteristics along with

an attorney/group of another attorney’s extension

D) Whether Appeal court lacks jurisdiction/

appealable matter to review even when the same court

considered Mr. Fitzsimmons/NEON/THCP’s motion to

impose sanctions against Petitioner/victim when sought

justice within the existing law, or to modify the existing

law to protect community.

E) Whether a trustee cum attorney of a non-profit

corporation can avoid disqualification from a case which

was actually originated through his underlying Federal

violation against victim along with others in concert, and

by using the judiciary system and

a) Can he advance his personal interests in violation of

forbidden IRC4941 (d) self-dealings, b) Can he submit

materially false affidavit to obstruct justice and to offend

the victim and the judiciary system, c) Can he violate

Fourteenth Amendment and Sixth Amendment besides

Canon 5, Canon 4, Canon 8, and about 35 DR violations

with dozens of conflicting of intcrests/parties, d) Can he

benefit for his advantage using another case where

petitioner 1s a victim along hundreds of others, which

involved with violation of crimes, constitutional violations

including the violation of Federal Supremacy laws even

with Bankrupt/DEAD/ Liquidated Corporation, e) Can he

turn victim into further victimization by using above

violations plus for sanctions, to declare as vexatious

litigant, and to cause to dismiss the case when infact the

results should be other way around.

Petitioner filed an Action on his own behalf, on

behalf of emplover THCP/NEON. The complaint includes

breach of fiduciary duty, conversion, receipt of an

unlawful distribution of assets, action false/misleading

financial statements, action on conversion, reinstatement,

retaliatory/unlawful termination, action on material

falsification, etc. Petitioner filed disqualification of

Attorney Matthew Fitzsimmons arguing first that Mr.

Fitzsimmons had a conflict of interest by way of Mr.

Fitzsimmons’s role as corporate counsel to THCP/NEON,

Board member of NEON/THCP (Claimed NEON as a

member of THCP), represented Petitioner and other

employees, represented other defendants, as a party to

the lawsuit and served summons, involved in crimes and

too involved in unlawful discharge and other allegations

of the complaint and evaded deposition and still a witness

in the litigation. As the record indicates, a past attorney-

client relationship existed between Petitioner and

Attorney Fitzsimmons; the subject matter of those

relationships is substantially related; and Mr.

Fitzsimmons acquired confidential information from

Petitioner and supports Attorney Fitzsimmons

disqualification, Dana Corp. v. Blue Cross & Blue Shield

Mut. of N. Ohio (C.A.6, 1990), 900 F.2d 882, 889; Mentor

Lagoons, Inc. v. Rubin (1987), 31 Ohio St.3d 256.

Mr. Fitzsimmons eluded as if Petitioner brought the

derivative lawsuit for hundreds of employees and there by

on behalf of corporation asking the corporate counsel to be

disquaiified. Though generally, a party on the outside of

an attorney-client relationship “lacks standing to

complain of a conflict of interest in that relationship."

Morgan v. North Coast Cable Co. (1992), 63 Ohio St.3d

156, 159, it is true if an attorney never represented a

chent or stranger to the attorney-client relationship to

complain any of the conflict of interest. It is not the case

with Petitioner and Mr. Fitzsimmons represented

Petitioner. Attorney Fitzsimmons’s representation of the

corporation is substantially/directly related. In such

circumstances, though, whether Attorney ultimately is a

material witness 1n the litigation does not matter, Patrick

u. Ressler (Sept. 28, 2001), Franklin App. No. OOAP-1194,

the factual context of his prior representation of

THCP/NEON and the factual context of the present case

create a relationship substantial enough to justify

disqualification. Furthermore, Mr. Fitzsimmons is a

board member, represented all the defendants, a party to

the current lawsuit, altering evidence, materially

participated in illegal activities including in retaliation

and unlawful termination of Petitioner for his pecuniary

benefit.

Moreover, Petitioner has brought the action on

behalf of the corporation after giving series of

notices/communications to nonprofit corporation/board of

directors. As the corporation's counsel, it is presumed that

Attorney Fitzsimmons received confidential information,

Brant v. Vitreo-Retinal Consultants Inc. (April 3, 2000),

Stark App. No. 1999CA00283 and the subsequent

representation by Mr. Fitzsimmons is not vicarious but

primary and unlike a need to presume the received

confidences as rebuttable, Brant v. Vitreo-Retinal

Consultants, Inc. (Apr. 3, 2000), Stark App. No.

1999CA00283, discretionary appeal denied, 90 Ohio St.3d

1402. Under the given circumstances, Appeal court

current ruling and Ohio Supreme court denial to take up

the case are unfortunate to rule in favor of Mr.

Fitzsimmons /NEON/THCP. This great injustice is the

further consequence of pecuniary benefit involved and the

parties who involved in the underlying case representing

the case with half truths and this case is unique for the

final appealability or to modify the law accordingly and

the victim/Petitioner should not be penalized for the good

faith efforts and too in view of great loss already suffered

through.

As stated earlier Mr. Fitzsimmons, and other

attorneys/firms violated Fourteenth Amendment and

Sixth Amendment besides Canon 5, Canon 4, Canon

9, and other DR violations. NEON’s Board

member/Trustee Mr. Fitzsimmons is a fiduciary or

trustee to Petitioner, Hafter v. Farkas, 498 F.2d 587, 589

(2d Cir. 1974). Inthe instant case the violations are

much beyond any case ever come to in front of court and

involved many conflicts and constitutional violations and

caused severe injustice to Petitioner and to the judiciary

system itself. Matthew Fitzsimmons himself has a

competing attorney-client privilege with THCP, NEON,

THCP Board, NEON Board, Petitioner, other defendants

of the instant case, and even breaching the fiduciary

relationship he had with Petitioner, to continue to cover-

up viclations. Attorney Fitzsimmons/Board member

severely violated Disciplinary Rules and Fiduciary duties

for over a dozen defendants in the instant case and to

Petitioner as all are his clients/ex-clients/ or express

attorney-client relation, thus strict standards of Canon 5

is applicable. Mr. Fitzsimmons has been privy to THCP,

NEON, Dr. Marshall, Mr. Kimber, Mr. Lee, Mr. Scheur,

Ms. Asron, SMG, Mr. McMillan, Ms. Phelps, Mr. Pinkney,

Mr. Devis, and Petitioner’s; confidences, thus violation

under Canon 4 and Mr. Fitzsimmons should have been

disqualified from representing the defendants in the

instant case. In the course of the former representation

Mr. Fitzsimmons acquired information related to the

subject matter of his subsequent representation, and Mr.

Fitzsimmons should be disqualified under Canon 9 of the

Code of Professional Responsibility, Emle Industries Inc.

v. Patentex Inc., 478 F.2d 562 (2nd Cir. 1973), Kala v.

Aluminum Smelting & Refining Co., Inc. (1998), 81 Ohio

St.3d 1 at 5. As a matter of fact, attorney Mr.

Fitzsiminons, Attorney Dennis Roth, Attorney Brian

Green violated Canon 4, Canon 5 and Canon 9.

Attornev Brian Green is an attorney of disqualified

Attorney Dennis Roth. It is clear that under Canon 9 as

well as Canons 4 and 5, Matthew Fitzsimmons should be

disqualified. Similarly the Canon 4 of the Ohio Code of

Professional Responsibility imposes a duty on Matthew

Fitzsimmons, and on Dennis Roth to protect THCP’s,

Petitioner's, THCP Board of Trustees, NEON’s, and SMG

defendants as all of them have privity with them

confidences and secrets including to related to Petitioner's

wrongful termination claim, State ex rel. Leslie v. Ohio

Hous. Fin. Agency, 105 Ohio St.3d 261, (2005); DR 4-

101(A); Kala v. Aluminum Smelting & Refining Co., Inc.

(1998), 81 Ohio St.3d 1. Using the direction in

Disciplinary Rule 5-105(D) and by Canon 9's warning

that "A Lawyer Should Avoid Even the Appearance of

Professional Impropriety" Mr. Fitzsimmons getting

violated in all aspects.

Mr. Fitzsimmons improperly defending/defended

against the disqualification motion, with serious

disregard for the orderly process of justice, without a

colorable basis in law, and causing a harsh blow to the

process as it "will have a profound chilling effect upon

victims/litigants and would interfere with the

presentation of meritorious legal questions. In an

idealized world, victim would have bowed out, but reality

dictates that great injustice the proper course was to

appeal or to get reviewed/modified the law as this kind of

case never occurred before. The way Mr. Fitzsimmons

involved continued to conceal facts is nothing less than an

insult to the doctrine of stare decisis and a slap in the face

of the adversary process, Overnite Transp. Co. v. Chicago

Indus. Tire Co., 697 F.2d 789 (7th Cir. 1983).

Unfortunately, Mr. Fitzsimmons contaminating the

law of attorney disqualification, which is a fundamental

importance to the legal community and to our society.

Mr. Fitzsimmons using confidential information that he

has obtained from a client against that client on behalf of

another one and representing an adversary of his former

clients of the subject matter of the two representations is

not just "substantially related," but same. Mr. Matthew

Fitzsimmons not only had access to but also received

confidential information of Petitioner, THCP, board of

directors, officers, to NEON, board of directors, officers,

and above a dozen defendants in the instant case. In the

instant case Mr. Fitzsimmons and his firm popped up as

counsel to an adversary of Petitioner, and other

defendants following illegal conversion of THCP under

NEON and representing against THCP board of directors

officially. Thus Mr. Fitzsimmons’s interference under the

name of an attorney to two defendants in the instant case

is not just the representations that are substantially

related to past services/obtained confidences from others

but totally and directly related. Consistently with this

distinction, Westinghouse Elec. Corp. v. Kerr-McGee Corp.,

580 F.2d 1311, 1321 (7th Cir. 1978) -- like this is a case

where the same law firm represented adversaries in

substantially related matters -- states that 1t would have

made no difference whether "actual confidences were

disclosed" even if the law firm had set up a "Chinese wall"

between the teams of lawyers working on substantially

related matters, though the two teams were in different

offices of the firm, located hundreds of miles apart. Mr.

Fitzsimmons couldn't have created a Chinese wall in his

mind between his multiple violations with various clients.

Since it is a direct relationship, substantial relationship

inquirv is not needed.

The fact that Mr. Fitzsimmons made stubbornness

in resisting disqualification is improper, Analytica, Inc. v.

NPD Research Inc., 708 F.2d 1263 (7th Cir. 1983).

Somehow Appeal court and this court got influenced

by Mr. Fitzsimmons and awarded sanctions against

Petitioner even without taking up the case to which

Petitioner sought justice on basic principle of law, fairness

to all litigants believing that fairness requires that any

law firm and/or individual of professional impropriety,

questionable ethics, or misconduct with the given the

opportunity to rebut any and all adverse inferences which

may have arisen by virtue of a prior filings.

Unfortunately, instead of Matthew Fitzsimmons

getting cisqualified, innocent Petitioner get sanctioned,

suffered due process, due process guarantees,

fundamental fairness to victims/litigants, Lassiter v. Dept.

of Social Services, 452 U.S. 18, 24 (1981). In the instant

case not only the counsel/Mr. Fitzsimmons changed the

sides in representing against some other client also

involved as a party, involved with dozens of serious

violations of the Code of Professional Responsibility with

a clear unrebutted factual basis. Even just where "the

firm itself changed sides", without having a need to have

other conflicts such as in the instant. case, the law firm

was disqualified, Analytica, Inc. v. NPD Research Inc..,

708 F.2d 1263 (7th Cir. 05/31/1983). Unfortunately, Mr.

Fitzsimmons’s interest happened to be in violation of

retaining client by way of controlling the board as a board

of trustee and in denying a serious breach of professional

ethics which outweighed any felt obligation to 'come clean

' by ignoring as officers of the court though generally most

of the attorneys are trustworthy, The Lawyer's Obligation

to be Trustworthy when Dealing with Opposing Parties, 33

S.C.L. Rev. 181 (1981). It is not a serious and studied

disregard for the orderly process of justice. There 1s a

legal basis for original position, material

misrepresentation and cover-up involved as alleged

whether that position was found to be legally

correct/incorrect thus can not be characterized as lacking

justification but Matthew Fitzsimmons is vexatious and

representing his controlled clients to protect his improper

acts, Overnite Transp. Co. v. Chicago Indus. Tire Co., 697

F.2d 789 (7th Cir. 1983). In Overnite Transp., the

Petitioner brought suit based on a novel interpretation of

the Interstate Commerce Act, not previously addressed in

published case law. The district court granted the

defendant's motion to dismiss, and on appeal the 7t Cir.

Court affirmed then the district court granted the

defendant's motion for an order assessing attorney's fees

against the Petitioner's attorneys, finding that the

attorneys had acted vexatious in instituting the lawsuit.

On appeal from the attorney fee award, the 7*h Cir. Court

held that the district court had abused its discretion. In

the instant case, the victim/Petitioner deserves the fees,

award, and not Mr. Fitzsimmons under the name of

THCP/NEON to get sanctions against Petitioner.

Disciplina unsel should be allow investigate th

serious violations. As the issues for posed for

consideration, Attorney Fitzsimmons should be

disqualified/disbarred and he even blocked discovery from

boara. of trustee MT Miller to cover his tracks, and as a

Trustee himself should not be tortuously interfering

corporate matters for his self-dealings.

