Petition for Writ of Certiorari — Ayad v. Radio One One, Inc. (No. 08-3)

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MILED

No. 08-

IN THE SUPREME COURT

OF THE UNITED STATES

BRAHIM (ABE) AYAD AND MICHAEL TROY

(MIKE) WATSON Dba, “POLITICALLY

DAMNED” TALK RADIO

Petitioners,

Vv.

RADIO ONE, INC., et al.

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of the United States

PETITION FOR A WRIT OF CERTIORARI

BRAHIM (ABE) AYAD, Dba JOEL R. HLAVATY

“POLITICALLY DAMNED” FRANTZ WARD LLP

TALK RADIO 2500 KEY CENTER

4523 CAMILLIA LANE CLEVE., OHIO 44114

N. OLMSTED, OHIO 44070

(440) 724-6523 ATTORNEY FOR

DEFENDANT?

PLAINTIFF/APPELLANT APPELLEE

PRO SE

MICHAEL TROY (MIKE) - ADAM RUSS

WATSON, Dba FRANTZ WARD LLP

“POLITICALLY DAMNED” 2500 KEY CENTER

TALK RADIO CLEVE., OHIO 44114

1502 EAST 172°4 ST.

CLEVELAND, OHIO 44110 ATTORNEY FOR

(216) 322-4183 DEFENDANT/

APPELLEE

PLAINTIFF/APPELLANT

PRO SE

QUESTIONS PRESENTED

Summary Judgment

Whether the Fourteenth Amendment to the

United States Constitution guaranteeing equal

protection under the law including the laws and

precedent of the State of Ohio require the

Cuyahoga County, Ohio Court of Appeals and the

Eighth District Court of Appeals of Ohio and the

Supreme Court of Ohio to exercise the standard of

law as determined in Ohio on the issue of Summary

Judgment equally to Plaintiff, Brahim (Abe) Ayad a

Palestinian American Muslim and Michael Troy

Watson a Black American Student of Islam. The

Ohio Supreme Court, Eighth District Court of

Appeals and Cuyahoga County Court of Common

Pleas must use the same Standard of Summary

Judgment for all parties and not discriminate

against the Petitioners succumbing to the pressure

or influence of the Anti-Defamation League and/or

the Jewish Legal Community who were intent on

persecution of the Plaintiff/Appellant/Petitioners

for their religious and political beliefs.

Freedom of Speech

Whether the Fourteenth Amendment to

the United States Constitution guaranteeing equal

protection under the law including the laws and

precedent of the State of Ohio require the

Cuyahoga County, Ohio Court of Appeals

and the Eighth District Court of Appeals of Ohio

and the Supreme Court of Ohio to exercise the

standard of law as determined in Ohio on the issue

of Summary Judgment equally to Plaintiff, Brahim

(Abe) Ayad a Palestinian American Muslim and

Michael Troy Watson a Black American Student of

Islam. The Ohio Supreme Court, Eighth District

Court of Appeals and Cuyahoga County Court of

Common Pleas must use the same Standard of

Freedom of Speech for all parties and not

discriminate against the Petitioners succumbing to

the pressure or influence of the Anti-Defamation

League and/or the Jewish Legal Community who

were intent on persecution of the

Plaintiff/Appellant/Petitioners for their religious

and political beliefs.

Jurisdiction

Whether the Fourteenth Amendment to the

United States Constitution guaranteeing equal

protection under the law including the laws and

precedent of the State of Ohio require the

Cuyahoga County, Ohio Court of Appeals and the

Eighth District Court of Appeals of Ohio and the

Supreme Court of Ohio to exercise the standard of

law as determined in Ohio on the issue of Summary

Judgment equally to Plaintiff, Brahim (Abe) Ayad a

Palestinian American Muslim and Michael Troy

Watson a Black American Student of Islam. The

Ohio Supreme Court, Eighth District Court of

Appeals and Cuyahoga County Court of Common

Pleas must use the same Standard of

Jurisdiction of the Eighth District Court of

Appeals when no Final Order was issued or

otherwise when the language of “no just reason for

delay” pursuant to Rule 54(B) was not included, for

all parties and not discriminate against the

Petitioners succumbing to the pressure or influence

of the Anti-Defamation League and/or the Jewish

Legal Community who were intent on persecution

of the Plaintiff/Appellant/Petitioners for their

religious and political beliefs.

Contract

Whether the Fourteenth Amendment to the

United States Constitution guaranteeing equal

protection under the law including the laws and

precedents of the State of Ohio require the

Cuyahoga County Court of Common Pleas, the

Eighth District Court of Appeals of Ohio and the

Supreme Court of Ohio to exercise the Standard of

Law as determined in Ohio on the issue of

Summary Judgment equally to Plaintiff, Brahim

(Abe) Ayad a Palestinian American Muslim and

Michael Troy Watson a Black American Student of

Islam. The Ohio Supreme Court, Eighth District

Court of Appeals and Cuyahoga County Court of

Common Pleas must use the same Standard of

_ Enforcement of Contract Law to all parties and

not discriminate against the Petitioners

succumbing to the pressure or infiuence of the Anti-

Defamation League and/or the Jewish Legal

Community who were intent on persecution of the

Plaintiff/Appellant/Petitioners for their religious

and political beliefs.

PARTIES TO PROCEEDINGS

The parties Plaintiff, Brahim (Abe) Ayad is a (42)

Forty-Two year old Palestinian American Businessman

and Political Activist. He is one of the Hosts of

“Politically Damned” Talk Radio that began in

Cleveland, Ohio on Defendant Radio One Inc. Station

WERE 1300 AM on September 5, 2003 as a (1) one hour

per week program on Friday evenings. This was a Time

Broker (paid) Program. It quickly became a highly

rated controversial program as Brahim (Abe) Ayad

related his experiences growing up in Israel (Palestine)

and the theft of Millions of Dollars of his property that

was confiscated by the State of Israel.

Co-Plaintiff, Michael Troy (Mike) Watson had

been a practicing Attorney since 1983 in Cleveland,

Ohio after he graduated from Cleveland Marshall

College of Law, and Harvard Law School (P.I.L.). He

began his practice with his License to practice law in

the State of Ohio, the Federal Court system,

Washington District of Columbia. His background

included multiple nominations by the Governor of the

State of Ohio for an appointment to a Judicial Position

both the Cleveland Heights Municipal Court and the

Cuyahoga County Court of Common Pleas.

After being retained and representing Brahim

(Abe) Ayad in the case of Ayad, et al. vs. ADL, et al.

Judge Timothy McGinty Case No.: 02-464932 Cuyahoga

County Court of Common Pleas, he was attacked

professionally by the Jewish Legal Community for

representing Abe Ayad. To be more specific, it was the

Cuyahoga County (Jewish) Bar Association who

prosecuted him for a Grievance that had been examined,

investigated and totally exonerated by the Cleveland

Bar Association!!! This was unheard of as this was

something that hss NEVER HAPPENED BEFORE IN

THE HISTORY OF THE SUPREME COURT OF

OHIO. He was prosecuted by Attorneys Goodman,

Fishman, Murnan, Brown and Berger after being

accused of Anti-Semitism before the Disciplinary Panel

of the Supreme Court of Ohio resulting in his

disbarment in (3) Three Panel Hearings, each Panel of

which, contained either a Chairman or (2) Two

Members of the Jewish Legal Community. Watson was

the Co-Host of the Radio Program “Politically Damned”

Talk Radio and participated in its growth, ratings and

progress from a (1) hour Friday evening program to a

daily program proposed for National Syndication and

Satellite Broadcast.

Defendant, Radio One, Inc., is the Owner of

hundreds of Radio Stations throughout the United

States and Internationally and was Licensed by the

FCC and offered Time Brokered Radio Programs to the

General Public (except Plaintiffs).

Abe Foxman, National Chairman of the Anti-

Defamation League entered into this litigation through

the Regional Director of the Anti-Defamation League,

Attorney Bettysue Feuer and demanded that

Defendant, Radio One, Inc. remove the Plaintiffs’

program from Broadcast as he claimed it was “the worst

Anti-Semitism that he had ever heard”. Abe Foxman

was not a personally named party and his involvement

was discovered less than (30) Thirty days prior to the

Trial as the Defendants had deliberately delayed and/or

interfered with the normal Discovery Process until

approximately (30) Thirty days prior to Trial. The ADL

entered an appearance into this litigation on 3-13-06

demanding that Judge Coyne confiscate all Deposition

transcripts, Video Tape and Transcript Exhibits of

Regional Director of the ADL Bettysue Feuer and have

them “destroyed”. WITHIN DAYS OF THE ADL’S 3-

13-06 ENTRY INTO THE LITIGATION ACCUSING

THEM OF ANTI-SEMITISM , ON 3-17-06,

SUMMARY JUDGMENT WAS GRANTED AGAINST

THE PLAINTIFFS OVERRULING THE TRIAL

COURT’S OWN PRIOR (2) TWO DECISIONS TO

THE CONTRARY!!!!

