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Filed on 02/20/2015 at 03:23 PM in Wayne County, Ohio
IN THE WAYNE COUNTY MUNICIPAL COURT
WOOSTER, OHIO
JAMES P. CARTER ) Case No. 2014-CV-F-1171
Plaintiff ) Judge VanSickle
ve )
KAYE J. JOHNSON ) MOTION FOR RECONSIDERATION
Defendant )
For the reasons set forth in the attached memorandum, Defendant Kaye Johnson, by and
through counsel Attorney David M. Todaro, respectfully requests that this Court vacate its order
dated February 11" and reinstate the Court’s grant of Summary Judgment to the Defendant.
RESPECTFULLY SUBMITTE,
_David M. Todaro, Esq.
126 North Walnut St.
Wooster, Ohio 44691
Phone: (330) 262-2911
Fax: (330) 264-2977
Email: davidmtodaro@aol.com
Counsel for Defendant Kaye JohnsonFiled on 02/20/2015 at 03:23 PM in Wayne County, Ohio
MEMORANDUM IN SUPPORT
In its order filed February 11", this Court noted that upon the Plaintiff's Motion for
Findings of Fact and Conclusions of Law, that it found that the order granting Defendant
summary judgment was issued in error, as the Court had already ordered a hearing to determine
Defendant’s damages and to determine the merit of Plaintiff's claims. Nevertheless, at the time
this order was entered, the Court’s judgment was already final. This is because while Plaintiff
had numerous avenues through which to operate, yet failed to take advantage of them, starting
first with his failure to appeal.
Pursuant to Rule 4(A)(1) of the Ohio Rules of Appellate Procedure:
“A party who wishes to appeal from an order that is final upon its entry (such as
an order granting summary judgment), the party shall file the notice of appeal
required by App.R. 3 within 30 days of that entry”.
The only exceptions to this standard, as set forth in Rule 4(B), are when there are
motions/requests pending, such as a motion for a new trial, an objection to a magistrate’s
decision or, as is the case here, a “request for findings of fact and conclusions of law” under
Civil Rule 52 or Civil Rule 53(D)(3)(aii).
Notwithstanding, while Defendant concedes that Plaintiff's Request was filed within the
30 days, the Motion itself was not entitled to this Court’s review under both the Rules of
Appellate Procedure and the Rules of Civil Procedure. As was set forth above, under the Rules of
Appellate Procedure, a request for findings only “stops the clock” to the extent that it is
completed under the terms set forth in Civil Rule 52 or Civil Rule 53. Nevertheless, Rule 52
dictates that:
“Findings of fact and conclusions of law required by this rule and by Rule
41(B)(2) are unnecessary upon all other motions including those pursuant to Rule
12 (Motion for Judgment on the Pleadings), Rule 55 (Motion for Default
Judgment) and Rule 56 (Motion for Summary Judgment)”.Filed on 02/20/2015 at 03:23 PM in Wayne County, Ohio
This motion, was not enough to “stop the clock” by itself, nor was there any
accompanying motion filed that would’ ve allowed for that purpose. What is more, even if it had
been a valid motion, Plaintiff also neglected to serve a copy of his Motion for Findings of Fact
and Conclusions of Law on Defense counsel consequently giving the Defendant no opportunity
to respond. As such, Defendant has no appeal of right and the order granting Defendant’s Motion
for Summary Judgment is a final order.
Given that the January 5", 2015 order is the Court’s final order, the only other way
Plaintiff would be entitled to have the order granting Defendant’s Motion for Summary
Judgment vacated was a filing made under the terms of Rule 60(b) of the Ohio Rules of Civil
Procedure. That was not done either however. Rule 60(b) provides that:
“On motion and upon such terms as are just, the court may relieve a party or his
legal representative from a final judgment, order or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable neglect, (2) newly
discovery evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation or other misconduct of an
adverse party; (4) the judgment has been satisfied, released or discharged, or a
prior judgment upon which it is based has been reversed or otherwise vacated, or
it is no longer equitable that the judgment should have prospective application; or
(5) any other reason justifying relief from the judgment”.