The legal profession demands adherence to the

highest standards of honesty and integrity. It is a fact

that any sanction is an indelible stain on lawyer's as well

on Petitioner's record and by balancing these

considerations, the court can find that Attorney

Fitzsimmons’s misconduct is highly egregious than other

sanctioned attorney's acts/omissions including, a public

reprimanded Ohio State Governor Taft for his lapses in

disclosures under violation of DR 1-102(A)(6) (prohibiting

conduct that adversely reflects on a lawyer's fitness to

practice law), Disciplinary Counsel v. Taft, 858 N.E.2d

414, 112 Ohio St.3d 155 (2006). The court can decide

whether to impose any sanction at all or not but

Petitioner requests court to review the facts. There is no

doubt that duties violated by Attorney Fitzsimmons, often

willfully, caused injury with aggravating factors and he

did not dispute such violations other than just bluntly

blaming on Petitioner for the harm he did to his

numerous clients.

Mr. Fitzsimmons created victim, submitted

materially false affidavit to court, had many violations

including deliberately withholding that which by law they

were required to reveal; Disciplinary Counsel v. Wrenn, 99

Ohio St.3d 222, 2003-Ohio-3288, 790 N.E.2d 1195 (six-

month stayed suspension imposed for assistant county

prosecutor's concealment of exculpatory evidence in a

criminal case), and Disciplinary Counsel v. Jones (1993),

66 Ohio St.3d 369, 613 N.E.2d 178 (six-month actual

suspension imposed for assistant county prosecutor's

failure to advise court in criminal prosecution that he had

found previously misplaced evidence that was potentially

exculpatory or mitigating).

Attorney Fitzsimmons forced Petitioner to keep

disclosing violations of Mr. Fitzsimmons while he keep

feeling the filed facts tend to effect Mr. Fitzsimmons,

he knew that Petitioner was forced to plead with facts

without malice or falsity where actual malice essential to

feel improper against Petitioner, Hahn v. Kotten (1975),

43 Ohio St.2d 237, 244. To the extent Petitioner has to

disclose violations of others and or corporation or his

clients’ are due to Mr. Fitzsimmons’s continued evasion of

facts and his continued shifting of blame on Petitioner in

an effort to cover-up his tracks at the expense of

Petitioner and all other parties. In fact, Petitioner

believes that Attorney is the one who 1s acting with

actual malice.

In the instant case, Attorney Fitzsimmons

neglected 16 clients, and made false statements.

Attorneys indefinitely suspended in the similar or lesser

cases where an attorney repeatedly neglected multiple

clients’, made false statements and or acted dishonestly:

Disciplinary Counse! v. Golden, 97 Ohio St.3d 230, 2002-

Ohio-5934, 778 N.E.2d 564, Dayton Bar Assn. v. Shaman

(1997), 80 Ohio St.3d 196, 685 N.E.2d 518, Akron Bar

Assn. v. Snyder (1997), 78 Ohio St.3d 57,676 N.E.2d 504.

Attorney Fitzsimmons is a Board of Trustr-e for nonprofit

corporation(s) NEON/THCP. While serving in that noble

position of public trust he himself violated the law and

flouted the rules that regulate the legal profession. By

doing so, he betrayed his principal duty as an Attorney --

and he undermined the public's faith in both the legal

profession and our system of justice. As detailed above,

Petitioner does not have Frivolous conduct nor vexatious

conduct and even those statutes requirement was not

followed by courts during the process other than just

believing in materially false allegations of trustee cum

attorney Fitzsimmons, submitted improper billing, and

the listed hundreds of violations are just some of the

reasons attorneys who involved with their self-dealings,

pecuniary benefit should have removed from the case and

he should be disciplined.

Being Trustee, Matthew Fitzsimmons tortiously

interferjng business relationships, controlling the

corporation(s) for his pecuniary benefit, with the

forbidden self-dealings, Attorney Fitzsimmons is

manipulating the events as he deems fit. Mr.

Fitzsimmons should not be rewarded for wrongful acts

but he should be disciplined. Matthew Fitzsimmons’ bills

should not be rubbed on victim/petitioner.

Hope there are Fiduciary duties, accountability;

breach of fiduciary duty, privity, malpractice, malicious

acts and all those plays a role along with the constitution

rights of victims. Trustee cum Attorney Fitzsimmons

should be disciplined with dozens of Disciplinary rule

violations listed above. If not sanctions to attorneys like

Matthew Fitzsimmons, what else an attorney should do to

get sanctioned and how the attorneys who got disciplined

for lesser violations than Trustee cum Attorney

Fitzsimmons can get justice and the attorneys who are

obeying laws and Disciplinary Rules get justified for not

having violations by leaving whom victims brought

forward even at great sacrifice. Trustee cum Attorney

Fitzsimmons should be disciplined with his vexatious

conduct and judgment against victim/Petitioner should be

reversed to the benefit of justice.

In the instant case, trustee cum attorney

Fitzsimmons represented with 35 Disciplinary Rule

violations, over two dozen conflicting issues/parties, used

the MLHOA case appeals of petitioner to his advantage to

claims as if appeals are frivolous and if petitioner is

vexatious and got monetary sanctions too to cover-up his

IRC 4941(d) forbidden self dealings, further affected and

raised the questions about jurisdiction of US Supreme

Court, legal authority of Federal Government over sates

through Federal Supremacy laws, constitutional

guarantees of citizens. But by Mr. Fitzsimmons

materially falsifying the facts in the instant case to cover-

up his tracks and courts getting influenced and declaring

Petitioner’s claim/appeal as frivolous even without the

court following the frivolous statute requirements and

declaring as vexatious and penalizing is in violation of

Amendment VIII with excessive fine/punishment

imposition for honesty and for attempting to get justice

served. Moreover, it is in violation of Amendment IX to

punish in violation of Amendment VIII when sought

justice and for punishing the innocent party. It is in

violation of amendment XIV without due process for fair

Trial while trustee cum attorney Mr. Fitzsimmons

representing himself to cover-up facts with materially

false affidavit, dozens of conflicts of interests as if he is

representing NEON and THCP by converting rival THCP

into NEON and representing against petitioner to whom

he represented in the past and over a dozens parties who

are his confidents but by representing one against other

as it deems fit to him and too by being responsible for the

underlying case cause through intentional and tortious

interference with petitioner’s employments activities with

NEON/THCP. .

WHEREFORE, for the reasons discussed above,

this case involves matters of public and great general

interest and constitutional and due process effects.

Petitioner respectfully requests that this Court grant

jurisdiction so that these :mportant and relevant issues

will be reviewed on the merit and looking forward to find

an attorney who can represent in front of this honorable

court.

Respectfully submighft7

Prasad Bikkani, Pig Se, 3043-Forestlake ie, '

Westlake, OH 44145 (440) 808-1259

Prasadbabu@aol.com

Certificate of Service

Per instructions received, all the parties ever served in

the trial court were listed in caption and mailed the

foregoing copies by U.S, mail on 2nd day of February

2009.

Prasad Bikkani,

In addition served Ohio Attorney General as

constitutional issues involved and forwarded a copy to

Petitioner's attorney Kevin Breen.

Richard Cordray Kevin J. Breen, Esq.

Ohio Attorney General 3500 W. Market Street

State Office Tower Akron, OH 44333

30 E. Broad Street, 17th Phone: (330) 666-3600

Floor Facsimile: (330)-670-6556

Columbus, OH 43215- Email:

3428 kevin.j. breen@gmail.com

(614) 466-4320

- ee

The foregoing was mailed to the Respondents to the

Following address(es):

Rotan E Lee | Dr. Marshall & Frank Kimber

6333 Woodbine Ave % Michael C. Cohan Esq

Philadelphia, PA 19151 1401 The East Ohio Bldg

Cleveland, OH 44114

| (216) 621-7860

Ruth Aaron a Beptin & AssociatesInc

% Brian J Green Esq & Arnold Pinkney

Signature Square II, Suite

220

2501 Chagrin Blvd,

Beachwood, OH 44122

(216) 831-5100

Moreno Miller -

% Shia N. Shapiro Esq

1370 Ontario Street, Suite

330

Cleveland, OH 44113

| (216) 241-7442

14506 South Park Blvd

Cleveland, OH 44128

NEON/THCP

% Matthew Fitzsimmons

25 West Prospect Ave,

Suite 1400

Cleveland, OH 44115

(216) 621-7227

Barry Scheur, SMG,

Robert McMillan, Jimmy

Dee, & Robert Eichler

One Gateway Center Ste

810

Newton, MA 02458

Paula M. Phelps

4530 Warrensville Center Rd,

103 F

Cleveland, OH 44128

Matthew T. Fitzsimmons

25 West Prospect Ave,

Suite 1400

Cleveland, OH 44115

(216) 621-7227

la APPENDIX A

THE Supreme Court Of Ohio

Prasad Bikkani

+. Case No. 2008-1667

Rotan E. Lee, Esq., et al. ENTRY

On March 5, 2007, this Court found Prasad Bikkani to be

a vexatious litigator under S.Ct.Prac.R. XIV(5)(B). This

Court further ordered that Bikkani was prohibited from

continuing or instituting legal proceedings in this Court

without first obtaining leave. On August 21, 2008,

Bikkani submitted a notice of appeal and memorandum in

support of jurisdiction but failed to first seek leave of the

Court. Upon consideration thereof, It is ordered by the

Court, sua sponte, that the notice of appeal and

memorandum in support of jurisdiction are hereby

stricken. Accordingly, this cause is dismissed.

(Cuyahoga County Court of Appeals; No. 89312)

THOMAS J. MOYER

Chief Justice

Filed/Docketed August 26, 2008

2a APPENDIX B

THE Supreme Court Of Ohio

Prasad Bikkani

V. Case No. 2008-1667

Rotan E. Lee, Esq., et al.

ENTRY

On March 5, 2007, this Court found Prasad Bikkani to be

a vexatious litigator under S.Ct.Prac.R. XIV(5)(B). This

Court further ordered that Bikkani was prohibited from

continuing or instituting legal proceedings in this Court

without first obtaining leave. On September 8, 2008,

Bikkani submitted a motion for leave to file a motion for

reconsideration. Upon consideration thereof,

It is ordered by the Court that the motion is denied.

(Cuyahoga County Court of Appeals; No. 89312)

THOMAS J. MOYER

Chief Justice

Filed/Docketed September 12, 2008

3a APPENDIX C

Case 2:07-cr-00169-EEF-JCW Document 395 Filed

11/12/2008

MINUTE ENTRY

FALLON, J. NOVEMBER 12, 2008

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA

VERSUS CRIMINAL ACTION

BARRY S. SCHEUR NO. 07-169

SECTION: L

BEFORE JUDGE ELDON E. FALLON

Case Manager: Gaylyn Lambert

Court Reporter: Karen Ibos

Appearances: James Brown, Esq., Shaun Clarke, Esq. and

Kerry Murphy, Esq. for defendant

AUSA Dall Kammer, Joe Capone and Mimi Nguyen

for government Probation Officer

SENTENCING as to counts 1, 2, 5,6, 11, 12,13 & 14 0f

the Third Superseding Indictment:

Defendant is present.

The government's objections to the PSI are addressed and

resolved.

The defendant's objections to the PSI are addressed and

resolved.

Sentence: See Judgment in a Criminal Case.

The defendant is allowed to self-surrender on January 8,

2009.

The defendant is released on present bond.

JS-10: :57 Filed/Docketed November 12, 2008

da APPENDIX D

Case 2:07-cr-00169-EEF-JCW Document 395 Filed

11/12/2008

MINUTE ENTRY

FALLON, J. NOVEMBER 12, 2008

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA

VERSUS CRIMINAL ACTION

BARRY S. SCHEUR NO. 07-169

SECTION: L

BEFORE JUDGE ELDON E. FALLON

Case Manager: Gaylyn Lambert

Court Reporter: Karen Ibos

Appearances: James Brown, Esq., Shaun Clarke, Esq. and

Kerry Murphy, Esq. for defendant

AUSA Dall Kammer, Joe Capone and Mimi Nguyen

for government Probation Officer

SENTENCING as to counts 1, 2, 5, 6, 11, 12, 13 & 14 of

the Third Superseding Indictment:

Defendant is present.

The government's objections to the PSI are addressed and

resolved.

The defendant's objections to the PSI are addressed and

resolved.

Sentence: See Judgment in a Criminal Case.

The defendant is allowed to self-surrender on January 8,

2009.

The defendant 1s released on present bond.

JS-10::57 Filed/Docketed November 12, 2008

5a APPENDIX E

Case 2:07-cr-00169-EEF-JCW Document 392 Filed

11/12/2008 Page 1 of 12

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA * CRIMINAL

DOCKET

VERSUS * NO. 07-169

BARRY S. SCHEUR, ET AL. * SECTION “L” (2)

ORDER & REASONS

Before the Court is the Government’s Motion for a

Preliminary Order of Forfeiture (Rec.Doc. 297). On June

26, 2008, the Court held a forfeiture hearing and took the

matter under submission. For the following reasons, the

Government’s Motion is GRANTED IN PART. The Court

will issue an appropriate Preliminary Order of Forfeiture.

I. BACKGROUND

On April 27, 2007, the Government filed a Third

Superseding Indictment against the Defendants, Barry

Scheur, Robert McMillan, Rodney Moyer, and Danette

Bruno. The 14-count indictment charged the Defendants

with conspiracy, mail fraud, and wire fraud, all in

violation of Title 18, United States Code, Sections 371,

1341, 1342, and 1343. In connection with the indictment,

the Government also filed a Notice of Forfeiture pursuant

to Title 18, United States Code, Section 981, made

applicable through Title 28, United States Code, Section

2461. In the Notice of Forfeiture, the Government states

that, in the event of a guilty verdict, it will seek “any and

all property, real or personal, which constitutes or is

derived from proceeds traceable to violations of Title 18,

United States Code, Sections 1341 and 1343.”