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED.. aa |

PARTIES TO THE PROCEEDINGS ...... iv

TABLE OF CONTENTG...............-.:ccccseesoeees vii

TABLE OF AUTHORITIEG.......................020-

<assgsneenenenintithianibintieiMatenenens xvi, xvii, xvii

DECISIONS BELOW...................eesccccsssceseeceees 1

JURISDICTION................ : enebitidiianininuicens 2

REASONS FOR GRANTING THE

FE NN sin scisninusicioniicanibaininabaaidiniaeibiaapaibels 8

I

The Fourteenth Amendment to the United

States Constitution guaranteeing equal protection

under the law including the laws and precedent of

the State of Ohio require the Cuyahoga County,

Ohio Court of Appeals and the Eighth District

Court of Appeals of Ohio and the Supreme Court of

Ohio to exercise the standard of law as determined

in Ohio on the issue of Summary Judgment equally

to Plaintiff, Brahim (Abe) Ayad a Palestinian

American Muslim and Michael Troy Watson a

Black American Student of Islam. The Ohio

Supreme Court, Eighth District Court of Appeals

and Cuyahoga County Court of Common Pleas

must use the same Standard of Summary

Judgment for all parties and not discriminate

against the Petitioners succumbing to the pressure

or influence of the Anti-Defamation League and/or

the Jewish Legal Community who were intent on

persecution of the Plaintiff/Appellant/Petitioners

for their religious and political

vill

II.

The Fourteenth Amendment to the United

States Constitution guaranteeing equal protection

under the law including the laws and precedent of

the State of Ohio require the Cuyahoga County,

Ohio Court of Appeals and the Eighth District

Court of Appeals of Ohio and the Supreme Court of

Ohio to exercise the standard of law as determined

in Ohio on the issue of Summary Judgment equally

to Plaintiff, Brahim (Abe) Ayad a Palestinian

American Muslim and Michael Troy Watson a

Black American Student of Islam. The Ohio

Supreme Court, Eighth District Court of Appeals

and Cuyahoga County Court of Common Pleas

must use the same Standard of Freedom of

Speech for all parties and not discriminate against

the Petitioners succumbing to the pressure or

influence of the Anti-Defamation League and/or the

Jewish Legal Community who were intent on

persecution of the Plaintiff/Appellant/Petitioners

for their religious and political

iis dec sasdatiek Gactacleba adieicr stan ueaeieee 19

iil.

The Fourteenth Amendment to the United

States Constitution guaranteeing equal protection

under the law including the laws and precedent of

the State of Ohio require the Cuyahoga County,

Ohio Court of Appeals and the Eighth District

Court of Appeals of Ohio and the Supreme Court of

Ohio to exercise the standard of law as determined

in Ohio on the issue of Summary Judgment equally

to Plaintiff, Brahim (Abe) Ayad a Palestinian

American Muslim and Michael Troy Watson a

Black American Student of Islam. The Ohio

Supreme Court, Eighth District Court of Appeals

and Cuyahoga County Court of Common Pleas

must use the same Standard of Jurisdiction of

the Eighth District Court of Appeals when no Final

Order was issued or otherwise when the language

of “no just reason for delay” pursuant to Rule 54(B)

was not included, for all parties and not

discriminate against the Petitioners succumbing to

the pressure or influence of the Anti-Defamation

League and/or the Jewish Legal Community who

were intent on persecution of the

Plaintiff/Appellant/Petitioners for their religious

and political beliefs................cccccscecsses 21

IV.

The Fourteenth Amendment to the United

States Constitution guaranteeing equal protection

under the law including the laws and precedents of

the State of Ohio require the Cuyahoga County

Court of Common Pleas, the Eighth District Court

of Appeals of Ohio and the Supreme Court of Ohio

to exercise the Standard of Law as determined in

Ohio on the issue of Summary Judgment equally to

Plaintiff, Brahim (Abe) Ayad a Palestinian

American Muslim and Michael Troy Watson a

Black American Student of Islam. The Ohio

Supreme Court, Eighth District Court of Appeals

and Cuyahoga County Court of Common Pleas

must use the same Standard of Enforcement of

Contract Law to all parties and not discriminate

against the Petitioners succumbing to the pressure

or influence of the Anti-Defamation League and/or

the Jewish Legal Community who were intent on

persecution of the Plaintiff/Appellant/Petitioners

for their religious and political

i ca cana auduieb unsure 25

Se ET iicnrnanntcsnesntesnanncorimnicesnnerennind 57

xi

APPENDICES AND EXHIBITS

COURT OF COMMON PLEAS CUYAHOGA

COUNTY AYAD ET.AL. v. RADIO ONE INC.

CASE NO. 04-542565

DECISION OF JUDGE WILLIAM J. COYNE

RG icons ctnsccancensvbepentnessanivigpusawes A

(The Court) However, I do believe that

the issues of whether the Contract at all

was breached be it oral or written is a

question of fact for a Jury...

TRO Transcript Hearing P. 34 L. 17-20

Judge William J. Coyne 9/14/04.

COURT OF COMMON PLEAS CUYAHOGA

COUNTY DECISION OF JUDGE WILLIAM J.

Ce Fak bic cnkiciierencesttnssvca severe B

“Defendants Motion for Judgment on the

Pleadings is granted in part and denied in

part. Plaintiffs claim for breach of Contract

is the only claim that survives Defendant’s

Motion for Judgment on the Pleadings...Case

may proceed against Radio One, Inc. only and

under the Breach of Contract claim only.

11/28/05

xii

**3/13/06**Bettysue Feuer Anti-Defamation

League (Jewish Influence) makes an appearance in

this case in a Motion for Protective Order. ADL

ACCUSES PLAINTIFFS OF ANTI-SEMETISM

IN PLEADINGS TO JUDGE COYNE......

**3/17/06** Plaintiffs Motion for

Summary Judgment denied Defendants

Motion for Summary Judgment granted. The

Court having considered all the evidence and

having construed the evidence most strongly

in favor of the non-moving party determine

that reasonable minds can come to but one

conclusion, that there are no genuine issues

of material fact, and the Defendant Radio One

is entitled to Judgment as a matter of

This case had been scheduled for Trial on

3/27/06 DECISION OF THE EIGHTH

DISTRICT COURT OF APPEALS CASE

NO.88031

RE Te Se isk tis dvk shiner entatentnianeinnecneds D

Sustained the decision of Judge Coyne and

unlawfully stated that the Defendants’ admissions

of multiple oral and written Contracts and the

written modifications titled “Broadcast

xiii

Contracts” are “taken out of context” in spite of

the legal requirement that all inferences be _

considered most favorably against the moving

party. In obvious collusion and/or influence

originating with the ADL and/or the Jewish Legal

Community.

DECISION OF THE SUPREME COURT OF OHIO

DENYING CERT AND/OR REVIEW CASE NO. 2007-

1816 dAMUART 23, DGUG.... cos ccccccvescosencaunes E

XIV

APPENDICES OF EXHIBITS

1). Original contract between Radio One

Inc. and Abe Ayad

9-3-03 to begin broadcast on 9-5-03

CONTRACT NO. 7100380............. I

2). Contracts rewritten to begin 1-30-04

CONTRACT NO 7100526.............. II

3) Contracts prepared and given to

Plaintiffs titled “BROADCASTS

CONTRACTS’ that Defendants claim were

i... cee scslonensce Ill

4). Payment in advance for 9-6-04 thru 9-

5). Calendar count of broadcast 54

EES ETT: SE V

6). Transcribed phone recorded statement

of Defendants’ V.P. Bevins........... VI

XV

TABLE OF CASES AND AUTHORITIES

Baltimore & Ohio Rd. Co. v. Hollenberger,

76 Ohio St. 177, 81 N.E. 184...............00000- 16

In re Byard (1996), 74 Ohio St. 3d 294,

Capitol Movies, Inc. v City of Passaic, 194 N.J.

Super.298, 476 A.2d 869 (App. Div. 1984)....12

Coldwell banker Residential Real Estate

Services v. Sophista Homes, Ins.

(1992)Ohio App. Lexis 5474................0.0000- 18

Energy Marketing Services, Inc. v. Homer Laughlin

China Co.,

186 F.R.D. 369 (S.D. Ohio 1999)............... 17

Episcopal Retirement Homes, Inc. v. Ohio Dept. Of

Indus. Relations, 61 Ohio St. 3d 366, 369 1991)..17

Erzonzntk v City of Jacksonville, 422 U.S.

205, 95 S.Ct. 2268 45 L.Ed.2d 125 (19785)....... 13

Garofalo v. Chicago Title Ins. Co., 104 Ohio

App. 3d 95 (Cuyahoga Cty. 1995).................17

Industrial Commission vu. Weigand, 128 Ohio St. 463,

P_MSN eapee seem rs rele oe nn eR eLearn 16

In re King (1980), 62 Ohio St. 2d .................. 16

Jenkins v. Keller (1966), 6 Ohio St. 2d

Hirsi Ali Author of Infidel (Free Press 368 p.,)....6

Ohio Revised Code Section 1335.05.................. 20

Patton v. Diemer (1988), 35 Ohio St. 3d 68,

es OIE ivi a dns dace cycea snub ckndduawmuabce 15

STATE v. HILL, 160 Ohio App. 3d 324 (2005)....... 15

LaCONTE ENT. v. CUYAHOGA CTY., 145, App. Ohio

RRR RRERNEERSIRS Sa iar s pene ne EC 32

State v, Lomax, 96 Ohio St. 3d 318,.................... 15

. Miller v. Bealer (1992), 80 Ohio App. 3d 180, 182, 608

pT AE RANG IRN eta cs ea ete 19

Morrison v. Steiner (1972), 32 Ohio St. 2d 86, 61 O. O.

