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.