Shortly before the date of tria! Defendant Rodney

Moyer pled guilty to Count One oi the Third Superseding

Indictment, which charges the Defer iants with

knowingly and willfully combining, conspiring,

confederating, and agreeing with each other to devise a scheme

to defraud and obtain money and property, specifically from The

Oath, The Oath’s insureds, and The Oath’s medical service

providers, by means of material false and fraudulent pretenses,

representations alu promises, by misleading the LDOI into

believing that The Oath was mceting the statutorily required

minimum net worth of $3 million, and thereby unlawfully

enriching themselves through the continued operation of The Oath,

specifically by continuing to collect premiums from the insureds

and continuing to collect management fees from The Oath, during

a ume when the Oath was not meeting the statutorily required

minimum net worth.

(Third Superseding Indictment 4 19.)

On April 28, 2008, the jury trial began as to the

three remaining Defendants—Barry Scheur, Robert

McMillan, and Danette Bruno. On May 8, 2008, after both

parties had made their closing arguments, the Court

delivered the jury charges and the jury retired to

deliberate. On May 12, 2008, the jury returned its verdict,

finding Defendant Barry Scheur Guilty as to Counts 1, 2,

5, 6, and 11 through 14; Defendant Robert McMillan

Guilty as .o Counts 1, 5, and 14; and Defendant Danette

Bruno Not Guilty as to all Counts.

Il. PRESENT MOTIONS

(Signed by Judge ELDON E. FALLON)

7a APPENDIX F

[Cite as Ohio Consumers’ Counsel v. Pub. Util. Comm..,

105 Ohio St.3d 1211, 2005-Ohio-1023.]

OHIO CONSUMERS’ COUNSEL, APPELLANT, v.

PUBLIC UTILITIES COMMISSION OF OHIO,

APPELLEE.

[Cite as Ohio Consumers’ Counsel v. Pub. Util. Comm.,

105 Ohio St.3d 1211, 2005-Ohio-1023.]

Motions to dismiss granted.

(No. 2004-1227 — Submitted January 18, 2005 — Decided

March 23, 2005.)

APPEAL from the Public Utilities Commission, Nos. 03-

1459-GA-ATA, 94-987-GA-AIR, 96-1113-GA-ATA, and 98-

222-GA-GCR. ON MOTION TO INTERVENE and

MOTIONS TO DISMISS.

{4 1} The motion to intervene as appellee by Columbia

Gas of Ohio, Inc., is granted.

{4 2} On July 29, 2004, appellant filed a notice of appeal.

The notice of appeal did not include the certificate of filing

required by S.Ct.Prac.R. XIV(2)(C)(2). Accordingly,

{4 3} IT IS ORDERED by the court, sua sponte, that

appellant’s notice of appeal be, and hereby is, stricken.

{q 4} IT IS FURTHER ORDERED by the court that the

motions to dismiss of the Public Utilities Commission and

Columbia Gas of Ohio, Inc. be, and hereby are, granted.

{q 5} ACCORDINGLY, IT IS FURTHER ORDERED by

the court that this cause be, and hereby is, dismissed.

MOYER, C.J., LUNDBERG STRATTON, O’CONNOR,

O'DONNELL and LANZINGER, Ju., concur.

RESNICK and PFEIFER, JJ., concur in part and dissent

in part.

SUPREME COURT OF OHIO

PFEIFER, J., concurring in part and dissenting in

part. {4 6} Ohio Consumers’ Counsel (“OCC”) filed a

notice of appeal with this court and with the Public

Utilities Commission’s (““PUCO”) docketing division on

July 29, 2004. OCC failed to include a certificate of filing

as required by S.Ct Prac.R. XIV(2)(C)(2) and a case-

information statement as required by S.Ct.Prac.R. II(6).

PUCO contends that OCC’s failure to include the

certificate of filing and the case-information statement

should result in the dismissal of the case. OCC contends

that its failure is technical and did not prejudice PUCO

and, therefore, should be overlooked in this instance.

{q 7} “[T]he fundamental tenet of judicial review in Ohio

[is] that courts should decide cases on their merits.” State

ex rel. Wilcox v. Seidner (1996), 76 Ohio St.3d 412, 414,

667 N.E.2d 1220, citing DeHart v. Aetna Life Ins. Co.

(1982), 69 Ohio St.2d 189, 192, 23 0.0.3d 210, 431 N.E.2d

644. “Judicial discretion must be carefully—and

cautiously—exercised before this court will

uphold an outright dismissal of a case on purely

procedural grounds.” DeHart, at 192, 23 0.0.3d 210, 431

N.E.2d 644. Unfortunately, this court todav comes down

on the side of hypertechnical obeisance.

{4 8} S.Ct.Prac.R. XIV(2)(C)(2) states, “In an appeal from

the Public Utilities Commission * * *, the notice of appeal

shall also contain a certificate of filing to evidence that

the appellant filed a notice of appeal with the docketing

division of the Public Utilities Commission * * *.” OCC

should have included a certificate of filing; it didn’t. The

reason for the certificate, however, is to ensure that a

notice of appeal was filed with the docketing division of

the PUCO; the notice of appeal was so filed.

{4 9} PUCO was on notice of the appeal and has not

argued that it was prejudiced by OCC’s failure to include

the certificate of filing. This case should serve as an

opportunity for this court to remind parties to routinely

check for new rules. $.Ct.Prac.R. XIV(2)(C)(2) had been in

effect less than a month when OCC failed to follow it. See

101 Ohio St.3d CLXI. At most, we should rule that

S.Ct Prac.R. XIV(2)(C)(2) will be strictly enforced from

this date forward. Unfortunately, this case will illustrate

this court's slavish devotion to a nonsubstantive rule.

{4 10} S.Ct.Prac.R. II(6) states, “In all appeals filed in the

Supreme Court, the appellant shall file, in addition to the

other documents required by these rules, a case

information statement at the time the notice of appeal is

filed. The statement shall identify the issues and

applicable law presented for review * * *.”

Again, OCC should have complied with the ruie; it did

not. Again, PUCO was not prejudiced, and, again, we

should not slavishly apply technical requirements that do

not entrench on substantive issues.

{4 11} Finally, PUCO did not raise these technical

arguments until over four months had passed. This fact

alone suggests that PUCO was not prejudiced, as any real

prejudice would have been apparent months earlier. It

also suggests that PUCO may have delayed asserting

these violations until after they could have been

corrected. Because of the technical nature of the

violations, they could have been easily and quickly

corrected had OCC been informed of the violations by

either this court or PUCO.

{4 12} Cases should be resolved on the merits; that is a

fundamental tenet of Ohio case law. 1 would overlook the

technical violations in this case because they did not

prejudice the adverse party.

{4 13} | concur with the court’s decision to grant the

motion to intervene. Accordingly, I concur in part and

dissent in part.

RESNICK, J., concurs in the foregoing opinion.

{Cite as Ohio Consumers' Counsel v. Pub. Util.

Comm., 105 Ohio St.3d 1211, 2005-Ohio-1023.]

10a APPENDIX G

(Docketed on September 30, 2005)

COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

PRASAD BIKKANI, Plaintiff CASE NO. CV-05-566249

ROTAN LEE, Esq, et al JUDGE DAVID T. MATIA

Defendants

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT, ROTAN E. LEE, ESQUIRE’S MOTION

T{[O] DISMISS COMPLAINT FOR FAILURE TO STATE

A CLAIM UPON WHICH RELIEF CAN BE GRANTED

) OB NTIFF’S COM INT

Plaintiff alleges Defendant Cleveland

Neighborhood Health Services, currently known as North

East Ohio Neighborhood Health Centers, and Defendant

Total Health Care Plan, Inc. (here after THCP) hired him

in October of 1994 [Complaint at 43]. Then, in February

1999, THCP hired the Defendant Scheur (Barry S.

Scheur, Esquire, Scheur & Associates, Inc, and Ruth M.

Aaren) along with several other named Defendants,

including Defendant Lee, as consultants [Complaint at

1911, 20]. . Plaintiff further alleges that beginning in

February 1999, and continuing until February 2000,

Defendants Scheur along with several other named

Defendants, tncluding Defendant Lee, used THCP to

engage n several fraudulent and corrupt activities

{Complaint at 18, 19]. Plaintiff alleges he was

“wrongfully” terminated on June 25, 1999 at which time

he was over forty (40) years of age (Complaint at 41].

Plaintiff fited his Complaint on June 27, 2005, more

than six (6) years after the date of his termination. The

Complaint appears to set forth several causes of action

based on the following legal theories: (1) employment

discrimination based on age, race, and national origin,

lla

(2) wrongful termination, (3) retaliatory action in

violation of federal and state whistleblower statutes, (4)

sexual harassment, (5) hostile work environment, (6)

violation of RICO and the Ohio Corrupt Activities Act; (6)

federal mail and wire fraud; and (7) civil conspiracy.

II... LAW & ARGUMENT

A. Standard of Review

In accordance with Civ. R. 12(B)(6), a defendant may

move to dismiss any claim for relief in a plaintiff's

complaint, prior to submittng an answer, when the

claim for relief fails to state a claim upon which relief

can be granted: Dismissal based on a plaintiffs failure

to state a claim upon which relief can be granted is

appropriate “where it appears beyond doubt that the

plaintiff can prove no set of facts in support of its

claims.” York v. Ohio State Hwy. Patrol (1991), 60

Ohio St.3d, 143, 144; Chanda v. Youseff, 8» Dist. No.

82505, 2004-Ohio-635 117.

B. Each and every cause of actic:: set forth in the

Complant is tume.barred by the applicable statute

of limitations.

The statutes of limitations for the causes of action listed

in the Complaint are as follows:

[listed]...

The face of Plaintiffs Compliant shows that he has filed

each of his claims outside of the applicable statute of

limitations. Plaintiff alleges he was “wrongfully”

terminated on June 25, 1999. He further alleges that

Scheur Defendant, including Defendant Lee, engaged in

“fraudulent and corrupt” activities in and before February

2000. Plaintiff filed the Coraplaint on June 2, 2005,

exactly six years and two days after his termination, and

more than five and a half vears after the date he alleges

the Scheur Defendants, including Defendant Lee, engaged

in “corrupt and

12a

fraudulent” activities. As such, Plaintiffs causes of action

for Employment Discrimination, Wrongful Discharge,

Retaliation Against a Whistle Blower, Sexual

Harassment, Hostile Work Environment, Violations of the

Ohio Corrupt Activities Act, Violations of the Racketeer

influenced and Corrupt Organizations Act (RICO),

Federal Mail and Wire Fraud, and Civil Conspiracy must

be dismissed, as each has been asserted well beyond all

applicable statutes of limitation.

II]. CONCLUSION

The causes of action set forth in the Complaint are

time barred by each applicable statute of limitation.

Therefore, Defendant respectfully requests that this

Court dismiss the Complaint with prejudice.

Respectfully submitted,

ZARWIN, BAUM, DeVITO,

KAPLAN,

SCHAER & TODDY, P.C.

Rotan E. Lee, Esquire

1515 Market Street, Suite 1200

Philadelphia, PA 19102

(215) 569-2800

(215) 569-1606 (Fascimile)

relee@zarwin.com

Attorney for Defendant,

Rotan E. Lee (Pro Se)

Filed on September 30, 2005 AND

THE RELATED ENTRY

09/30/200 |D |M_ | D1 ROTAN LEE MOTION TO

5 1 |/|O DISMISS COMPLAINT FOR

FAILURE TO STATE A CLAIM

UPON WHICH RELIEF CAN

BE GRANTED PRO SE 9999999

| 05/10/2006 GRANTED AND

| DENIED IN PART

13a APPENDIX H

(Docketed on 10/28/2005)

IN THE COURT OF CPMMON PLEAS

CUYAHOGA COUNTY, OHIO

Prasad Bikkani Case No 566249

Plaintiff

v. Judge: David T. Matia

Rotan E Lee, et al

Defendants

With reasonable particularity and clarification,

notice of deposition of defendant NEON’s board

Trustee/Member, Matthew Fitzsimmons

The Defendants will take notice that the Plaintiff, Prasad

Bikkani, will take the deposition of Matthew T.

Fitzsimmons. Board Trustee Member of NEON (during

1999 and now) on November 11, 2005 at 10 a.m., before a

Court Reporter at

Court Reporters of Akron, Canton and Cleveland

Attorney Services of NorthEast Ohio

1404 Terminal Tower, Cleveland, Ohio 44113

Mr. Fitzsimmons deposition was prioritized to minimize

future conflicts with the discovery process to the extent

feasible. In an effort to clarify issues pertinent to Mr.

Fitzsimmons and to show reasonable particularity, the

matters on which Mr. Fitzsimmons examination is

requested/highlighted some pertinent deposition content

below. The deposition is taken pursuant to Rule 30 of the

Ohio Rules of Civil Procedure.

Instructions to NEON board Trustee/Member

Matthew T. Fitzsimmons:

Depoition content includes the following topics and

request to bring the relevant documents that are in your

possession. Where you claim any privilege please specify

the kind of privilege and if deposition date/time should

be changed then inform promptly and feel free to use

email Prasadbabu@aol.com at any time of the day.

l4a

Correspondence you received including by fax from

NEON/THCP/Paula Phelps/Rotan Lee/Scheur Group in

1999 and the information you sent to them in 1999 about

Plaintiff, Prasad Bikkani:

e Includes copy of Robert McMillan/Scheur Consultant

memo dated April 20, 1999 in an effort to evade

$6,500. Training reimbursement upon sending to

training and while promising to pay others for the

same or similar training

e Includes separation agreement preparation for age

over 40 years with withhold of Prasad Bikkani’s

unused vacation in an effort to get a wrongful

discharge and other wrongdoing waivers.

e Includes post termination correspondence while

Plaintiff refusing to sign waiver to unlawful acts.