2d 335, 290 N.E. 2d 841....... caus Uetadhipiseglaubiie 14

Pratts v. Hurley, 102 Ohio St. 3d 81, 2004-Ohio- 1980,

ie IE I dies 4d absnesassasesniatnanimemones 14

Richman Builders v. Tome 88 Ohio App. 520, 100 N.E.

Rudlidge v. Abeco Financial Services, 1980 Ohio

PD SA RI dei essen thcescnwsncsiccincecceseans 19

xvii

State v Miller, 83 N.J. 402, 416 A.2d 821

FR eisiniciineri’sce'xsvsenivivnn dhinkiteriohalcnsdiaiianiadedaibieiaeraae 12

State v. Shrum (1982), 7 Ohio App. 3d 244,

Turner Brooks of Ohio, Inc. V. Bowling Green State

LFDOOP EI TT ie siicsnnsicccacivsscedeeversans 19

Troy Carrocce v. Michael P. Shaffer 1999 Ohio

State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio

St. 3d 70, 75, 701 N.E. 2d 1002.............. 14

The CLEVELAND PLAIN DEALER ....11

The Supreme Court: How It Was, How It Is 269

(1987) Harlan, Manning LeDikes,

13 Rec. of the N.Y.C. Bar Association 541, 549

¢ BARGER Eee Wigner ee vnc: Wee tan et eg meee OO AER 5.

U.S. v Paramount Pictures, 334 U.S., 1311, 166, 68

S.CT., 915, 933 92 L.Ed. 1260 (1948)........... 13

xviii

1

DECISIONS BELOW

3-17-06 COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO CASE NO. CV-04-

542565

SUMMARY JUDGMENT GRANTED FOR

DEFENDANTS

SEE APPENDIX C

5-24-07 EIGHTH DISTRICT COURT OF

APPEALS CUYAHOGA COUNTY, OHIO

JUDGMENT AFFIRMED CASE NO. 88031

SEE APPENDIX D

1-23-08 SUPREME COURT OF OHIO

JURISDICTION DENIED CASE NO 2007-1816

SEE APPENDIX E

2

JURISDICTION

THE DATE UPON WHICH THE HIGHEST

COURT IN THE STATE OF OHIO DECIDED MY

CASE WASJANUARY 23, 2008 AND A COPY OF

THAT DECISION APPEARS AT APPENDIX E

THE JURISDICTION OF THIS COURT IS

INVOKED UNDER 28 U.S.C. SECT. 1257 (a) AND

(b). UNDER THE SUPREME COURT RULE 10 (a)

AND (b) IT IS CLEAR THAT THE PLAINTIFFS

FIRST AMENDMENT AND FOURTEENTH

AMENDMENT RIGHTS HAVE BEEN VIOLATED.

STATEMENT OF THE CASE

ON 9-10-04 THE CASE WAS FILED AND THE

T.R.O. REQUEST WAS DENIED ON 9-14-04. IT

WAS TRANSFERRED TO THE FEDERAL

DOCKET AND RETURNED 8-15-05. THE ADL

ENTERED APPEARANCE ON 3-13-06 AND

SUMMARY JUDGMENT WAS GRANTED ON

3-17-06. THE JUDGMENT WAS AFFIRMED ON

7-11-07 AND THE OHIO SUPREME COURT

DENIED CERT. ON JANUARY 23,2008.

3

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Bill of Rights

Amendment I

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

government for the redress of grievances.

Free speech can be regulated only as to “time, place

and manner.” State v. Miller, 83 N.J. 402, 416 A.

2d 821 (1980); Capitol Movies, Inc. v. City of

Passaic, 194 N.J. Super. 298, 476 A. 2d 869 (App.

Div. 1984). Regulations meet this requirement only

if they survive a three-pronged test, namely, they

must: (1) be justified without reference to the

content of the regulated speech; (2) serve a

significant governmental interest by the least

restrictive possible means; and (3) leave open

ample alternative channels for the communication

of the information. Erzonznik v, City of

4

Jacksonville, 45 L. Ed. 2d 125 (1975); State v,

Miller, supra.

(“[P]rior restraints on speech and publication are

the most serious and the least tolerable

infringement on first Amendment rights”);

Human Relations, 413 U.S. 376, 390 (1973).

There is little need to reiterate that the freedoms of

speech and of the press rank among our most

cherished liberties. As Mr. Justice Black put it: “In

the First Amendment the Founding Fathers

gave the free press the protection it must

have to fulfill its essential role in our

democracy.” New York Times Co. v. United

States, 403 U.S. 713, 717 (1971) (concurring

opinion). The durability of our system of self-

government hinges upon the preservation of these

freedoms.

“{S]ince informed public opinion is the most

potent of all restraints upon misgovernment, the

suppression or abridgment of the publicity afforded

by a free press cannot be regarded otherwise than

with grave concern. .. A free press stands as one

of the great interpreters between the

5

government and the people. To allow it to be

fettered is to fetter ourselves.” Grosjean v.

American Press Co., 297 U.S. 233, 50 (1936).

Pittsburg Press Co. v. Human Rei.

Comm ’n, 413 U.S. 376 (1973)

Amendment XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are Citizens of the United States and of the

State wherein they reside. No state shall make or

enforce any law which shall abridge the privileges

or immunities of Citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny te

any person within its jurisdiction the equal

protection of the laws.

The ratification of the Fourteenth Amendment

radically changed the Federal Courts’ relationship

with State Courts. That Amendment, one of the

post-Civil War Reconstruction Amendments

ratified in 1868, is the source of this Court’s power

to decide whether a Defendant in a State

proceeding received a fair Trial i.e., whether his

6

deprivation of liberty was “without due process of

law.” U.S. Const., Amdt. 14 § 1 (“[N]Jor shall any

State deprive any person of life, liberty, or

property, without due process of law”). In

construing that Amendment, we have held that it

imposes minimum standards of fairness on the

States, and requires State Criminal Trials to

provide Defendants with protections “implicit in

the concept of ordered liberty.” Palko v.

Connecticut, 302 U.S. 319, 325 (1937).

Summary Judgment Standard

When ruling on Motions for Summary

Judgment, Rule 56 (C) of the Ohio Rules of Civil

Procedure guides the Court. As the Ohio Supreme

Court has outlined, Rule 56 (C) permits the Court

to grant Summary Judgment when (1) there are no

genuine issues of material fact; (2) reasonable

minds can come to only one conclusion, and the

conclusion adversely affects the non-moving party; _

and (3) the moving party is entitled to judgment as

a matter of law. Zivich v. Mentor Soccer Club

(1998), 82 Ohio St. 3d 367, 369-370.

JUSTICE ALITO agrees with JUSTICE

SCALIA, and would transpose to the pleading stage

“the test that is used at the Summary Judgment

and Judgment-as-a-matter-of-law stages.” Post, at

3 (opinion concurring in Judgment). But the test

at each stage is measured against a different

backdrop. It is improbable that Congress, without

so stating, intended Courts to test pleadings,

unaided by Discovery, to determine whether there

is “no genuine issue as to any material fact.” See

Fed. Rule Civ. Proc. 56 (C). And Judgment as a

matter of law is a post-trial device, turning on the

question whether a party has produced evidence

“legally sufficient” to warrant a jury determination

in that party’s favor. See Rule 50(a) (1).

Tellabs v. Makor Issues & Rights, 06-484

(U.S. 6-21-2007), 127 S. Ct. 2499

8

REASONS FOR GRANTING PETITION

It is clear that the Trial Court was

influenced (threatened) by the actions of the Anti-

Defamation League. It may be moderately

significant that the Trial Judge Coyne issued notice

of his intent to retire shortly after his decision

granting Summary Judgment against the

Plaintiffs. It is clear that his determinations and

those of the Eighth District Court of Appeals are in

direct conflict with the State Law determining the

basis and procedure for which Summary Judgment

may be granted. It is clear that the determinations

of the Court below have decided a question of

Federal Law that is important to the Supreme

Court of the United States as the Ohio State Courts

have refused to give the Plaintiffs their

FOURTEENTH AMENDMENT rights of Equal

Protection under the laws of the State of Ohio and

have allowed the Anti-Defamation League to stifle

the Plaintiffs First Amendment Rights of Freedom

of Speech. These actions of the State of Ohio

Courts have so far departed from the accepted and

usual course of Judicial Proceedings and the Ohio

Supreme Court has Sanctioned this departure from

accepted and usual course of Judicial Proceedings,

that it cries out for an exercise of the United States

Supreme Court Supervisory Power.

9

Chief Justice Rehnquist identified that

“cases involving unsettled questions of

Federal Constitutional Statutory Law of

General interests” should be considered

Certiorari worthy. The Supreme Court: How It

Was, How It Is 269 (1987) Harlan, Manning

LeDikes, 13 Rec. of the N.Y.C. Bar Association 541,

549 (1958). Obviously, the Cuyahoga County Court

of Common Pleas Trial Court Judge William J.

Coyne was intimidated by the actions of the Anti-

Defamation League including but not limited to

their demand that the Deposition of Bettysue

Feuer, Regional Director of the ADL be confiscated

and destroyed. The influences with regard to this

case permeate the absurd determinations by the

Eighth District Court of Appeals including Judge

Mary J. Boyle (newly Elected Appellate Judge)

determinations that the Records and Statements of

the Defendants’ Employees were “taken out of

context” contrary to the Supreme Court of Ohio’s

determinations as to the restrictions on Summary

Judgment. The Supreme Court of Ohio refused to

review this matter for reasons known only to them

which brings us before this Honorable United

States Supreme Court on this Petition for Writ of

Certiorari. The Plaintiffs have sustained great

harm both financially and professionally and the

family of Brahim (Abe) Ayad has been threatened

including an attempt to murder one of his children

10

by Jewish Interests (JDL) which resulted in both

FBI and Justice Department Investigations.

“People ask me if I have some kind of death

wish, to keep saying the things I do” writes

Hirsi Ali Author of Infidel (Free Press 368 p.,)“The

answer is no I would like to keep living”.

HOWEVER, SOME THINGS MUST BE SAID

AND THERE ARE TIMES WHEN SILENCE

BECOMES AN ACCOMPLICE TO

INJUSTICE.” It is from these disturbing

circumstances of violation of the Plaintiffs’ (15*)

First Amendment Rights to Free Speech and

violation of their (14) Fourteenth Amendment

rights that they respectfully submit their Petition

for Writ of Certiorari to the United States Supreme

Court.

I

The Fourteenth Amendment to the United

States Constitution guaranteeing equal protection

under the law including the laws and precedent of

the State of Ohio require the Cuyahoga County,

Ohio Court of Appeals and the Eighth District

Court of Appeals of Ohio and the Supreme Court of

Ohio to exercise the standard of law as determined

in Ohio on the issue of Summary Judgment equally

to Plaintiff, Brahim (Abe) Ayad a Palestinian

American Muslim and Michael Troy Watson a

Black American Student of Islam. The Ohio

11

Supreme Court, Eighth District Court of Appeals

and Cuyahoga County Court of Common Pleas

must use the same Standard of Summary

Judgment for all parties and not discriminate

against the Petitioners succumbing to the pressure

or influence of the Anti-Defamation League and/or

the Jewish Legal Community who were intent on

persecution of the Plaintiff/Appellant/Petitioners

for their religious and political beliefs.

This case began essentially as a claim resulting

from the Defendant’s termination of the Plaintiffs’

Time Broker Radio Broadcast Program. The

Program began as a One (1) Hour per week

program and as a result of its immense popularity,

it expanded first, to Two (2) Hours (Friday only) per

week. It then went to Three (3) Hours a week

(Fridays only), and due to its success, then to a

daily program Monday through Friday. This

Program was in an expansion mode, a “Breakout

hit” and as its popularity increased, so did the

numbers of hours per week. The Plaintiffs were

being assisted by Defendant’s Sales Representative,

Bill Glover in expanding the Program to a Satellite

Broadcast and the Plaintiffs expected to have a

Regionally Distributed Program in the immediate

future with the expectations of a Nationally

Syndicated Program imminent. Plaintiffs had been

in touch with other interests and financers seeking

12

to complete this goal. The Defendant, without

notice of any kind, terminated the Plaintiffs

Broadcast within hours of the Program on to

Broadcast September 6, 2004 (coincidentally the

day of a John Kerry for President Rally in

Cleveland). The Plaintiffs submit that the

Defendants viclated their contract for Broadcast of

their Program.

1. THE PLAINTIFFS ORIGINAL ONE (1)

YEAR TIME BROKER PROGRAM ROLLED

OVER TO A FULL ONE YEAR RENEWAL.

The Defendant’s Employees and

Representatives, David Bevins and Bill Glover

acknowledge that the Program was a FIFTY-TWO

(52) WEEK PROGRAM. Week number on began

with the first week of Broadcast September 3, 2003

and ended with the last full week of Broadcast on

August 27, 2004. THE PLAINTIFF'S

BROADCAST ONE FULL WEEK ON THE

“ROLLED OVER” CONTRACT FROM

AUGUST 29, 2004 THROUGH SEPTEMBER 3,

2004!!! (see Exhibit “ y “)

The WERE 1300 AM Time Broker Contract

provided by the Defendants to the Plaintiffs

included the following:

13

“The Station reserves the right to change

program times WITH REASONABLE NOTICE.

(a) This One (1) Year Agreement may be

terminated by either party at

THIRTEEN WEEK INCREMENTS

WITH WRITTEN NOTICE SENT BY

CERTIFIED OR REGISTERED MAIL

FOUR (4) WEEKS PRIOR TO THE

END OF A THIRTEEN (13) WEEK

PERIOD. ;

(b) However, inat this agreement may be

terminated by Radio One, Inc. at any

time and

without notice if, in it’s opinion or that of

it’s Counsel this agreement or any portion

thereof is, or may be in violation of State

or Federal Law with rules, regulations,

policy and/or decisions of the FCC, or it’s

Time Broker’s Programming is deemed by

Radio One, Inc. to likely place the

Stations License in jeopardy at the FCC.

This agreement may not be changed,

altered, or “MODIFIED EXCEPT IN WRITING.”

2. PLAINTIFFS ENTERED INTO A NEW

ONE (1) YEAR CONTRACT BEGINNING

JANUARY 30, 2004.

14

Defendant’s Employees and Representatives,

Bevins and Glover acknowledge that the original

contract was cancelled and rewritten on January

30, 2004. This one year contract would have

continued through January 2005, and prohibited

the Defendant from cancelling the Program on

September 6, 2004!!! (see Exhibit “V“) When the

first modification of the original agreement

occurred the Contract was rewritten and assigned a

new contract number on or about Janvary 30, 2004.

This new contract increased the Broadcast Hours

and again provided the Plaintiffs with a Fifty-Two

(52) week renewed contract expiring January 30,

2005. All subsequent billing statements identified

the REWRITTEN CONTRACT APPROVED BY

DAVID BEVINS VICE PRESIDENT OF RADIO

ONE, INC., OF JANUARY 30, 2004 BY ITS

NEW CONTRACT NUMBER

3. THE ORIGINAL CONTRACT WAS

MODIFIED BY THE SEVERAL WRITTEN

“BROADCAST CONTRACTS” ALL OF WHICH

CONTAIN NOTIFICATION REQUIREMENTS

TO TERMINATE.

The Defendant created their own “Broadcast

Contracts” acknowledged as a Contract by

Defendants Representatives David Bevins, Bill

Glover, and their Expert Witness Mike McVay, as a

18

Contract “modification” of their previous agreement

in effect. The last of these “BROADCAST

CONTRACTS’ called for a term beginning

February 2, 2004 for THIRTEEN (13) WEEK

PERIODS ENDING OCTOBER 1, 2004. Even

the Defendant’s own documents acknowledged that

the established in house records were for the

Program to Broadcast to and through October 1,

2004.

The “Broadcast Contract” had been again rewritten

for new terms and conditions including expansion

of the program in increments of additional hours.

The program originally had begun as a Friday

(only) program from 10:00 through 11:00 p.m. It

expanded initially to Fridays from 10:00 through

Midnight. It next expanded by agreement with the

Defendant to Friday from 9:00 until Midnight.

This expanded further to Monday through

Thursday from 11:00 until Midnight and Fridays

from 9:00 until Midnight a total of Seven (7) Hours

per week. In these Four (4) separate modifications

of the original One (1) Hour agreement the

Defendants Representative Bill Glover identified

that the “NEW CONTRACT” was in effect and

that the Broadcast of “Politically Damned” Talk

Radio would continue as long as there “was

payment in advance for the time purchased.” He

identified that he was never instructed to inform

16

the Plaintiffs contrary to this agreement that had

been the custom and practice between the parties

since the onset of the agreement. The Plaintiffs

made payment in advance for the future time by

leaving the check with the Defendants Employee

(Board Operator) on the Friday before the next Two

(2) week Broadcast. As the program became a

“break out success” it was the expectation of the

Plaintiffs that the program would continue through

the “roll over” of the original agreement and/or with

the modifications, in writing, that had been the oral

agreement reduced to written “Broadcast

Contracts” between the parties. Throughout this

same period the Plaintiffs had received the

modifications by written acknowledgement and

titled as “Broadcast Contracts.” Each of these

Broadcast Contracts called for additional notices

for cancellation.

As of September 6, 2003, this agreement

continued in full force and affect without indication

of termination through September 6, 2004. A

period of Fifty-Four (54) weeks Broadcast.

September 6, 2004 represented the Fifty-Fourth

(54th) week of Broadcast of “Politically Damned”

Talk Radio. On this date, David Bevins contacted

the Plaintiffs approximately Two (2) Hours before

the Labor Day Holiday Broadcast and notified them

that their program was terminated. There was no

17

written notice at any time regarding this

termination. Plaintiffs were notified that they

would be arrested if they appeared on the premises

to Broadcast “Politically Damned” Talk Radio. The

CLEVELAND PLAIN DEALER reported that Abe

Foxman, National Chairman of the Anti-

Defamation League demanded that the program

be cancelled and it was, SUMMARILY AND

WITHOUT NOTICE!!!

4. THE CONTRACT BETWEEN

PLAINTIFFS AND DEFENDANTS CALLED

FOR A TWO WEEK PREPAYMENT THAT

WAS MADE IN FULL BY PLAINTIFFS TO

DEFENDANTS.(see Exhibit “jy“) AT ALL

TIMES THE DEFENDANT'S EMPLOYEES

AND REPRESENTATIVES BEVINS AND

GLOVER ACKNOWLEDGE THAT THE

‘CUSTOM AND PRACTICE’ OF THE PARTIES

WAS FOLLOWED FULLY BY THE DEPOSIT

OF A TWO (2) WEEK ADVANCE PAYMENT

ON SEPTEMBER 3, 2004 FOR BROADCAST

SEPTEMBER 6, 2004 THROUGH

SEPTEMBER 17, 2004.