“To the extent NEON board resolutions designeting you

as spokes person in 1999 to NEON or authorizing you to

act on behalf of NEON”

“To the extent, same NEON board who authorized in 1999

to assist consultant Rotan Lee/acting CEO/Scheur Group

activities to oust Plaintiff from NEON/THCP authorized

you now to express their surprise in your October 10,

2005 communication.

To the extent, current THCP/NEON board members

aware of your/NEON 1999 role in ousting Plaintiff.

To the extent THCP/NEON board aware of Plaintiffs

communication with NEON/THCP prior to filing lawsuit

yet if they expressed surprise to you.

To the extent the current THCP/NEON board members

aware of Evelyn Armstrong’s affidavit that you submitted

to court on or around September 6, 2005.

15a

To the extent, you acted a alter ego of NEON and THCP

in 1999 To the extent, you are acting as alter ego of

NEON/THCP now in year 20°5

To the extent, your communication through acting CEO of

THCP/Rotan Lee/Scheur Group Consultant, around May

1999, to THCP’s board with your objections to NEON’s

officer becoming THCP’s CEO.

To the extent you did not communicate in 1999 to

NEON’s board about your support to THCP’s acting

CEO/Rotan Lee/Scheur Group Consultant to become a

regular THCP’s CEO compared to NEON’s wishes of its

officer becoming THCP’s CEO.

To the extent, your endorsement of using non-profit

corporation Federal funds towards political purposes

through Beptin Associates Arnold Pinkney in 1999.

To the extent your endorsement of adding Beptin

Associate’s owner, Arnold Pinkney into THCP Trustee to

control THCP board.

To the extent to your knowledge as NEON board member,

about hiring and supervision of NEON employees by

Plaintiff.

The Payments you received from THCP/Rotan

Lee/Scheur Group in 1999 in one form or the other

following ouster of Plaintiff, after Rotan Lee/Scheur

Group getting lump sum payments.

To the extent, you were alleged/proven by your opponent

attorney(s) about you submitting false affidavits and

16a

filing frivolous motions in the cases especially involving

THCP/NEON, and the pattern.

Respectfully submitted,

Prasad Bikkani, Pro Se

3043 Forest Lake Dr

Westlake, OH 44145

Prasadbabu@aol.com, (440) 864-6366

Certificate of Service

A copy of the foregoing was sent by regular US Mail on

ths 28th day of October 2005 to the following addresses.

Prasad Bikkani Pro Se

Piuintiff

---:. Addresses of Defendants...

Filed/Docketed October 28, 2005, as inserted the

entry below:

10/28/200 |P |O |P1 PRASAD BIKKANI WITH

5 | 1 |T | REASONABLE PARTICULARTIY

| A} ‘s CALRIFICATION , NOTICE

| OF LSPOSITION OF DEFT.

| NEON'S BORAD TRUSTEE/

| -MEMOBER, MATTHEW GT.

| FITSZIMMONS. PRO SE 9999999

17a APPENDIX I

(Docketed on 11/22/2005)

IN THE COURT OF CPMMON PLEAS

CUYAHOGA COUNTY, OHIO

PRASAD BIKKANI, CASE No. CV05566249

Plaintiff

Vs. JUDGE DAVID T. MATIA

ROTAN G. LEE, EQ, et al MOTION TO

Defendant. WITHDRAW AS

COUNSEL

Now comes Dennis A. Roth, Mary Louisa L

‘Hommedicu, J. Ryan Williams, Hayley L. Butera and the

firm of Roth Bierman LLP, consel to defendants Barry S.

Scheur, Esq., Scheur & Associates, Inc. and Roth M.

Aaron (collectively, the “Scheur Defendants”), and hereby

request from this Honorable Court leave to withdraw as

counsel for Scheur Defendants in the above-captioned

case. This withdraw is requested due to a conflict of

interest between Scheur Defendants and by agreement of

Scheur Defendants. Scheur Defendants have been

notified of the intent to withdraw by certified mail, return

receipt requested, as required by Local Rule 10(B).

Scheur Defendants are in the process of retaining

new counsel with respect to this htigation. For the

foregoing reasons, Mary Louisa L. ‘Hommedieu, J. Ryan

Williams, Hayley L. Butera and the firm of Roth Bierman

LLP, request leave to withdraw as Counsel for Scheur

Defendants. A proposed order is attached.

Respectfully submitted,

ROTH BIERMANN LLP

18a

Mary Louisa L. Hammedieu (#0066808)

J. Ryan William (#0076696)

Hayley L. Butera (#0078659)

5196 Richmond Road

Bedford Heights, OH 44146

216.595.0071

216.595.0073 FAX

Attorneys for Defendants Barry S. Scheur, Esq, Scheur &.

Associates, Inc. and Ruth M. Aaaron

Filed/Docketed October 28, 2005, as inserted the

entry below:

11/22/2005 |D |MO | DEFENDANT(S) BARRY S

SCHEUR(D2), SCHEUR &

ASSOCIATES INC DEFENDAN

T(D3) and RUTH M AARON(D5)

MOTION TO WITHDRAW AS

COUNSEL HAYLEY BUTERA

0078659 03/20/2006 - GRANTED

19a APPENDIX J

NICOLA, GUDBRANSON & COOPER, LLC

ATTORNEYS AND COUNSELLORS

[Letter head with several names on it]

October 10, 2005

Mr. Prasad Bikkani

3043 Forestlake Drive

Westlake, OH 44145

Re: Prasad Bikkani v. Rotan E. Lee, Esagq, et al

Cuyahoga County Court of Common Pleas

Case No. CV-05-566249

Dear Mr. Bikkani:

As you know, I represent NorthEast Ohio

Neighborhood Health Services, Inc. (“NEON”) and Total

Health Care Plan, Inc. (““THCP”), both of whom you have

named as defendants in your Pro se Complaint.

I — and they — were shocked by your effort to join

them as defendants. I have reviewed the Complaint

carefully, and am at a loss to understand what the basis

of your claim against them is — or could be. You were not

employed by NEON in 1999. Thus, you do not have, as a

matter of law, a wrongful discharge/employment

discrimination claim against NEON. NEON is completely

unrelated to your problems with the Scheur Management

Group, Rotan Lee, and to your problems with the Scheur

Management Group, Rotan Lee, and others. If, as it

appears, your claim is that the Scheur Management

group, Rotan Lee, and others harmed THCP, it is far from

clear why you chose to name THCP and NEON as

defendants and drag them into this mess. In your efforts

to get back at the Scheur Management Group people,

Rotan Lee and others you are needlessly hurting NEON

and THCP by forcing them to incur attorneys’ fees, costs,

and expenses that they should not have to bear. The

Complaint fails to identify with particularity

20a

what, exactly, you allege my clients did that was wrong.

Many of the purported claims against my clients are time-

barred.

The Complaint fails to allege any facts upon which

NEON or THCP could possibly be liable to you. I write to

you now to ask you to dismiss them from this case before

we have to go through discovery and full bore litigation.

These allegations against NEON and THCP lack any

factual and legal merit. NEON and THCP will defend

them vigorously.

My clients have authorized me to advise you that, if

they have to litigate this case and prevail — as they expect

that they will — they will seek to recover all of their

attorneys’ fees, costs, and expenses incurred in this case

against you, pursuant to Ohio R. Civ. P. 11, R.C. 2323.51,

Ohio’s frivolous conduct statute, and other applicable laws

and rules. Just so that there is no misunderstanding, I

wanted to give you one last chance to do the right thing

and voluntarily dismiss my clients from this lawsuit.

The fact that you had problems with the Scheur

Management Group people, Rotan Lee, and others is not

the fault of my clients and cannot, as a matter of law, be

laid at my clients’ doorstep. The fact that you had

problems with these outside consultants is no jurisdiction

for casting your net wider to seek compensation from

persons who, like my clients, are wholly unrelated to your

predicament. The claims you assert against NEON and

THCP are uncomfortably baseless and frivolous.

Please notify me promptly whether you will

voluntarily dismiss NEON and THCP from this case. If

you would like to discuss this matter further, please give

me call.

Very truly yours,

Matthew T. Fitzsimmons

MTF/rgg

2la APPENDIX K

Filed April 23, 2007

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

WM SPECIALTY MORTGAGE LLC CASE NO. CV07-

620252

PLAINTIFF, JUDGE BRIAN J, CORRIGAN

VIJAYA BIKKANI ET AL ANSWER OF

DEFENDANTS NORTHEAST OHIO

NEIGHBORHOOD HEALTH SERVICES, INC. AND

TOTAL HEALTH CARE PLAN, INC.

______ Northeast Ohio Neighborhood Health Services, Inc,

(“NEON”) and Total Health Care Plan, Inc, (““THCP’”), for

their Answer to the Complaint, state as follows:

FIRST DEFENSE

1-6. Deny, for lack of knowledge or information sufficient

to form a belief, the allegations of paragraph 1 through 6.

7. Admit that they had a Certificate of Judgment Lien JI.-

06-280929 which has been satisfied and released, and

otherwise deny the remaining allegations of paragraph .

See attached Exhibit A.

8. With regard to the allegations of paragraph 8 of the

Complaint, incorporate, as if fully rewritten herein, the

admissions, denials, and averments set forth above in

paragraphs 1 through 7.

9-1-. Deny, tor lack of knowledge or information sufficient

to form a belief, the allegations of paragraph 9 and 10.

11. With regard to the allegations of paragraph 11 of the

Complaint, incorporate, as if fully rewritten herein, the

admissions, denials, and averments set forth above in

paragraphs 1 through 10.

12-13. Deny, for lack of knowledge or information

sufficient to form a belief, the allegations of paragraph 12

and 13 of the Complaint.

14. Deny each and every remaining allegations of the

Complaint not heretofore specifically admitted to be true.

22a

SECOND DEFENSE

15. The Complaint falls to state a claim against NEON

and THCP upon which relief can be granted.

THIRD DEFENSE

16. The Certificate of Judgment Lien in favor of NEON

and THCP (JL-06-280929) has been satisfied and released

has also been satisfied and released. See attached Exhibit

FOURTH DEFENSE

17. NEON and THCP reserve the right to amend and

supplement their Answer as discovery progresses, up to

and including the trial of this action.

WHEREFORE, having fully answered the

Complaint, NEON and THCP pray that this Court enter

judgment in their favor, and award them their costs,

disbursements, expenses, and attorneys’ fees incurred in

this action, and that the Court award them such other

and further relief as the Court deems just, appropriate,

and equitable under the circumstances.

Respectfully submitted,

NICOLA, GUDBRANSON & COOPER, LLC

Matthew T. Fitzsimmons (0013404)

R. Christopher Yingling (00665511)

jvandmark office Towers

Republic Building, Suite 1400

25 West Prospect Avenue

Cleveland, Ohio 44116

Phone: (216) 621-7227, Fax: (216) 621-3999

Attorneys for Defendants

NorthEast Ohio Neighborhood Health

Services, Inc. and Total Health Care Plan, Ine.

23a APPENDIX L

Filed on April 19, 2007

IN THE COURT OF APPEALS OF OHO

EIGHTH APPELLATE DISTRICT

CUYAHOGA COUNTY

PRASAD BIKKANI CASE No 06 088650

Plaintiff-Appellant,

Vv.

ROTAN E. LEE, ESQ, et al.

Defendants-Appellees

RELEASE OF LIEN AND SATISFACTION OF

JUDGMENT

The Court is hereby notified that the Judgment entered

on October 30, 2006 against Prasad Bikkani and in favor

of NorthEast Ohio Neighborhood Health Services and

that the judgment recorded at Journal 623, page 81, and

related Certificate of Judgment Lien JL-96-280929, now

satisfied, may accordingly be removed.

Respectfully submitted,

NICOLA, GUDBRANSON & COOPER, LLC

Matthew TT. Fitzsimmons (0013404)

R. Christopher Yingling (00665511)

Landmark office Towers

Republic Building, Suite 1400

25 West Prospect Avenue

Cleveland, Ohio 44115

Phone: (216) 621-7227, Fax: (216) 621-3999

Attorneys for Defendants-Appellees

NorthEast Ohio Neighborhood Health Services, Inc. and

Total Health Care Plan, Inc.

EXHIBIT A for Appendix K

24a APPENDIX M

NICOLA, GUDBRANSON & COOPER, LLC

ATTORNEYS AND COUNSELLORS

[Letter head with several names]

Ms. Mary Jo Lopez May 22, 2001

Chief Deputy Rehabilitator, Total Health Care Plan, Inc.

c/o Carlile, Patchen & Murphy LLP

366 East Broad Street, Columbus, Ohio 43215

Dear Mary Jo:

As you recently requested, I am enclosing our

statements for legal services rendered to THCP from 1998

through the present (attached at Tab A); our audit

response letters for that time period (attached at Tab B);

and our litigation updates (attached at Tab C).

The detail of the legal services we performed is

contained in all of these documents. As a general

proposition, our work for THCP was primarily defending

commercia!/business claims, handling state and federal

discrimination/wrongful discharge cases, defending THCP

in a wide variety of general civil matters, and general

employment and human resources counseling. The

resolution of all these matters is set forth in detail in the

audit response letters (attached at Tab B).

Sometime around mid-March of 1999, Rotan E. Lee

of the Shure Management Group proposed that our firm

forego hourly billing and switch to a monthly retainer of

$5,000 to represent.

THC'P in all wrongful discharge/discrimination/

human resources matters. We agreed to do so. The Shure

Management Group's rationale for this arrangement was

to stabilize THCP's expenses, and make them fixed and

predictable, as opposed to the roller coaster nature of bills

from law firms which go up and down depending on

activity. We were to handle all general employment and

human resources matters for THCP on this flat-fee basis,

without submitting hourly detailed time charges for such

activitics.