It is acknowledged that payment was made

in the amount of Eighteen Hundred Dollars

($1,800.00) for the two (2) week periud of

September 6, 2004 through September 17, 2004.

18

The payment “in advance” for the weeks through 9-

17-04 in the amount of Eighteen Hundred Dollars

($1,800.00) was paid and accepted in the ordinary

manner as was the custom and practice between

the parties on September 3, 2004. The exchanges

by E-Mail between David Bevins and Sales

Manager, Bill Glover verified the acceptance of the

check in the amount of Eighteen Hundred Dollars

($1, 800.00) on September 3, 2004 AND

CHED D THE BER

1, 2006. It was subsequently returned un-cashed

on September 9, 2004 by Sales Manager, Bill

Glover. This payment was made in the identical

manner as all payments throughout the duration of

the relationship between Plaintiffs and Defendants.

The Defendant denied successfully,

CONTRARY TO THE STANDARDS OF

SUMMARY JUDGMENT LAW, through the Ohio

Courts that any contract was in effect between the

parties contrary to all law, rule, and the testimony

of Defendants OWN Employees and

Representatives Bevins, Glover and their Expert,

Michael McVay. It is only the demand of Abe

Foxman, National Chairman of the Anti-

Defamation League that removed the

Plaintiffs and his claims of “The Worst Anti-

Semitism that I have ever heard”, all of

which was untrue.

19

il.

The Fourteenth Amendment to the United

States Constitution guaranteeing equal protection

under the law including the laws and precedent of

the State of Ohio require the Cuyahoga County,

Ohio Court of Appeals and the Eighth District

Court of Appeals of Ohio and the Supreme Court of

Ohio to exercise the standard of law as determined

in Ohio on the issue of Summary Judgment equally

to Plaintiff, Brahim (Abe) Ayad a Palestinian

American Muslim and Michael Troy Watson a

Black American Student of Islam. The Ohio

Supreme Court, Eighth District Court of Appeals

and Cuyahoga County Court of Common Pleas

must use the same Standard of Freedom of

Speech for all parties and not discriminate against

the Petitioners succumbing to the pressure or

influence of the Anti-Defamation League and/or the

Jewish Legal Community who were intent on

persecution of the Plaintiff/Appellant/Petitioners

for their religious and political beliefs.

Free speech can be regulated only as to

“time, place and manner.” State vu Miller,

83 N.J. 402, 416 A.2d 821 (1980): Capitol

Movies, Inc. v City of Passaic, 194N.-J.

Super.298, 476 A.2d 869 (App. Div. 1984)

Regulations meet this requirement only

if they survive a three prong test,

20

namely, they must: (1) be justified

without reference to the content of the

regulated speech; (2) serve a significant

governmental interest by the least

restrictive possible means; and(3) leave

open ample alternative channels for the

communication of the information.

Erzonznik v City of Jacksonville, 422

U.S. 205, 95 S.Ct. 2268 45 L.Ed.2d 125

(1975); State v Miller, supra:

It was only the demand of Abe Foxman,

National Chairman of the Anti-Defamation

League that removed the Plaintiffs from their

“highly” successful Radio Program with his

claims that it was “The Worst Anti-Semitism

that I have ever heard”, all of which was

untrue.

We have no doubt that moving

pictures, like newspapers and radio are

included in the press whose freedom is

guaranteed by the First Amendment.

U.S. v Paramount Pictures, 334 U.S.,

1311, 166, 68 S.CT., 915, 933 92 L.Ed. 1260

(1948).

In this case, it was only the demand of

Abe Foxman, National Chairman of the Anti-

Defamation League that removed the

ss

21

Plaintiffs from their broadcast contract with

his claims that it was “The Worst Anti-

Semitism that I have ever heard” and his

demand that “Politically Damned’ Talk Radio

be removed from the air, that cancelled the

broadcast. The Trial Court was intimidated by

the power of these Jews. The Eighth District Court

of Appeals decision was a mockery of justice and

OVERRULED THE STANDARD OF

SUMMARY JUDGMENT IN THE STATE OF

OHIO AND AS PLAINTIFF/APPELLANT HAD

BEEN PREVIOUSLY AND SUBSEQUENTLY

HELD BY THE UNITED STATES SUPREME

COURT!!! The ADL demanded the

cancellation and the Ohio Courts censored

what was falsely alleged to be “ANTI-

SEMITISM’.

iil.

The Fourteenth Amendment to the United

States Constitution guaranteeing equal protection

under the law including the laws and precedent of

the State of Ohio require the Cuyahoga County,

Ohio Court of Appeals and the Eighth District

Court of Appeals of Ohio and the Supreme Court of

Ohio to exercise the standard of law as determined

in Ohio on the issue of Summary Judgment equally

to Plaintiff, Brahim (Abe) Ayad a Palestinian

American Muslim and Michael Troy Watson a

22

Black American Student of Islam. The Ohio

Supreme Court, Eighth District Court of Appeals

and Cuyahoga County Court of Common Pleas

must use the same Standard of Jurisdiction of

the Eighth District Court of Appeals when no Final

Order was issued or otherwise when the language

of “no just reason for delay” pursuant to Rule 54(B)

was not included, for all parties and not

discriminate against the Petitioners succumbing to

the pressure or influence of the Anti-Defamation

League and/or the Jewish Legal Community who

were intent on persecution of the

Plaintiff/Appellant/Petitioners for their religious

and political beliefs.

{ 4 18 } “Subject-matter jurisdiction is a

Court’s power over a type of case. It is

determined as a matter of law and, once

conferred, it remains.” Pratis v. Hurley, 102

Ohio St. 3d 81, 2004-Ohio-1980, 806 N.E. 2d

992, at ¥ 34; see, also, Morrison v. Steiner

(1972), 32 Ohio St. 2d 86, 61 O. O. 2d 335,

290 N.E. 2d 84l1,paragraph one of the

syllabus (“Subject-matter jurisdiction of a

Court connotes the power to hear and decide

a case upon its merits”). Jurisdiction is a

condition precedent to a Court’s ability to

hear a case. State ex rel. Tubbs Jones uv.

23

Suster (1998), 84 Ohio St. 3d 70, 75, 701 N.E.

2d 1002.

“If a Court acts without jurisdiction, then

any proclamation by that Court is void.” Id.,

citing Patton v. Diemer (1988), 35 Ohio St. 3d

68, 518 N.E. 2d 941. A jurisdictional defect

cannot be waived, and it may be raised for

the first time on Appeal. State ex rel. Tubbs

Jones at 75, 701 N.E. 2d 1002; While we note

that the State Appealed only Case No. CR-

430754 and not Case No. CR-432856, we find

that this decision is applicable to both cases

because subject matter jurisdiction cannot be

waived and may be raised by a reviewing

Court Sua Sponte. State v. Lomax, 96 Ohio

St. 3d 318, STATE v. HILL, 160 Ohio App.

3d 324 (2005).

Although Liberty Life did not raise its

jurisdictional argument before the Probate

Division, it is well settled that a Lack of

subject matter jurisdiction may be raised at

any time, even for the first time on Appeal.

Jenkins v. Keller (1966), 6 Ohio St. 2d 122,

126

Furtherrcore, it is well settled that, where a

Court has no jurisdiction over the subject

matter of an action, a_ challenge to

24

jurisdiction on such ground may effectively

be made for the first tume on Appeal in a

reviewing Court. 3 Ohio Jurisprudence 2d

48, 49, Section 189; Baltimore & Ohw Rd.

Co. v. Hollenberger, 76 Ohio St. i77, 81 N.E.

184; Industrial Commission v. Weigand, 128

Ohio St. 463, 191 N.E. 696.

As an initial matter, it is well established

that the defense of lack of subject matter

jurisdiction can never be waived. In re King

(1980), 62 Chio St. 2d 87. Objections based

upon lack of subject matter jurisdiction may

be raised at any stage of the proceedings, In

re Byard (1996), 74 Ohio St. 3d 294, 296;

may be raised for tue first time on Appeal,

Jenkins v. Feller (1966), 6 Ohio St. 2d 122,

paragraph five of the syllabus; or may be

attacked collaterally, State v. Shrum (1982),

7 Ohio App. 3d 244, 245.

The Eighth District Court of Appeals took on

this case without jurisdiction as the Trial Court

made its ‘final entry without addressing all of the

named and served Defendants. This was ignored

by the Ohio Courts because of the influences of the

ADL as this was an intentional act of censorship of

the Plaintiffs at the demand of Abe Foxman,

National Chairman of the Anti-Defamation

League. The Trial Court was intimidated by

25

the power of these Jews. The Eighth District Court

of Appeals decision was a mockery of justice and

OVERRULED THE STANDARD OF

JURISDICTION IN THE STATE GF OHIO.

The ADL demanded the cancellation and the

Ohio Courts censored what was falsely

alleged to be “ANTI-SEMITISM”.