25a

There was obviously a risk and a benefit for both our firm

as well as THCP with this arrangement.

From March 3, 1999 through the early part of 2000,

I provided substantial legal advice to Rotan E. Lee, other

members of Shure Management Group, Paula Phelps,

Gloria Stewart, and others involved with THCP'’s human

resources function relating to employee discharge ana

discipline matters. I was intimately involved in providing

legal advice for the design and implementation of Project

Slimfast (the reduction-in-force Mr. Lee decided to

implement), and, at the request. of Mr. Lee, attended

strategy sessions for various personnel matters, identified

personnel or -force, drafted various separation

agreements for employees above and below the age of

forty, and employees in both union and nonunion

positions.

When it became apparent that THCP was using, or going to

use, another law firm to do this work, I wrote to Martha

Muhammad, then THCP’s Chief Financial Officer, and volunteered

to give THCP the option to terminate this arrangement. See Tab D.

At the tirne I made that suggestion, I had not been asked by anyone

to terminate the arrangement of the $5,000 monthly retainer.

THCP agreed that it made sense to then terminate that

arrangement, and I then stopped doing the employment and human

resource counscling work for THCP and stopped receiving the

$5,000 monthly payments. There were additional matters which

THCP was kind enough to refer to me, principaliy the Akron

Children's Hospital lawsuit, which [ defended until ODI took over

as Rehabilitator.

I hope this answers any questions you and your

colleagues may have. Please give me a call if you need.

any further information.

Sincerely,

Mathew T. Fitzsimmons

MTF:rph Enclosures

F:\NP\M7f\thep\L-LOpez 5.16.01.doc

26a APPENDIX N

NORTHEAST OHIO NEIGHBORHOOD HEALTH

SERVICES, INC.

M. T. MILLER, DDS, Chairperson Willie F. Austin, CEO

Matthew Fitzsimmons, 1*t Vice Chairperson

Mark C. Batson, COO

Willie Starkey, Treasurer James F. O'Donnell CFO

Rev. James Rankin, Treasurer Walter J. Clark, Med Dir.

Linda Highsmith, MBA, Secretary

Billy B. Foster, Dental Director

March 22, 2005

Prasad Bikkani

3043 Forestlake Drive

Westlake, OH 44145

Dear Mr. Bikkani:

I have left voice messages at both of the telephone

numbers you included in your letter dated December 27,

2004 to the CEO of NEON. Since I have not received a

response to my messages [ thought in best to try US mail

in hopes that it will get your attention. It is my hope that

we will be able to meet and discuss the content of your

letter so that J might understand from your re spective

the rationale for this communication. It was my

understanding and belief that all matters pertaining to

THCP were resolved prior to the court decision to dissolve

the plan.

Please contact me at your convenience.

Sincerely,

Willie F. Austin

President and CEO

In affiliation with the department of health and

human services Accredited by the joint commission

on accreditation of health care organizations

27a APPENDIX O

(Filed 9/6/2005 with motions by Matthew

Fitzsimmons)

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

PRASAD BIKKANI CASE NO. CV-05-566299

Plaintiff, JUDGE DAVID T. MATIA

ROTAN E. LEE, ESQ., et al. AFFIDAVIT OF EVELYN

ARMSTRONG

Defendants

STATE OF OHIO

SS.

COUNTY OF CUYAHOGA

Evelyn Armstrong, being first duly sworn, states

as follows:

1. I am the Acting Director of Human Resources of

NorthEast Ohio Neighborhood Health Services, Inc.

("NEON").

2. Unless otherwise indicated, the information contained

herein is based upon my personal knowledge, and/or upon

my review of records maintained by NEON in the

ordinary course of business.

3. lL have reviewed NEON's personnel records and files.

NEON kas no records or files reflecting or demonstrating

that Prasad Bikkani was ever an employee of, or

employee by, NEON from 1995 to the present. Mr.

Bikkani was not an employee of NEON's in June and July

1999 - - the point in time that he alleges he was

wrongfully terminated from employment at Total Health

Care Plan, Inc.

FURTHER AFFANT SAYETH NAUGHT

(Evelyn Armstrong)

SWORN TO BEFORE ME and subscribed in my presence

this 23'¢ day of September, 2005.

NOTARY PUBLIC

28a APPENDIX P

Cleveland Neighborhood Health Services, Inc

12800 Shaker Boulevard Cleveland, Ohio 44120

(216) 991 :3000 FAX 991-3011

Dunun Neuhauser, Ph.D.. Chairperson

Jumes G. Turner Chief Executive Officer

Don Slocumm, Ist Vice Chairperson

M. T. Miller, DDS,, 2"¢ Vice Chairperson

Ethel Green, Treasurer

September 27, 1994

Mr. Prasad Bikkani

596 Miner Rd.

Highland Hts, Ohio 44143

Dear Mr. Bikkani:

We are very pleased to offer you the programmer/Analyst

position with Cleveland Neighborhood Health Services,

inc. at the Shaker Blvd location beginning tentatively

October 10, 1994.

This offer is subject to successful completion of the 6-

month introductory (probationary) period. The hours are

8:30 a.m. to 5:30 p. m., Monday through Friday. The

annual salary for this position is $ [redacted]. The

benefits package will be presented to you in detail at

orientation, which will be held following your pre

employment physical. The physical will be as follows:

Monday, October 10, 1994

9:30 a.m.

Hough Health Center

8300 Hough Avenue

Cleveland, Ohio 44103

Report to the Administrative Area

Ms. Yolanda Moorer

29a

Orientation will be held following the physical at:

13214 Shaker Blvd, 24 floor

Cleveland, Ohio 44121

If this is acceptable to you, please write a brief acceptance

letter. You have any questions, do not hesitate to contact

me. Thank you, again for your interest in Cleveland

Neighborhood Health Services, Inc. We look forward to

your jcining our “family”

Sincerely,

Robert James

Director of Human Services

A program of Cleveland Neighborhood Health Services,

Inc in affiliation with the department of Health and

Human Services Accredited by the joint commission on

accreditation of health care organizations

30a APPENDIX Q

Court of Appeals Of Ohio

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 89312

PRASAD BIKKANI

PLAINTIFF-APPELLEE

Vs.

ROTAN E. LEE, ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT:

REVERSED AND REMANDED

Civil Appeal from the

Cuyahoga County Court of Common Pleas

Case No. CV-566249

BEFORE: Boyle, J., Sweeney, A.J., and McMonagle, J.

RELEASED: June 26, 2008

JOURNALIZED: JUL 7 - 2008

ATTORNEYS FOR APPELLANTS

Matthew T. Fitzsimmons, II]

R. Christopher Yingling

Landmark Office Towers

Republic Building, Suite 1400

25 West Prospec: Avenue

Cleveland, Ohio 44115-1048

ATTORNEY FOR APPELLEE

Kevin J. Breen

3500 W. Market Street Suite 4

Akron, Ohio 44333

BOYLE, M.J., J.:

Defendants-appellants, NorthEast Ohio Neighborhood

Health Services, Inc. (‘NEON") and Total Health Care

Plan, Inc. ("THCP"), appeal the trial court's decision

3la

denying their motion for sanctions against plaintiff-

appellee, Prasad Bikkani. Finding merit to the appeal, we

reverse and remand the case for a hearing.

Factual and Procedural Historv

Bikkani, a former employee of THCP, initiated the

underlying case on June 27, 2005, approximately six

years after his job termination, by filing pro se a 30-page,

107-paragraph complaint against 15 defendants,

including NEON and THCP, purporting to allege claims

for (1) fraud, (2) Ohio RICO violations, (3) race, sex,

natioral origin, and age discrimination under Ohio and

federal law, (4) wrongful] termination, (5) loss of

consortium, and (6) a shareholder's derivative

action. NEON and THCP immediately responded to

Bikkani's complaint by sending a letter and asking him to

withdraw his claims because they were frivolous. The

letter provided in pertinent part as follows:

"* * * T have reviewed the Complaint carefully, and am at

a loss to understand what the basis of your claim against

[NEON and THCP] *** could be. You were not employed

by NEON in 1999. Thus, you do not have, as a matter of

law, a wrongful discharge/employment discrimination

claim against NEON. * * * The Complaint fails to identify

with particularity what, exactly, you allege my clients did

that was wrong. Many of the purported claims against my

clients are time-barred.

"The Complaint fails to allege any facts upon which

NEON or THCP could possibly be hable to you. I write to

you now to ask you to dismiss them from the case before

we have to go through discovery and full-bore litigation.

These allegations against NEON and THCP lack any

factual and legal merit. The claims against them are

baseless and frivolous. NEON and THCP will defend

them vigorously.

32a

"My clients have authorized me to advise you that,

if they have to litigate this case and prevail -as they

expect that they will- they will seek to recover all

of their attorneys’ fees, costs, and expenses incurred in

this case against you, pursuant to Ohio R. Civ. P. 11, R.C.

2323.51, Ohio's frivolous conduct statute, and other

applicable laws and rules. ***"

Bikkani did not withdraw his claims.

Consequently, NEON and THCP moved to dismiss the

claims and, in the alternative, moved for a more definite

statement. Bikkani opposed the motions with a series of

incomprehensible briefs. He further attempted to remove

NEON's and THCP's counsel, Matthew T. Fitzsimmons,

III, by filing on September 12, 2005, the first of four

motions to disqualify attorney Fitzsimmons. In his

motion, he argued that Fitzsimmons had a conflict of

interest because he was a material witness in the case

based on his prior representation of NEON and THCP. He

further alleged that Fitzsiimmons engaged in a series of

ethical violations requiring his removal from the case.

Prior to any ruling by the trial court on Bikanni's

purported motion to disqualify attorney I itzsimmons, he

filed a second motion to disqualify and a motion to

"disbar" a couple of months later, accusing Fitzsimmons of

numerous wrongdoings, including falsifying pleadings and

engaging in fraud.

On May 10, 2006, the trial court dismissed all

claims except the state-law emplcyment claims. In

dismissing the other claims, the court specifically

recognized that Bikkani's purported RICO and federal

employment-related claims were time-barred. It further

recognized that Bikkani failed to plead his fraud and

RICO claims with particulavity. Finally, the court

dismissed Bikkani's purported shareholder derivative

action because Bikkani, who was not a shareholder,

lacked standing. The court also dismissed Bikkani's

33a

purported motions to disqualify/disbar attorney

Fitzsimmons.

Shortly thereafter, NEON and THCP moved for

sanctions under R.C.2323.51 and Civ.R. 11, seeking to

recover the attorney fees, costs, and expenses incurred by

them successfully defending the dismissed claims and the

motions to disqualify attorney Fitzsimmons. In support of

their motion, they attached an expert report, verifying the

reasonableness of their fees. Bikkani never opposed the

motion. Instead, Bikkani file an amended complaint,

without leave of court, purporting to name attorney

Fitzsimnmons as a new party defendant, which the trial

court ultimately struck.

Thereafter, NEON and THCP attempted to obtain

discovery from Bikkani to defend against the remaining

state-law discrimination claims. But Bikkani failed to

respond to the discovery requests. In June 2006, NEON

and THCY? moved the trial court to compel Bikkani to

comply with the discovery requests. While the motion was

pending, Bikkani filed his third motion to disqualify

attorney Fitzsimmons, along with a request that the trial

court "disbar" him.

On July 11, 2006, the trial court ordered Bikkani to

provide the discovery responses, including signed

authorizations to release medical records, and

notified him that his failure to comply could result in

sanctions. After the court imposed

deadline for the discovery responses passed, NEON and

THCP moved to dismiss the complaint due to Bikkani's

failure to comply.

On July 25, 2006, the trial court denied Bikanni's

third motion to disqualify attorney Fitzsimmons and his

request tu have him disbarred, which Bikkani

unsuccessfully appealed’. (On August 24, 2006, Bikanni,

pro se, filed a notice of appeal, challenging the trial

court's denial of his third motion to disqualify/disbar

34a

attorney Fitzsimmons. This court dismissed the appeal

sua sponte for lack of a final appealable order. See

Bihanni v. Lee, 8th Dist. No. 88650, Judgment Entry

dated Sept. 26, 2006. Bikanni subsequently moved this

court to reconsider, which we denied. Notably, this court

awarded NEON and THCP sanctions and ordered

Bikanni to cover, in part, their attorney fees incurred in

defending the frivolous appeal. Id., Judgment Entry dated

Cct. 16, 2006. Bikanni appealed this court's order to the

Ohio Supreme Court, which dismissed his appeal,

awarded sanctions, and ultimately declared Bikanni to be

a vexatious litigator. See Bikani v. Lee, Ohio Supreme

Court Case No. 2006-2073, Judgment Entry datea Feb.

28, 2007.)

Shortly thereafter, NEON and THCP moved to

dismiss the complaint again after Bikkani failed to appear

a second time for his noticed deposition.

On August 17,2006, the trial court denied the

motions to dismiss and gave Bikanni a second opportunity

to comply with the discovery requests. But because

Bikanni ignored the court's earlier order to provide

executed medical-records authorizations, the court barred

Bikanni from presenting any evidence at trial of medical

and psychological damages. The trial court further

warned that Bikanni's failure to respond to the discovery

requests (after having already been granted numerous

extensions) could result in dismissal of the case.

Bikanni ignored the August 17 order and failed to

provide responses to NEON's and THCP's discovery

requests. Consequently, NEON and THCP moved to

dismiss the case for the fourth time. Bikanni

subsequently filed his fourth motion in the trial court to

disqualify attorney Fitzsimmons and again asked that

Fitzsimmons be disbarred. On October 3, 2006, the trial

court dismissed Bikanni's complaint as to all defendants

35a

and cenied his fourth motion to disqualify/disbar attorney

Fitzsimmons.

Within thirty days of the final judgment, NEON

and THCP filed a supplemental motion for sanctions,

seeking to recover the attorneys' fees, costs, and expenses

incurred in defending Bikanni's frivolous claims, motions,

and arguments. The trial court, without holding a

hearing, denied the motion. From that order, NEON and

THCP appeal, raising the following assignment of error:

"{1] The trial court erred as a matter of law and to

the substantial prejudice of defendants-appellants

NorthEast Ohio Neighborhood Health Services, Inc. and

Total Health Care Plan, Inc. by denying their Motion for

Sanctions and Supplemental Motion for Sanctions,

pursuant to R.C. 2323.51 and Ohio R. Civ. P. 11."

Civ.R. ll and R. C. 2323.51

NEON and THCP argue in their sole assignment of

error that the trial court erred in denying their motions

for sanctions under R.C. 2323.51, Ohio's frivolous conduct

statute, and Civ.R. 11. They argue that Bikanni engaged

in frivolous conduct and willful violations of Civ.R. 11

throughout the litigation, forcing them to unnecessarily

incur attorney fees and other related expenses, and

thereby warranting the granting of their motions.

Ohio law provides two separate mechanisms for an

aggrieved party to recover attorncy fees for frivolous

conduct: R.C. 2323.51 and Civ. R. 11. Sigmon

vu. Southwest Gen. Health Ctr., 8th Dist. No. 88276, 2007-

Ohio-2117, 14.

Although both authorize the award of attorney fees

as a sanction for frivolous conduct, they have separate

standards of proof and differ in application. Id.

Civ.R. 11 governs the signing of pleadings, motions,

and other documents and provides in pertinent part that:

“The signature of an attorney or pro se party constitutes a

certificate by the attorney or party that the attorney or party has

read the document; that to the best of the attorney's or party's

36a

knowledge, information, and belief there is good ground to support

it; and that it is not interposed for delay. If a document is not

signed or is signed with intent to defeat the purpose of this rule, it

may be stricken as sham and false and the action may proceed as

though the document had not been served. For a willful violation

of this rule, an attorney or pro se party, upon motion of a party or

upon the court's own motion, may be subjected to appropriate

action, including an award to the opposing party of expenses and

reasonable attorney fees incurred tn bringing any motion under this

rule. Similar action may be taken if scandalous or

indecent matter is inserted."

In determining whether a pro se party's conduct

violates Civ.R. 11, the trial court should consider whether

the party signing the document: 1) has read the

document, 2) harbors good grounds to support the

document to the best of the person's knowledge,

information, and belief, and (3) did not file the document

for purposes of delay. Mitchell v. Western Reserve Area

Agency on Aging, 8'» Dist. Nos. 83837 and 83877, 2004-

Ohio-4353, J 18. If the pro se party fails to mect one of

these requirements and the failure was willful, as opposed

to merely negligent, the person may be subject to

sanctions, including an award of reasonable attorney fees

and expenses incurred by the opposing party bringing

any motion under Civ.R. 11. Id. In deciding whether a

violation was willful, the trial court must apply a

subjective bad faith standard. Riston v. Butler,

Ohio App.3d 390, 2002-Ohio-2308, § 12.

R.C. 2323.51, conversely, applies an objective

standard in determining frivolous conduct, as opposed to

a subjective one. State Farm Ins. Co. v. Peda,

11th Dist. No. 2004-L-082, 2005-Ohio-3405. The finding of

frivolous conduct under R. C. 2323.51 is determined

without reference to what the individual knew

or believed. Ceol v. Zion Indus., Inc. (1992), 81 Ohio

App.3d 286, 289.

37a

"Frivolous conduct" is defined under the statute as

conduct that satisfies any of the following:

"(i) It obviously serves merely to harass or

maliciously injure another party to the civil action or

appeal or is for another improper purpose, including, but

not limited to, causing unnecessary delay or a needless

increzse in the cost of litigation.

"(ii) It is not warranted under existing law, cannot

be supported by a good faith argument for an extension,

modification, or reversal of existing law, or cannot be

supported by a good faith argument for the establishment

of new law.

'(iii) The conduct consists of allegations or other

factual contentions that have no evidentiary support or, if

specifically so identified, are not likely to have evidentiary

support after a reasonable opportunity for further

investigation or discovery.

"(iv) The conduct consists of denials or factual

contentions that are not warranted by the evidence or, if

specifically so identified, are not reasonably based on a

lack of information or belief.” R.C. 2323.51(A)(2)(a)(i)-(iv).

A trial court's finding of frivolous conduct alone,

however, is insufficient to support an award of attorney

fees under the statute. The trial court must also

determine whether the frivolous conduct adversely

affected the party moving for attorney fees. Sto/idmann v.

Hall, 15% Ohio App.3d 499, 2004-Ohio-5219, 98. "Where a

determination has been made that * * * a certain claim or

claims, or a defense or defenses asserted in a civil action

were frivolous, the party seeking R.C. 2323.51 attorney's

fees must affirmatively demonstrate that he or she

incurred additional attorney's fees as a dire-*, identifiable

result of defending the frivolous conduct in particular."

Id., quoting Wit/berger v. Davis (1996), 110 Ohio

App.3d 46, 54.

38a

Notably, both R.C. 2323.51 and Civ.R. 11 allow for

the imposition of sanctions against a pro se litigant. See

Burrell v. Kassicieh (1998), 128 Ohio App.3d 226. Under

Ohio law, pro se litigants are held to the same standard

as all other litigants: they must comply with the rules of

procedure and must accept the consequences of their own

mistakes. Kilroy v. B.H. Lakeshore Co. (1996), 111 Ohio

App.3d 357, 363. The mere fact that a party 1s pro se does

not shield the party from the imposition of sanctions when

the party engages in frivolous conduct. Burrell, supra.

Indeed, a court's refusal to hold a pro se litigaint to the

same standard as an attorney who engages in frivolous

and egregious conduct would only defeat the purpose of

R.C. 2323.51 and Civ.R. 11: to deter vexatious and

harassing litigation. See, generally, Sha/fer v. Mease

(1991), 66 Ohio App.3d 400, 406. And although R.C.

2323.51, which is broader in scope than Civ.R. 11, should

be applied carefully so that legitimate claims are not

chilled, and parties are not punished for mere

misjudgment or tactical error, trial courts nevertheless

"must have the courage to further the goals of the statute"

and impose sanctions whenever appropriate. Ceol, supra

at 292 (internal quotations omitted); see, also, Beaver

Excavating Co. v. Perry Twp. (1992), 79 Ohio App.3d

OO309NTurowski v. Johnson (1991), 70 Ohio App.3d 118.

The decision to grant sanctions under R.C, 2323.51 and

Civ.R. 11 rests with the sound discretion of the trial court.

Taylor v. Franklin Bivd. Nursing Home, Inc. (1996), 112

Ohio App.3d 27. A reviewing court will not reverse a trial

court's decision to deny or grant sanctions absent an

abuse of discretion. Id.; Jur ck v. Jackim, 8th Dist. No.

89997, 2008-Ohio0-2346.

Although ordinarily a trial court does not have to

hold a hearing if it denies a motion for attorney fees and

costs under R.C. 2323.51 or Civ.R. 11, Ohio courts have

recognized that a trial court abuses its discretion when it

39a

“arbitrarily” denies a request for attorney fees. Turowski

v. Johnson Ohio App.3d 704; Mitchell v. Western Reserve

Area Agency on Aging, 8th Dist.Nos. 83837 and 83877,

2004-Ohio-4353, 427. Compare Pisani v. Pisani (1995),

101 Ohio App.3d 83 (recognizing that a hearing is not

required when the court determines, upor consideration

of the motion and in its discretion, that the motion lacks

merit). An arbitrary denial occurs when (1) the record

clearly evidences frivolous conduct and (2) the trial court

nonetheless denies a motion for attorney fees without

holding a hearing. Id. Similarly, if an arguable basis

exists for an award of sanctions under Civ.R. 11, a trial

court roust hold a hearing on the motion. Fitworks

Holdings, L.L.C. v. Pitchford-El, 8th Dist. No. 88364,

2007-Ohio-2517, 114, citing Capps v. Milhem, 2nd Dist.

No. O3AP-251, 2003-Ohio0-5212.

Here, the trial court never held a hearing on

NEON's and THCP's requests for attorney fees and custs

under R.C. 2323.51 and Civ.R. 11, despite the

overwhelming evidence of egregious conduct throughout

the litigation. The record clearly evidences frivolous

conduct as well as an arguable basis to impose

sanctions under Civ.R. 11.

In their motions, NEON and THCP presented

ample evidence of Bikanni's refusal to dismiss claims that

he knew or should have known were time-barred.

Indeed, NEON and THCP notified Bikanni by letter

immediately after the filing of his complaint. And even

after NEON and THC? filed their motions to

dismiss, Bikanni refused to dismiss the time-barred

claims. Bikanni also should have known that he lacked

standing, as recognized by the trial court, to bring a

shareholder derivative action when he was never a

shareholder

40a

The record further reveals that Bikanni filed four

motions to disqualify appellees’ counsel, three of which

also sought to disbar attorney Fitzsimmons.

Apart from the fact that the trial court has no jurisdiction

to disbar appellees’ counsel and that Bikanni failed to

provide any credible evidence or sound legal argument in

support of his motions to disqualify, Bikanni filed the

same motion four separate times. Notably, Bikanni's

motions became more inflammatory and outrageous as

the litigation progressed, accusing Fitzsimmons of a

myriad of wrongdoings, including criminal conduct, fraud,

and deceit. And, astonishingly, Bikanni appealed the

denial of his third motion to disbar/disqualify to this court

and, after his appeal was dismissed, he further sought

review by the Ohio Supreme Court. Consequently, both

this court and the Ohio Supreme Court awarded attorney

fees to NEON and THCP for having to defend the

frivolous appeals. And the Ohio Supreme Court

subsequently deemed Bikanni a vexatious litigator.

Our review of the record further reveals that

Bikanni blatantly disregarded the civil rules of procedure

throughout the litigation, especially as they relate to

discovery. Bikanni failed to provide any discovery

responses despite court orders to do so. He twice failed to

appear for his deposition despite being duly notified. He

improperly sought to obtain privileged communications

from the law firm representing NEON and THCP and

improperly served subpoenas throughout the litigation.

Further, upon unsuccessfully moving to disqualify

attorney Fitzsimmons, Bikanni filed, without leave, an

amended complaint, naming Fitzsimmons as a defendant.

Bikanni's conduct not only delayed the proceedings but it

forced NEON and THCP to incur additional expenses by

having to respond to such misconduct.

Accordingly, we sustain the sole assignment in

part, finding that the trial court abused its discretion in

4la

denying NEON and THCP's motions for sanctions without

holding a hearing. To the extent that NEON and THCP

seek a determination as to each and every act that

entitles them to attorney fees under R.C. 2323.51 and

Civ.R.11,we decline to reach this issue without the trial

court first holding an evidentiary hearing. We further

express no opinion as to whether the attorney fees sought

are necessary or reasonable, a matter left to

the sound discretion of the trial court.

Judgment reversed and case remanded for an

evidentiary hearing and the trial court's reconsideration

of an award of attorney fees.

It is ordered that appellants recover from appellee

costs herein taxed.

The court finds there were reasonable grounds for

this appeal.

jt is ordered that a special mandate be sent to said

court to carry this judgment into execution.

A certified copy of this entry shall constitute the

mandate pursuant to Rule 27 of the Rules of Appellate

Procedure.

MARY J. BOYLE, JUDGE

JAMES J. SWEENEY, A.J., and

CHRISTINE T. MCMONAGLE, J., CONCUR

Note: In the judgment at times Bikkani was spelled

as Bikanni and maintained same in reproducing

the entry.

42a APPENDIX R

Court of Appeals Of Ohio

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

DOCKET ENTRY

CA No. 06-088650

PRASAD BIKKANI

PLAINTIFF-AP?PELLANT

vs.

ROTAN E. LEE, ET AL.

DEFENDANTS-APPELLEES

Civil Appeal from the

Cuyahoga County Court of Common Pleas

Case No. CV-566249

Case Number: CA-06-088650

Case Title: PRASAD BIKKANI vs. ROTAN

LEE, ET AL.

Date Description

04/17/ N/A M APPELLEES NORTHEAST OHIO

2007 O NEIGHBORHOOD HEALTH

SERVICES, INC. AND TOTAL HEALTH

CARE PLAN, INC.'S NOTICE OF

SATISFACTION OF JUDGMENT AND

RELEASE OF LIEN

04/12/ N/A JE SUPREME COURT OF OHIO

2007 SUPREME COURT NO. 06-2302. UPON

CONSIDERATION OF THE

JURISDICTIONAL MEMORANDA

FILED IN THIS CASE, THE COURT

DECLINES JURISD. TO HEAR THE

CASE & DISMISSES THE APPEAL AS

NOT INVOLVING ANY SUBSTANTIAL

CONSTITUTIONAL QUESTION. UPON

CONSIDERATION OF THE MOTION

TO REMOVE MATTHEW T.

FITZSIMMONS, ESQ., AS A

Sid Ty

e e

93/1e€/ N/A JE

2007

43a

PERSONALLY NAMED DEFENDANT:

APPELLEE, IT IS ORDERED BY THE

COURT THAT THE MOTION BE

GRANTED. VOL. 633 PG. 510. NOTICE

ISSUED.