IV

The Fourteenth Amendment to the United

States Constitution guaranteeing equal protection

under the law including the laws and precedents of

the State of Ohio require the Cuyahoga County

Court of Common Pleas, the Eighth District Court

of Appeals of Ohio and the Supreme Court of Ohio

to exercise the Standard of Law as determined in

Ohio on the issue of Summary Judgment equally to

Plaintiff, Brahim (Abe) Ayad a Palestinian

American Muslim and Michael Troy Watson a

Black American Student of Islam. The Ohio

Supreme Court, Eighth District Court of Appeals

and Cuyahoga County Court of Common Pleas

must use the same Standard of Enforcement of

Contract Law to all parties and not discriminate

against the Petitioners succumbing to the pressure

or influence of the Anti-Defamation League and/or

the Jewish Legal Community who were intent on

persecution of the Plaintiff/Appellant/Petitioners

for their religious and political beliefs.

26

In Ohio, the essential elements of a cause of

action for breach of contract are:

1) The existence of an enforceable contract; 2) The

performance of the contractual obligations by the

party seeking relief; 3) Breach of failure to fulfill

contractual obligations by the other party; and 4)

Damages suffered by the party seeking relief as a

result of the breach .Energy Marketing Services,

Inc. v. Homer Laughlin China Co.,

186 F.R.D. 369 (S.D. Ohio 1999); Garofalo v.

Chicago Title Ins. Co., 104 Ohio App. 3d 95

(Cuyahoga Cty. 1995); Episcopal Retirement

Homes, Inc. v. Ohio Dept. Of Indus. Relations, 61

Oho St. 3d 366, 369 (1991).

A contract was in existence and was agreed to by

all parties. If he Plaintiffs position was that the

original “fifty-two week” contract was in full force

and effect, then when it rolled over and became a

new one year contract the time would have

continued from the end of the fifty-two week period

Thursday, August 27, 2004 thru August 26, 2005.

The broadcast of a fifty-third week from August

30% through September 3” represented a “roll

over” of the contract for the period of one additional

year. (See attached Exhibit “VY ”)

27

Further, the separate contract rewritten as a

new contract between the parties (Bevins

Deposition Transcript Page 220 Lines 19-25, began

a rewrite of the old contract designating a new

contract number period and cost period. This was

further modified by the “Broadcast Contracts” that

were issued subsequent to that date, that in all

reflected the rewritten contract by hours, terms,

and duration.

At the time that the Plaintiffs were

terminated from their on-the-air broadcast they

had made payment of Eighteen Hundred Dollars

($1,800.00) on September 3, 2004 for their

continued... “NO LESS THAN TWO WEEK”

further duration of broadcast. This payment and

Agreement was conducted as had been the ‘custom

and practice’ of the parties.

Regardless of how this matter is reviewed, it

would take an extraordinary stretch of the

imagination to find that the original “fifty-two week

time broker contract” was in full force and effect

contrary to all of the written modifications thereof

as well as the performance modifications thereof.

There can only be one conclusion. The Defendants

“version” of the facts is not consistent with the

written documentation and sworn testimony.

28

The Affidavit of David Bevins is

substantially contrary to his phone recorded

statements as well as his Deposition testimony.

“Oral modification of a written contract

must be supported by new and distinct

consideration.” Thurston v. Ludwick (1856) 6 Ohio

St. 1 Coldwell banker Residential Real Estaie

Services v. Sophista Homes, Ins. (1992)Ohio

App. Lexis 5474.

Clearly an exchange of funds for additional time

demonstrates adequate consideration for

modifications as indicated herein.

“The Appellants conceded that a written

contract may be orally amended if the oral

amendment has the essential elements of a

binding contract.

Richman Builders v. Tome 88 Ohio App. 520,

100 N.E. 2d 433;Rudlidge v. Abeco Financial

Services, 1980 Ohio App. Lexis 13610 .

The modified agreement is not only orally

amended but it was supported by the so called

“Broadcast Contracts”, written documents prepared

by the Defendants and submitted to the Plaintiffs.

The oral aspect of the agreement therein modified

was subsequently reduced to written confirmation

29

by the Defendants and ratified by both parties in

their performance of the terms required therein.

“The reasonable contract for contract

performances not measured by hours, days, weeks,

months or years, but is to be determined from the

surrounding conditions and circumstances which

the parties contemplated at the time the contract

was executed. Miller v. Bealer (1992), 80 Ohio App.

3d 180, 182, 608 N.E. 2d 1133 citing Turner Brooks

of Ohio, Inc. V. Bowling Green State University

(1989), 51 Ohio Misc. 2d 1, 3, 554, N_E.2d 956; Troy

Carrocce v. Michael P. Shaffer 1999 Ohio App.

Lexis 4845 .

In the Defendant’s Brief he argued that no

enforcable written contract existed between the

parties. We now know that is not true. The

Defendants allege that the “oral amendment” must

have essential elements of a binding contract. We

know that the modifications with adequate

consideration met all of the essential elements of a

binding contract. The allegations that a oral

contract extending beyond one year is barred by the

Statute of Frauds is patently inaccurate as the

dates of modification are January 30, 2004, May 14,

2004 and September 3, 2004. The time of the

termination with regard to this matter is well

within the “one year” provision. From the Ohio

Revised Code Section 1335.05;

30

No action shall be bought whereby to charge

the Defendant...Upon an agreement that is

not to be performed within one year for the

making thereof...Unless the agreement upon

which such action is brought or some

Memorandum or note thereof, is in writing

and signed by the party to be charged

therewith...

Defendants in their own construction

identify the modification terms and conditions as

their “BROADCAST CONTRACT”. No amount

of oral Affidavit or discussion can redefine the

terms “BROADCAST CONTRACT” to

subsequently mean a simple billing statement. At

all times the Defendants have ONLY ALLEGED

THAT THE CONTRACT EXPIRED AND WAS

NOT RENEWED. EVEN THE DEFENDANTS’

EMPLOYEE BEVINS ACKNOWLEDGED

THAT MORE THAN ONE CONTRACT

EXISTED. David Bevins on the taped

conversation admits that there was more than one

contract contrary to the representations of his

lawyers on behalf of the Defendants;

(Bevins) Well, what’s going on is we

had a 52-week agreement that Abe had

signed that expired on September 5*,

which was yesterday, so that

31

Agreement has expired, which we were

no longer going to

Renew and continue the show based on

that agreement expiring. The other

Situation is the other (agreements) —the

other programs that were on the air

were day-to-day, week-to-week, type of a

program which we

Decide that we were no longer going to

have aired on our radio station.

So, we decided to take the opportunities,

since the contract expired

yesterday, to basically end the

relationship between your program and

WERE.

(Watson) Isee. Well, actually, ’ma

little bit confused, because the original

Agreement was modified, it was

originally for an hour, and then that

modified to turn into every week and

even before the contract expired, Abe

had paid up for the next two weeks.

32

(Bevins) Well, the original agreement

was @ 52 week program that was for

Friday.

(Watson) Yeah, but just one hour.

(Bevins) Right. And then, and then,

and then other, hours or programming

That was part of that were a day-to-day

week-to-week type of situation which we

allowed to have happzned based on pre-

payments and it was in— and even in the

agreement it states that we, at the

_ station, can terminate the agreement as

we see fit basically at any time.

Phone trans Page 10 Line 3-25, Page 11

Line 1-6.

(Watson) Two Contracts or One

Contract?

(Bevins) It is two different sales

orders that generated two contracts.

Bevins Trans. Pg. 203 Lines 6-8

(Ayad) And, the extra time we

purchased, that these modifications to

33

the contract, are they written anywhere?

Do we have any written notice of them?

(Glover) Well, just I mentioned befeore,

you would receive something in the mail

letting you know that you had

purchased those.

(Ayad) Would that be the Broadcast

Contract?

(Glover) That’s what they’re labeled

as; yes.

Glover Trans. Pg. 545 Lines 20-25 Pg. 546

Line 1-4

(Watson) Q. Okay, Was there any written

agreement that sold us the additional time?

(Bevins) A. No.

Q. And there was never any subsequent

ratification of any expanded time either,

right?

A. No.

Q. Because these additional days were not

under any written contract of any kind: is

that a fair statement?

34

A. That’s correct.

Bevins Trans. P. 164 L. 12-21.

(Watson) Q. Didn’t you say that there's

an additional document that identifies the

purchase of additional time that’s not

included in this (original

contract)Agreement?

(Bevins) A. This document represents

shows that were purchased: yes.

Bevins Trans. P. 172 L. 8-12.

Bevins goes on to explain that the written

modification of the original

agreement has a new start time and ending

date.

(Watson) Q. Okay, Now, there is a start

time on the document that you are referring

to; is it not?

(Bevins) A. Yes.

Q. And what date is that?

A. This document has February 6 (2004).

35

Q. Okay, and there’s and end time on that

document; when is that? In the top

part right next to February 6“ (2004), let’s

look at that. That’s what I am referring to.

A. ON THE END DATE, IT SAYS “10/1"

(2004). |

Bevins Trans. P. 172 L. 14-25 (PARENS

ADDED)

(Watson) Q. This document that has a

start date of February 6“, 2004 and an end

date of October 1**, 2004 is produced by you

and your organization; isn’t that correct?

(Bevins) A. This sales order is created

from our system.

Bevins Trans, P. 173 L. 9-14.

(Watson) Q. This document representing

the purchase of the time that was not

included in the original agreement has on it

a start date and an end reflecting February

through October; (2004) is that not correct?

(Bevins) A. That is the dates the

document has.

Bevins Trans. P. 176 L. 22-25, P. 177 L. 1.

36

(Watson) Q. Well, it says here,

“cancelled”. What were you cancelling, if

there wasn’t an agreement in effect?

(Bevins) A. Because Bill had put in

additional programs.

Q. They had been paid for; hadn’t they?

A. They had been paid for; that’s correct......

Q. ....We had an agreement that the shows

had to be paid for in advance?

A. That is part of the Time Broker

agreement.

Q. All right. Well where does it say that on

this document, pay in advance; if it does, it

might, just tell me if it says that (referring

to the original 9-3-03 Contract).

A. I DON'T BELIEVE IT SAYS THAT ON

YOUR AGREEMENT..

Bevins Trans. P. 180 L. 18-25 (PARENS

ADDED)

Bevins goes on to explain further:

(Bevins) A. The contract that is reflected

on your WERE Time Broker Agreement

Started September 3", I believe, and it was

in the first contract that was entered was an

one-week contract. THAT ONE

CONTRACT HAD BEEN REVISED TEN

TIMES OR ACTUALLY, IT WAS MOVING

FORWARD AS PART OF THE

PREPAYMENT PLAN. So every time you

prepaid, we added weeks to the schedule.

Bevins Trans. P. 207 L. 5-12 (emphasis

added)

(Bevins) A. And that first contract that

we had started September 3” and went

through the entire length of the agreement,

BUT BECAUSE IT WAS PREPAID, THAT

ORIGINAL CONTRACT WAS MODIFIED

EVERY TIME YOU PAID, BUT THERE

WAS A DATE OF January 30 that you

did not pay us, which we then ended that

contract ....which created a new contract

number.

Bevins Trans. P. 208 L. 18-25 (emphasis

added)

(Watson) Q. Now, Sir, with regard to

these changes that you referred to as

modifications, are they identified in the

38

document entitled “Broadcast Contract” as

modified--modifications?

(Bevins) A. It shows in the last ---when

the contract was changed.

ins Trans. P. 220 L. 19-25

Further, the Defendant’s Employees were

determined to be within the course and scope of

their Employment with the Defendant Radio One,

Inc., by this Honorable Court’s Order of 11-22-05.

“Plaintiffs’ claim for Breach of Contract

is the only claim that survives

Defendant’s Motion for Judgment on

the Pleadings. Accepting Plaintiffs’

allegations as true, as this Court must

for the purpose of ruling on a Motion

for Judgment on the Pleadings, he

Court finds that Plaintiffs have plead a

Cause of Action for Breach of Contract

for Breach of an Oral Contract that

modified and extended a written

agreement between the Parties. The

Court finds that Plaintiffs’ Breach of

Contract claim applies only to

Corporate Defendant Radio One, Inc.

Plaintiffs’ Breach of Contract claim

does not apply to any of the Individual

39

Defendants because, as a matter of law,

individual liability should not be

extended to Corporate Representatives

acting in their Corporate Capacity.”

Brahim (Abe) Ayad, et al . Vs. Radio

One, Inc., et al. Judge Coyne 11-28-2005

In spite of this evidence the Trial Court held

(after the intimidation by the ADL) that reasonable

minds could only conclude that Defendants were

entitled to Summary Judgment in their

favor... UNBELIEVABLE!!!

(Watson) Two Contracts or One

Contract?

(Bevins) It is two different sales

orders that generated two contracts.

Bevins Trans. Pg. 203 Lines 6-8

(Watson) Q. This document that has a

start date of February 6‘, 2004 and an end

date of October 1%, 2004 is produced by you

and your organization; isn’t that correct?

(Bevins) A. This sales order is created

from our system.

Bevins Trans. P. 173 L. 9-14.

40

(Watson) Q. This document representing

the purchase of the time that was not

included in the original agreement has on it

a start date and an end reflecting February

through October; (2004) is that not correct?

(Bevins) A. That is the dates the

document has.

Bevins Trans. P. 176 L. 22-25, P. 177 L. 1.

(Watson) Q. Well, it says here,

“cancelled”. What were you cancelling, if

there wasn’t an agreement in effect?

(Bevins) A. Because Bill had put in

additional programs.

Q. They had been paid for; hadn’t they?

A. They had been paid for; that’s correct......

Q. ....We had an agreement that the shows

had to be paid for in advance?

A. That is part of the Time Broker

agreement.

Q. All right. Well where does it say that on

this document, pay in advance; if it does, it

might, just tell me if it says that (referring

to the original 9-3-03 Contract).

41

A. I DON’T BELIEVE IT SAYS THAT ON

YOUR AGREEMENT.

Bevins Trans. P. 180 L. 18-25 (PARENS

ADDED)

Bevins goes on to explain further:

(Bevins) A. The contract that is reflected

on your WERE Time Broker Agreement

Started September 3", I believe, and it was

in the first contract that was entered was an

one-week contract. THAT ONE

CONTRACT HAD BEEN REVISED TEN

TIMES OR ACTUALLY, IT WAS MOVING

FORWARD AS PART OF THE

PREPAYMENT PLAN. So every time you

Prepaid, we added weeks to the schedule.

Bevins Trans. P. 207 L. 5-12 (emphasis

added)

(Bevins) A. And that first contract that

we had started September 3" and went

through the entire length of the agreement,

BUT BECAUSE IT WAS PREPAID, THAT

ORIGINAL CONTRACT WAS MODIFIED

EVERY TIME YOU PAID, BUT THERE

WAS A DATE OF January 30 that you

did not pay us, which we then ended that

42

contract ....which created a new contraci

number.

Bevins Trans. P. 208 L. 18-25 (emphasis

added)

(Watson) Q. Now, Sir, with regard to

these changes that you referred to as

modifications,

are they identified in the document entitled

“Broadcast Contract” as modified--

modifications?

(Bevins) A. It shows in the last ---when

the contract was changed.

Bevins Trans. P. 220 L. 19-25

And yet the Defendants’ Counsel continued

to allege only One Contract existed, the Court

held that ‘to the standard required by Summary

Judgment law’, the Defendants were entitled to

Summary Judgment of this issue of whether a

contract existed. There was no doubt that the

Defendants, Radio One by and through its

employees received payment of the Plaintiffs’ check

for the Broadcast of “Politically Damned” Talk

Radio for the two week perz6d beginning September

3'4 through September 17“ 2004 (see attached

Exhibit “__” check No. 2450 issued to and received

43

by the Defendants on 9-3-04 in the amount of

Eighteen Hundred Dollars ($1,800.00). This was

acknowledged to have been received by the

Defendants’ Agents in the usual course and scope of

delivery, custom and acceptance.

(Watson) Q. Okay, Now, at the time---I asked

you before about whether or not any

program had been cancelled for non-

payment and there’s been some,

correct?

(Bevins) A. Yes.

Q. But that was not the case with

“Politically Damned” Talk Radio, was

it:

It was not cancelled for non-payment?

A. That’s correct.

Bevins Trans. P.69, L.19-25 P.70, L

1-6.

(Watson) Q. You've indicated that you have

contracts with people. They do expire

on some occasion. When they expire,

what do you do ordinarily?

(Bevins)

(Bevins)

(Hlavaty)

a4

A. Well, it is at our discretion, if we

want to renew the agreement or no

longer have them on the air.

Q. I got it. But, you’ve told us earlier

that you never terminated anyone at

the end of their contract ever before,

EXCEPT “POLITICALLY

DAMNED”

TALK RADIO: THAT’S WHAT

YOU TOLD US, RIGHT?

A. That is correct.

Bevins Trans. P. 76 L. 14-25

A. Well, I have not terminated a

program or ended a contract other

than Politically Damned.

Bevins Trans. P. 82 L. 23-24

Mr. Ayad had apparently tendered a

check for another two week period.

The Friday evening, September 3",

after his show, he gave it to a Board

Operator. Your Honor, a Board

Operator typically is a young

gentleman or woman who works the

evening hours, acts merely as a Clerk

45

or Messenger, took the money, turned

it into the Station. Once the Station

realized it had the check, it

immediately returned it to Mr.

Ayad.

September 14, 2004 Temporary

Restraining Order Hearing

Transcript Page 23 Line 7-15.

At the time that this statement was made in

open Court, Counsel well knew that this was the

custom and practice of the Parties with regard to

payment for the Radio Broadcast. Further, THE

CHECK WAS NOT RETURNED UNTIL

SEPTEMBER 9, 2004 AFTER THE PROGRAM

HAD BEEN TERMINATED. It was not

immediately returned as was falsely alleged by

Counsel. Mr. Hlavaty further falsely presents to

this Honorable Court as follows:

(Hlavaty) Your Honor handing you what has

been marked as Defendants Exhibit

“A” that is a written Contract that was

entered into between Radio One and

Mr. Ayad back in September of 2003,

and you will see, in the very first

paragraph it says it begins on

September 5, 2003 and runs for a

46

period of fifty-two weeks. The

Contract, expired on or about

September 5, 2004, and Radio One

simply decided not to re-execute, re-

up, or renew the Contract.

September 14, 2004 Temporary

Restraining Order Hearing

Transcript Page 21 Line 8-16(see

Exhibit” ”)

However, at this time Mr. Hlavaty knew that

this Contract was for FIFTY-TWO (52) WEEKS

with the first week being September 1-5, 2003.