SUPREME COURT OF OHIO

SUPREME COURT NO. 06-2073. UPON

CONSIDERATION OF THE

JURISDICTIONAL MEMORANDA

FILED IN THIS CASE, THE COURT

DECLINES JURISD. TO HEAR THE

CASE & DISMISSES THE APPEAL AS

NOT INVOLVING ANY SUBSTANTIAL

CONSTITUTIONAL QUEST. UPON

CONSIDERATION OF THE MOTION

OF MATTHEW T. FITZSIMMONS,

ESQ., TO REMOVE HIMSELF AS A

PERSONALLY NAMED DEFENDANT-

APPELLEE, THE MOTION OF

NORTHEAST OHIO NEIGHBORHOOD

HEALTH SERVICES, INC., ET AL., TO

STRIKE MEMO OPPOSING THE

MOTION TO REMOVE MATTHEW

FITZSIMMMONS AS A PERSONALLY

NAMED DEFENDANT-APPELLEEF,

AND APPELLEES' MOTIONS TO

HAVE PRO-SE APPELLANT

CLASSIFIED AS A VEXATIOUS

LITIGATOR AND FOR SANCTIONS

FOR FRIVOLOUS ACTION, IT IS

ORDERED BY THE COURT THAT THE

MOTION TO REMOVE MATTHEW T.

FITZSIMMONS AS A PERSONALLY

NAMED DEFENDANT-APPELLEE

AND THE MOTION OF NORTHEAST

44a

OHIO NEIGHBORHOOD HEALTH

SERVICES, INC., ET AL., TO STRIKE

MEMO OPPOSING THE MOTION TO

REMOVE MATTHEW T.

FITZSIMMONS AS A PERSONALLY

NAMED DEFENDANT-APPELLEE

ARE GRANTED, AND THE MOTIONS

TO CLASSIFY THE APPELLANT AS A

VEXATIOUS LITIGATOR AND FOR

SANCTIONS FOR FRIVOLOUS

ACTION ARE GRANTED. VOL. 631 PG.

666. NOTICE ISSUED.

12/21/ N/A JE MOTION BY APPELLEES,

2006 NORTHEAST OHIO NEIGHBORHOOD

HEALTH SERVICES, INC. AND TOTAL

HEALTH CARE PLAN, INC., TO

STRIKE APPELLANT'S DECEMBER 5,

2006 FILING IS DENIED AS MOOT.

VOL. 626 PG. 650. NOTICE ISSUED.

12/18/ N/A EV OHIO SUPREME COURT CASE NO.

2006 06-2302 - NOTICE OF APPEAL TO THE

SUPREME COURT OF OHIO WITH

MEMORANDUM IN SUPPORT OF

JURISDICTION FILED BY

APPELLANT, PRO SE, IN THE OSC

ON DECEMBER 14, 2006

12/13/ N/A JE MOTION BY APPELLANT, PRO SE, TO

2006 RECONSIDER SANCTIONS/FEES IS

DENIED. VOL. 626 PG. 13. NOTICE

ISSUED.

12/12/ N/A M MOTION BY APPELLEES,

2006 O NORTHEAST OHIO NEIGHBORHOOD

HEALTH SERVICES, INC. AND TOTAL

HEALTH CARE PLAN, INC., TO

STRIKE APPELLANT'S DECEMBER 5,

2006 FILING

12/12/ N/A M

2006 O

12/05/ N/A M

2006 O

11/15/ N/A EV

2006

10/30/ N/A JE

2006

10/30/ N/A JE

2006

45a

APPELLEES', NORTHEAST OHIO

NEIGHBORHOOD HEALTH

SERVICES, INC. AND TOTAL HEALTH

CARE PLAN, INC., MEMORANDUM IN

OPPOSITION TO APPELLANT'S

DECEMBER 5, 2006 FILING

MOTION BY APPELLANT, PRO SE, TO

RECONSIDER SANCTIONS/FEES

OHIO SUPREME COURT CASE NO.

06-2073--NOTICE OF APPEAL TO THE

SUPREME COURT OF OHIO FILED

BY APPELLANT, PRO SE, IN THE OSC

ON NOVEMBER 9, 2006

MOTION BY APPELLANT, PRO SE, TO

STRIKE/DENY NEON/THCP'S,

OCTOBER 2, 2006 AND OCTOBER 6,

2006 FILINGS IS DENIED. MOTION

TO GRANT LEAVE TO FILE BRIEF IN

OPPOSITION IS GPANTED. VOL. 623

PG. 82. NOTICE ISSUED.

MOTION BY APPELLEES,

NORTHEAST OHIO NEIGHBORHOOD

HEALTH SERVICES, INC. AND TOTAL

HEALTH CARE PLAN, INC., FOR

SANCTIONS, INCLUDING

ATTORNEYS' FEES, COSTS AND

EXPENSES IS GRANTED IN PART.

PURSUANT TO APP.R. 23 AND UPON

REVIEW OF THE TRIAL COURT FILE

AND THE PLEADINGS FILED IN THIS

APPEAL, THE COURT DETERMINES

THAT THE APPEAL WAS

FRIVOLOUS. THE COURT ALSO

REVIEWED THE REQUESTED

ATTORNEY FEES AND COSTS

ASSOCIATED WITH APPELLEES'

10/24/ N/A M

2006 O

10/16/ N/A M

2006 O

10/06/ N/A M

2006 O

10/02/ N/A M

46a

PLEADINGS FILED IN RESPONSE TO

APPELLANT'S APPEAL AND ORDERS

APPELLANT PRASAD BIKKANI TO

PAY APPELLEE TOTAL HEALTH

CARE PLAN, INC. THE SUM OF

$1,360.00 AND APPELLEE

NORTHFAST OHIO NEIGHBORHOOD

HEALTH SERVICES, INC. THE SUM

OF $1,400.00 AS AND FOR

REASONALBE ATTORNEYS FEES

AND THE $12.00 IN COSTS

EXPFNDED IN THE APPEAL. VOL.

623 PG. 81. NOTICE ISSUED.

APPELLEE, NORTHEAST OHIO

NEIGHBORHOOD HEALTH

SERVICES, INC. & TOTAL HEALTH

CARE PLAN, INC.'S BRIEF IN

OPPOSITION TO APPELLANT'S

MOTION TO STRIKE/DENY

NEON/THCFP'S OCTOBER 2, 2006 AND

OCTOBER 6, 2006 FILINGS, OR

GRANT LEAVE TO FILE BRIEF IN

OPPOSITION

MOTION BY APPELLANT, PRO SE, TO

STRIKE/DENY NEON/THCP'S,

OCTOBER 2, 2006 AND OCTOBER 6,

2006 FILINGS OR GRANT LEAVE TO

FILE BRIEF IN OPPOSITION

MOTION BY APPELLEES,

NORTHEAST OHIO NEIGHBORHOOD

HEALTH SERVICES, INC. AND TOTAL

HEALTH CARE PLAN, INC., FOR

SANCTIONS, INCLUDING

ATTORNEYS' FEES, COSTS AND

EXPENSES

APPELLEE'S BRIEF IN OPPOSITION

2006

09/27/

2006

09/26/

2006

09/26/

2006

09/26/

2006

09/22/

2006

09/22/

2006

09/12/

2006

09/07/

2006

09/07/

2006

08/28/

2006

N/A JE

N/A BL

N/A JE

Al EV

N/A M

N/A SR

47a

TO APPELLANT'S MOTION FILED ON

SEPTEMBER 22, 2006

MOTION BY APPELLANT, PRO SE, TO

FILE BRIEF INSTANTER IS DENIED.

VOL, 621 PG. 36. NOTICE ISSUED.

September 26, 2006: SUA SPONTE,

APPEAL IS DISMISSED FOR LACK OF

A FINAL APPEALABLE ORDER. R.C.

2505.02. VOL. 621 PG. 4. NOTICE

ISSUED.

September 26, 2006: SUA SPONTE,

APPEAL IS DISMISSED FOR L“CK OF

A FINAL APPEALABLE ORDER. R.C.

2505.02. VOL. 621 PG. 4. NOTICE

ISSUED.

MOTION BY APPELLANT, PRO SE,

FOR RECONSIDERATION [IS DENIED.

VOL. 620 PG. 993. NOTICE ISSUED.

APPELLANT'S BRIEF FILED.

MOTION BY APPELLANT, PRO SE, TO

FILE BRIEF INSTANTER

APPELLEES', NORTHEAST OHIO

NEIGHBORHOOD HEALTH

SERVICES, INC. AND TOTAL HEALTH

CARE PLAN, INC., BRIEF IN

OPPOSITION TO APPELLANT'S

MOTION FOR RECONSIDERATION

APPELLANT'S RECONSIDERATION

BRIEF IN SUPPORT OF MOTION FOR

RECONSIDERATION

MOTION BY APPELLANT, PRO SE,

FOR RECONSIDERATION

ANNOUNCEMENTOF COURT'S

DECISION FILED (SEE APPELLATE

RULE 26). COPIES MAILED COST

08/25/

2006

08/25/

2006

08/24/

2006

08/24/

2006

08/24/

2006

08/24/

2006

08/24/

2006

08/24/

2006

08/24/

2006

08/24/

2006

48a

TAXED

N/A EV ORIGINAL PAPERS FILED BY TRIAL

COURT.

N/A NT RECORD ON APPEAL FILED AND

N/A SF

NOTICE ISSUED TO ALL PARTIES.

NOTICE OF APPEAL FILED FROM

COMMON PLEAS, CIVIL DIVISION

COURT , CASE # CV-566249 WITH

JOURNAL ENTRIES, PRAECIPE,

DOCKETING STATEMENT, AND

COPY OF DOCKET SHEET.

LEGAL RESEARCH

LEGAL NEWS

COMPUTER FEE

CLERK'S FEE

COURT OF APPEALS SPECIAL

PROJECTS

DEPOSIT AMOUNT PAID PRASAD

BIKKANI

CASE INITIATED

49a APPENDIX S

FILED (by um Capital Receiver and Creditors)

2009 Jan 06 PM 07:50 as Exhibit B

CLERK U.S. BANKRUPTCY COURT

NORTHERN DISTRICT OF OHIO CLEVELAND

In re. J.M. CAPITAL, LTD. (Bank. NE Dist of Ohio, Case

No. 08-20123)

December 29, 2008

Mark Hanslik, Trustee

Miles Landing Homeowners Association

RE: Termination of Keith J. Barton

Mark:

I understand there may be some concern/controversy

about the transition of responsibilities after my

termination as General Counsel for the Miles Landing

Homeowners Association. I hope this letter will clarify

any confusion.

Fnday December 19, 2008 the board of trustees for the Miles

Landing Homeowners Association met after an emergency board

meeting was requested by Mariou Mauldin. Bylaws Article VI,

Section 2 states as follows:

“Special meetings of the Board of Trustees shall be

held when called by the president of the

Association, or by any two Trustees, after less than

(3) days notice to each director.”

Marion Mauldin requested the meeting with not less than

3 days notice but the meeting was not called by the

president, nor was it called by two Trustees as required

by the Bylaws. The meeting went forward anyway.

50a

At this meeting, the board discussed terminating Keith

Barton as General Counsel for the association. John

MacDonald, president of the association, tabled the

discussion until Friday December 26, 2008. John

MacDonald also requested a proposal/plan with regards to

improving the financial situation of the association, I

communicated to the board that I needed access to the

office and its resources to produce this report. I also

communicated to the board that even if my termination

were effective immediately, I would need the resources of

the office to severe my official ties to the association (e.g.,

drafting and filing motions to withdraw as legal counsel —

courts must approve termination of the attorney client

relationship for any existing cases, preparation and filing

of my resignation as statutory agent for the association;

etc....)

I came to the office Monday morning to work on the tasks

I needed to complete. The lock had been changed and I

was unable to gain entrance to the office. I worked from

another location starting the task of drafting motions to

withdraw as counsel for the association. Another

emergency meeting of the board of trustees was called for

the morning of Tuesday December 23, 2008. I was

allowed access to retrieve my belongings from the office.

I was granted a very limited time to my belongings from

the office. As part of this cleanup | removed electronic

files from the office computer and paper files from the

office. ‘These electronic files included information related

to my representation (with association knowledge and

approval) of John MacDonald, J. M. Capital, Ltd, Mark

Hanslik, and Hanslik Properties in various matters.

Paper files removed included information related to the

representation of John MacDonald, J. M. Capital, Ltd,

Mark Hanslik, and Hanslik Properties in various matters.

5la

I also, in my haste, removed electronic copies of files I

prepared while representing the association.

Paper files for all association lawsuits in progress since

November 2005 (to include those files provided by Kaman

& Cusimano); paper files containing all historical

financial information from Renner Management Group;

paper files containing any historical and/or current

financial information related to billing or vendors, etc...;

and, electronic files containing official financial records

(both current and historical from November 2005) of the

association remained in the physical possession of the

association at the association office. Al office productivity

software not licenses to the association (e.g. Microsoft

Word, Microsoft Excel, etc...) was removed from the

association computer, as they were my personal copies of

the software.

When I took over operation of the association from Renner

Management Group and from the law firm of Kaman &

Cusimano, the association received records in PAPER

FORMAT ONLY. In addition, lawsuit case files given to

the association were only those case files that were

currently in litigation as part of an OPEN AND

UNRESOLVED case. Closed case files were NOT

PROVIDED to the association. All financial information

provided by Renner Management Group was provided in

PAPER FORMAT ONLY. In addition, NO FINANCIAL

RECORDS were provided for those unit owners who were

current in the payment of their maintenance fees. In

other words, if Renner showed a unit owner owed no

money as of November 2005 — NO FINANCIAL

INFORMATION concerning that unit owner was

transferred to the association.

52a

As can be seen by the information above, I left the

association with more information than did the previous

legal counsel and the previous management company. In

an effort to ease the transition of the association's

operations, I am providing you with a DVD of the

electronic files produced during the time I represented the

association.