The Defendants themselves agree that the fifty-two

(52) week period began with the week of September

1- 5, 2003. THERE IS NO DOUBT THAT

“POLITICALLY DAMNED’ TALK RADIO’S ‘ (52)

FIFTY TWO WEEK ORIGINAL AGREEMENT

HAD EXPIRED WITH THE AUGUST 27, 2004

FRIDAY BROADCAST AND THAT THEY HAD

BROADCAST A FIFTY THIRD (53rd) WEEK

AUGUST 30, 2004 THRU SEPTEMBER 3, 2004

ON NO LESS THAN THE ROLLED-OVER NEXT

FIFTY-TWO(52) WEEKS OF CONTRACT!

(Ayad) Q. So how does WERE add 52 weeks?

(Bevins) A. We would look at the--I mzan, like,

for instance, if you had a Saturday

47

and Sunday show, it would be 52

Saturdays and Sundays; and if you

had a Monday thru Friday show, it

would be 52 Monday thru Friday

Shows.

Bevins Trans. P. 526 L. 17-25

By any calculation, {See Exhibit “___”

Calendar 2003-2004), when the first week of

broadcast is September 1-5, 2003 FIFTY-TWO (52)

WEEKS OF BROADCASTS ENDED THE WEEK

OF AUGUST 23,-27, 2004 AND EVEN BY THE

DEFENDANTS’ OWN FLAWED DEFENSE

THE ORIGINAL CONTRACT HAD ALREADY

ROLLED OVER!!!

(Watson) Q. I said this contract is in writing,

this money exchange, and there’s a

meeting of the minds for the original

one hour per week; isn’t that right?

(Bevins) A. Yes.

Q. Everybody agrees it’s one hour.

Now when it changed to more hours,

what I’m asking sir, is did you give

any written notice to Abe as to when

the additional hours would end,

written notice as to when they would

end?

A. No.

Q. Okay. So while you assumed on

your part, from what you are

testifying to that the additional hours

would end on September 3", is there

any way that you communicated and

agreed with Abe that those additional

hours would end on September 3"¢?

A. Yes. I called him on September 6

and explained to him that we were not

renewing his agreement.

Q. Okay, so the first time Abe had any

notice that his additional hours would

end on September 3" was on

September 6*?

A. That’s correct.

Bevins Trans. P. 529 L. 14-25 ,530

L.1-11

The Defendants Counsel, however, in open

Court falsely stated that the Contract for Broadcast

of “Politically Damned” Talk Radio had expired.

(Watson)

Q. I got it. So once you heard that on

those tapes'is when you immediately

cancelled us?

(Bevins)

(Watson)

(Bevins)

(Watson)

(Bevins)

49

A. Once I heard your content of your

program and the focus of your

program, I decided that we would no

longer extend your contract and

would execute the termination

clause in the contract.

Bevins Trans. P. 145 L. 2-8

Q. ...Did you send notice to Politically

Damned, Abe or myself, that you

intended to terminate the contract?

A .No. We did not terminate the

contract, the contract expired, and we

took that opportunity to no longer

continue our relationship..

Bevins Trans. P. 189 L. 7-16.

Q. Well, let me make sure I

understand it. Now, Politically

Damned didn’t know you weren't

continuing (the broadcasts) beyond

September 3". Bill Glover didn’t

know. Your radio operator didn’t

know. Nobody knew, except you.

A. And Linda Vilardo.

50

Bevins Trans. P. 190 L. 19-25 (PARENS

ADDED)

It is not difficult to Count the number of weeks

beginning with the week of September 1- 5, 2003,

which show that the fifty second(52nd) week

expired at the conclusion of the week of broadcast

August 22™ through August 28, 2004 (see Exhibit

“__ ” Calendar 2003-2004). For that entire

weekly Politically Damned broadcast Monday

through Friday as a week broadcast.

“Politically Damned” Talk Radio continued a

full weeks broadcast from August 29%, 2004

through September 3™, 2004 Monday through

Friday. THIS WAS WEEK NUMBER FIFTY-

THREE (53) OF BROADCAST FOR

“POLITICALLY DAMNED” TALK RADIO AND

WAS NO LESS THAN A ROLL OVER OF A

FIFTY -~TWO (62) ADDITIONAL WEEK

AGREEMENT. THIS WAS REPRESENTED AS

BEING IN EFFECT, BY ALL DEPOSED

DEFENDANTS’ EMPLOYEES, BY THIS

CONTINUED BROADCAST. THIS FACT AND

THAT THERE WAS A RECEIPT OF FUNDS

FOR THAT PERIOD (August 29, 2004 thru

September 3, 2004) and two weeks in advance

for the period of September 6, 2004 thru

September 17, 2004 further supports the

Plaintiffs’ position.

51

As both Bevins and Glover acknowledge

that there had never been a Time Brokered

Contract with Radio One, at any time, that did not

roll over automatically in its operation, it is clear

that the same circumstances SHOULD HAVE

applied to the Plaintiffs ALSO, BUT DID NOT!!!

While the Defendants allege that they

“Immediately” returned the check received on

September 3 at the conclusion of the FIFTY-

THIRD (53®P) WEEK, there was no question as to

the receipt of payment in full and broadcast

through week number fifty-three(53) (see Exhibit

“ _” with weeks numbered ). Further, it is clear

that the original Contract beginning September 3,

2003 was reissued as a new Contract with new

terms, conditions, payment dates and expiration

dates. As of January 2004 it contained a new

Contract number and was titled, “BROADCAST

CONTRACT”, a copy of which is attached hereto

and incorporated by reference as Exhibit “__”. ~All

of these terms and conditions continued to rotate on

a thirteen week basis by the position of the

Defendants and payment by the Plaintiffs. There

is no doubt that these circumstances existed.

These statements identify clearly that there was

more than one contract in effect between the

parties. Further proof that a new contract was

rewritten for a 12 month period beginning January

2004 through January of 2005 was attached to the

52

Affidavit of Brahim (Abe) Ayad. Section 201(2)

of the Restatement of Law 2d, Contracts

(1979), provides:

Where the parties have attached different

meanings to a promise or agreement or a

term thereof, it is interpreted in accordance

with the meaning attached by one of them if

at the time the agreement was made a) that

party did not k.:ow of any different meaning

attached by the other, and the other knew

the meaning attached by the first party; or(b)

that party had no reason to know of any

different meaning attached by the other, and

the other had reason to know the meaning

attached by the first party. LaCONTE ENT.

v. CUYAHOGA CTY., 145, App. Ohio216

(2003)

EVEN THE DEFENDANT BEVINS

ACKNOWLEDGES THAT MORE THAN ONE

CONTRACT EXISTED. David Bevins on the

taped conversation admits that there was more

than one contract contrary to the

representations of his lawyers on behalf of the

Defendants;

(Bevins) Well, what’s going on is we

had a 52-week agreement that Abe had

signed that expired on September 5,

53

which was yesterday, so that Agreement

has expired, which we were no longer

going’ to renew and continue the show

based! on that agreement expiring. The

other situation is the other (agreements)

—the wmther programs that were on the air

were dlay-to-day, week-to-week, type of a

program which we decide that we were

no lomger going to have aired on our

radio station.

So, we decided to take the opportunities,

since ithe contract expired yesterday, to

basically end the relationship between

your program and WERE.

(Watson) Isee. Well, actually, Pma

little bit confused, because the original

Agreement was modified, it was

origimally for an hour, and then that

Got modified to turn into every week and

even before the contract expired, Abe

had paid up for the next two weeks.

(Bevins) Well, the original agreement

was a 52 week program that was for

Friday.

(Watson) Yeah, but just one hour.

54

(Bevins) Right. And then, and then,

and then other, hours or programming

That was part of that were a day-to-day

week-to-week type of situation we

allowed to have happened based on pre-

payments and it was in— and even in the

agreement it states that we, at the

station, can terminate the agreement as

we see fit basically at any time.

Phone trans Page 10 Line 3-25, Page 11

Line 1-6.

(The Court) However, I do believe that

the issues of whether the contract at all

was breached, be it oral or written, is a

question of fact for a Jury.,...

Transcript Page 34 Line 17-20. Judge

William J. Coyne 9-14-04

These abhorrent determinations by the Ohio

Courts reflect that it was only the demand of

Abe Foxman, National Chairman of the Anti-

Defamation League that removed the

Plaintiffs from their broadcast contract with

his claims that it was “The Worst Anti-

Semitism that I have ever heard” and his

demand that “Politically Damned’ Talk Radio

be removed from the air, that cancelled the

35

broadcast. The Trial Court was intimidated by

the power of these Jews. The Eighth District Court

of Appeals decision was a mockery of justice and

OVERRULED THE STANDARD OF

SUMMARY JUDGMENT IN THE STATE OF

OHIO AND AS HAS BEEN PREVIOUSLY AND

SUBSEQUENTLY UPHELD BY THE UNITED

STATES SUPREME COURT!!! The ADL

demanded the cancellation and the Ohio

Courts censored what was falsely alleged to

be “ANTI-SEMITISM”.

CONCLUSION

The Petition for Writ of Certiorari must be

granted in the interest of justice and to protect the

integrity of the Fourteenth and First Amendments.

Respectfully Submitted,

Dyna" = L AN

Brahim (Abe) Ayad, Pro Se

aka “Politically Damned

Talk Radio”

4523 Camillia Lane

North Olmsted, Ohio 44070

(440) 724-6523

i Troy (Mike) Watson,

ProSe aka “Politically Damned

alk Radio”

1502 East 172™4 St

Cleveland, Ohio 44110

(216) 322-4183

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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