As is to be expected, there are probably several questions

regarding the status of various lawsuits and the status of

various financial or other operational matters.

Unfortunately, I was prevented from providing a smooth

transition of information and responsibilities by the

sudden termination by the board of trustees; and by the

board’s refusal to allow from winding down operations. |

am available (as consultant and for a fee) to answer any

transition questions the association may have on any

matter. Please feel free to contact me should you have

any questions regarding this matter.

Sincerely,

(Signed)

Keith J. Barton

I, Mark Hanslik, acknowledge receiving from Keith

Barton, a DVD containing electronic files related to the

operations of the Miles Landing Homeowners Association.

(Signed) 12/30/2008

Mark Hanslik Date

12/30/08

I received the amount listed below upon closing of the

Miles Landing Homeowners Association checking account

#715133799 with Chase bank.

Amount 228.30 — 91.03 = 137.28

(Signed)

MARK HANSLIK

53a APPENDIX T

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

In re: ) Case No. 08-20123

J.M. CAPITAL, LTD., ) Chapter 11

Debtor. ) Judge Pat E. Morgenstern-Clarren

) MEMORANDUM OF OPINION

Official court stamp January 15, 2009 (11:59 am)

The debtor J.M. Capital, Ltd. was operating under a state

court receivership when it filed this chapter 11 case.

Secured creditors CapFinancial IIJ, LLC and

CapFinancial Properties III, LLC move to dismiss, or

alternatively, for this court to abstain so that the receiver

may continue with his responsibilities, Docket 12. The

debtor opposes the motion, Docket 12. For the reasons

that follow, the motion to dismiss is granted.

1, JURISDICTION

Jurisdiction exists under 28 U.S.C. § 1334 and General

Order No. 84 entered by the United States District Court

for the Northern District cf Ohio. This is a-core proceeding

under 28 U.S.C. § 157(b)(2)(A) and (O).

At that time, the court also heard evidence. relating to the

state court receiver's motion to excuse turnover of

property to the debtor. (Docket 11). That motion is moot

in hght of the decision reached in this memorandum.

ll. THE POSITIONS OF THE PARTIES

CapFinancial ITI, LLC and CapFinancial Properties

III, LLC (collectively, CapFinancial) seek to dismiss thi.

case under 11 U.S.C. § 305(a) so that the state court

receiver, who has been in place for more than seven

months, may continue to administer the debtor's assets.

They contend that this is in their best interests because it

54a

is the most economical way to proceed. Alternatively,

CapFinancial argues that the case should be dismissed

under 11 U.S.C. § 1112(b), claiming that the debtor will

not be able to rehabilitate itself and the case was filed in

bad faith. Two other secured creditors, and the receiver,

support the motion.

The debtor argues that it filed the chapter 11 case

because it was dissatisfied with the receiver's efforts to

increase revenue and locate a buyer. The debtor contends

that the bankruptcy proceeding will permit it to increase

income, begin to pay the secured debt, and ultimately sell

its real estate for enough money to pay all debt.

III. FACTS

A. The Evidentiary Hearing

The court held an expedited evidentiary hearing on

the motion to dismiss on January 12, 2009 (There was

testimony at the hearing about actions taken by Keith

Barton, counsel to Mr. MacDonald personally and former

general counsel to the association. That evidence was

tangential to the issues presented here, and so is not

recounted).

CapFinancial presented its case through these

witnesses: Myron Muldur (from PrinsFinancial, the

managing member of CapFinancial), Robert Weltman

(representing Dennis Gehrisch), Michele Wickman (from

Park View Federal Savings Bank), Mark Dottore (state

court receiver); cross-examination of the debtor’s

witnesses; and documents. The debtor presented its case

through the testimony of John MacDonald (the debtor’s

sole member), John Deskins (a contractor who does work

on the debtor’s property), and Bernard Martin (the

debtor's leasing agent and property manager); cross-

examination of the movant’s witnesses; and documents.

These findings of fact are based on that evidence and

reflect the court’s weighing of the evidence presented,

55a

including determining the credibility of the witnesses. “In

doing so, the Court considered the witnesses’ demeanor,

the substance of the testimony, and the context in which

the statements were made, recognizing that a transcript

does not convey tone, attitude, body language or nuance of

expression.” Jn re The V Cos., 274 B.R. 721, 726 (Bankr.

N.D. Ohio 2002). See FED. R. BANKR. P. 7052

(incorporating FED. R. CIV. P. 52 and applicable in

contested matters under FED. R. BANKR. P. 9014). When

the court finds that a witness's explanation was

satisfactory or unsatisfactory, it is using this definition:

The word satisfactory may mean reasonable, or it

imay mean that the Court, after having heard the

excuse, the explanation, has that mental attitude

which finds contentment in saying that he believes

the explanation—he believes what the [witness]

say[s] with reference to the [issue at hand]. He is

satisfied. He no longer wonders. He is contented.

United States v. Trogdon (In re Trogdon), 111 B.R. 655,

659 (Bankr. N.D. Ohio 1990) (internal citations and

quotation marks omitted).

B. The Debtor’s Assets

The debtor’s only significant asset is a group of

townhouses in Warrensville Heights, Ohio in an area

known as Miles Landing. The entire Miles Landing area

consists of approximately 375 units built in the 1940s; of

those, the debtor currently owns 77 units. The debtor’s

units (the property) are scattered over 6-8 residential

streets. J.M. Capital purchased the property in 1999 with

financing obtained from The Peoples Banking Company,

as evidenced by promissory notes secured by mortgages

on the property. John MacDonald is a personal guarantor

on the notes.

The units were in disrepair when purchased and Mr.

MacDonald's plan was to renovate the units and sell

them, either individually or as a group. Although J.M.

56a

Capital invested about $3 million in the property, the

financial plan did not work out, in part—-as admitted by

‘Mr. MacDonald—due to his bad management. In 2005,

The Peoples Banking Company transferred the notes to

CapFinancial and assigned the mortgages to it as well, in

exchange for a payment that was not quantified at the

hearing. The notes were in default at the time, and Mr.

MacDonald’s business plan was to refinance the debt.

J.M. Capital sold some of the units after that, with

the last sale taking place in July 2007. Everyone involved

agrees that the real estate market has deteriorated and

potential buyers generally are not able to get financing to

purchase the units either individually or in bulk. When

CapFinancial purchased the notes, the units were selling

for about $80,000.00—-$95,000.00. Today, CapFinancial

estimates that cach unit might be worth in the range of

$20,000.00 in a bulk sale of the property. The auditor’s

market value averages about $15,000.00—$25,000.00 per

unit.

An association known as the Miles Landing

Homeowners Association exists to address issues of

common concern among the owners of units. J.M. Capital

owes the association about $600,000.00 in maintenance

fees’. (6There was testimony at the hearing about actions

taken by Keith Barton, counsel to Mr. MacDonald

personally and former general counsel to the association.

That evidence was tangential to the issues presented

here, and so is not recounted.)

J.M. Capital’s overall financial situation did not

improve. Although it made some payments on the debt, it

remained in default. CapFinancial called the notes in

June 2007.

C. The State Court Proceedings

On March 14, 2008, CapFinancial obtained a state

court judgment against the debtor in the principal

amount of $1,215,490.23 plus interest; the amount owed

57a

as of the hearing is about $1.4 million. CapFinancial then

filed a state court complaint to foreclose on the mortgages

that secured the notes (Case No. CV 08 659315, Cuyahoga

County Court of Common Pleas). The complaint named as

defendants other parties claiming an interest in the 6

property, including Park View Federal (secured debt of

about $830,600.00), Dennis Gehrisch (secured debt of

about $1.15 million), George Guider (secured debt of

about $125,000.00), and the Cuyahoga County Treasurer

(tax hens). CapFinancial also moved to appoint a receiver

to safeguard the property, given the failure to pay the

secured debt, the decline in the property's value, and the

failure to maintain insurance.

On May 20, 2008, J.M. Capital, John MacDonald,

CapFir.ancial, Dennis Gehrisch, and Park View Federal

enterec into an agreed order appointing Mark Dottore as

receiver for J.M. Capital. The order authorized the

receiver to operate the business, manage the property,

and market the property for sale or lease.

When the receiver took over, ne found that the real

estate taxes were in default, some utility bills were

unpaid, CapFinancial was paying for expensive force—

placed insurance, and there were life safety issues in a

few units. He negotiated a payment schedule for the taxes

(a process initiated by Mr. MacDonald), arranged to pay

the delinquent water and sewer bills, and—when funds

became available—used rental income to pay for

insurance. All of the rental income is being devoted to

renovation, maintenance, taxes, and utility payments,

with no funds currently available to pay the secured

creditors.

The monthly rent is $655.00 for a two bedroom unit

and $765 OO for a three bedroom unit. Of the 77 units

owned by the debtor, about 56 are rented; the remaining

units are vacant either because they need work or because

a tenant has not vet been found. Of the 56 occupied units,

58a

at least 22 tenants are in default of their rent obligations

for January 2009. In addition to trying to find renters, the

receiver has been looking for buyers for the property. This

poses many challenges: the units making up the property

are spread out over several streets (rather than being

physically consolidated), there are tssues with crime,

there are many competing units in the neighborhood, and

the lending environment is frozen. At the time of the

hearing, the receiver had two purchase offers, one for $1.8

million and another in the range of $2.1 to $2.5 million. In

the receiver's opinion, both potential buyers have access

to financing.

The receiver has filed short monthly reports with

the state court. He only put two of them into evidence;

each states broad categories of activity and lists expenses,

without invoices. The fees paid by the receiver to himself

are listed in one report as a total amount for the month,

without a breakdown of actor, time, and activity.

The secured creditors who testified believe that the

receiver has stabilized the situation and they are satisfied

with his performance. Although the property docs not yet

generate enough income to support making payments on

the secured debt, these creditors agreed that the priority

was to make necessary repairs first, with debt payments

following. They all ask that the bankruptcy case be

dismissed so that the receiver may remain in place.

Mr. MacDonald’s dissatisfaction with the receiver stems

from two issues: the amount of the receiver's monthly fees

(too high) and the amount of the purchase offers under

negotiation (too low).

D. The Bankruptcy Case

The debtor filed this chapter 11 case on December

24, 2008 to regain control of the property and market it

for a higher price. The filing had these omissions and

errors:

59a

(1) The debtor estimated that funds would be

available for distribution to unsecured creditors, yet the

assets are listed at 0O—$50,000.00 and the liabilities at $1

million to $10 million. Mr. MacDonald testified that he

did not think the asset value included the real property

value.

(2) The only creditor listed as holding an unsecured

claim is Gerri Burch, who Mr. MacDonald testified is not

actually a creditor. The debtor knew about, but did not

include, the Miles Landing Homeowners Association

claim of more than $600,000.00.

(3) The debtor did not list as secured creditors

CapFinancial, Park View Federal, or Dennis Gehrisch.

(4) The debtor did not give notice of the filing to the

receiver.

(5) The debtor did not file these documents with the

petition: disclosure statement, corporate ownership

statement, schedules A through H, statement of financial

affairs, and summary of schedules.

CapFinancial is not prepared to offer debtor-in-

possession financing, and there was no evidence that such

financing would be available from another source. The

debtor cid not file a motion to use cash collateral and did

not reach agreement with the secured creditors to do so.

Nevertheless, in the three weeks between the case filing

and the hearing, Mr. MacDonald either signed or

authorized the issuance of five checks om the debtor-in-

possession account, including one to pay his personal

child support payment.

Mr. MacDonald testified as to the components of

his intended chapter 11 plan:

(1) immediately rent the vacant units, thus

increasing the cash flow:

2) do a better job of collecting the rent on time;

(3) use the increased cash flow to pay some amount

to the secured creditors, starting in a few months;

60a

(4) hold the property until the broader financial

situation improves and credit is more readily avaiiable to

individuals and investors;

(5) at that point, sell the property either to

individuals buying a single unit or an investor buying the

property as a whole, at a price per unit of about

$47,000.00;

(6) pay all creditors in full with the sale proceeds; and

(7) retain some value for himself and his family.

IV. DISCUSSION

A. 11 U.S.C. § 305(a)

After notice and a hearing, a court may dismiss a

case or suspend all proceedings under 11 U.S.C. §

305(a)(1) when “the interests of creditors and the debtor

would be better served by such dismissal or suspension.”

11 U.S.C. § 305(a)(1). “The decision to dismiss or suspend

under 305(a) 1s discretionary and must be made on a case-

by-case basis.” Jn re Fortran Printing, Inc., 297 B.R. 89,

94 (Bankr. N.D. Ohio 2003) (citation omitted). The factors

used to determine whether dismissal or suspension is

appropriate include:

(1) economy and efficiency of administration;

(2) whether another forum 1s available to protect

the interests of both parties or there 1s already a pending:

proceeding in state court;

(3) whether federal proceedings are necessary to

reach a just and equitable solution;

(4) whether there is an alternative means of

achieving an equitable distribution of assets:

(5) whether the debtor and the creditors are able to

work out a less expensive out-of-court arrangement which

better serves all interests in the case;

(6) whether a non-federal insolvency has proceeded

so far in those proceedings that it would be costly and

time consuming to start afresh with the federal

bankruptcy process; and

bla

(7) the purpose for which bankruptcy jurisdiction

has been sought. ;

Id. at 94-95. Where a state court receivership is in place

before the bankruptcy case is filed, the best interests of

the debtor and its creditors are generally served by

dismissal. See, e.g., Monsour Medical Center, Inc. v. Stein

(In re Monsour Medical Center, Inc.), 154 B.R. 201, 207

(Bankr. W.D. Penn. 1993); In re M

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