Nevertheless, while there can be no argument made that there was newly discovered
evidence, fraud, misrepresentation or that the judgment has been satisfied, what the Plaintiff
could and would potentially allege that there was an mistake committed by this Court. More
specifically, Plaintiff would argue that it was a mistake for the court to award Summary
Judgment in favor of the Defendants when it had already ordered a hearing set on Plaintiff's
claims and Defendant’s damages in its September 16" judgment entry. Nevertheless, while there
is nothing to prohibit the argument to be made, it is still without merit.Filed on 02/20/2015 at 03:23 PM in Wayne County, Ohio
In its September 16", 2014 order, this Court made sure to articulate in detail its rationale
for setting an additional hearing on the matter, and that was to “avoid the possibility of
inconsistent judgments”. With that being said however, the entry was drafted at a point in which
the discovery process was still ongoing. It was this same discovery process or lack thereof which
later made possible the granting of summary judgment in favor of the Defendant, pursuant to
Ohio Rule of Civil Procedure 36(a)(1).
As this Court is aware, Ohio Rule of Civil Procedure 36(a)(1) provides when an opposing
party is presented with a Request for Admission, the matter shall be deemed admitted unless:
“Within a period designated in the request, not less than twenty-eight days after
service of the request or within such shorter or longer time as the court may allow,
the party to whom the request is directed serves upon the party requesting the
admission a written answer or objection addressed to the matter, signed by the
party or by the party’s attorney”.
which is exactly what occurred. In the case at hand, Plaintiff was provided, via certified mail, the
Defendant’s Requests for Admissions, Interrogatories and Requests for Production of
Documents on October 6" at 12:40 pm, when they were dropped off at the front counter of the
Wooster branch of the USPS. These same documents were then certified by the United States
Postal Service as having been delivered to the Plaintiff at his address of record on October 14" at
3:25 pm (see attached certificate). Notwithstanding, while Plaintiff was provided ample time, he
neither provided his answer nor contacted counsel about the possibility of an extension. In fact,
even as of the date of this drafting, Plaintiff has still failed to provide Defendant’s counsel his
discovery responses.
As a result of this failure to provide Defendant with discovery, Plaintiff effectively admitted
that the property formerly occupied by the Defendant was in fact re-rented during the month of April,
2014, the same month in which the Defendant and her occupants vacated the property. It was this
very same admission that in turn made the order setting the hearing moot, because it allowed theFiled on 02/20/2015 at 03:23 PM in Wayne County, Ohio
Defendant to be awarded summary judgment against all of Plaintiff's claims and to also be awarded
damages for the Defendant’s counterclaim. There was no error in cancelling the hearing after the
grant of summary judgment, because at that point there was nothing left to discuss, there were
damages to be awarded, but those damages were solely in favor of the Defendant. As such there was
no possibility of inconsistent judgments on the matter of damages.
To allow this case to continue to a hearing on the merits would allow nothing more than for
the Plaintiff to mislead this Court, much the same way he has attempted to mislead Defense counsel
throughout the duration of this case. To give this Court some context, Plaintiff requested copies of
the Defendant’s Answers to Plaintiff's Requests for Discovery not less than four times, claiming each
time that he had never received them, despite certifications from USPS that he received them and on
one occasion a receipt evidencing his signing for them (see attached correspondence).
The Plaintiff failed in the following ways:
1. He failed to file a notice of appeal;
2. He failed to file a motion that would otherwise extend the deadline for filing
an appeal;
3. He failed to provide counsel with a copy of his Motion for Findings of Fact
and Conclusions of Law;
4. Failed to provide for any type of Rule 60(b), and;
5. He has still failed to provide counsel his answers to Defendant’s Requests for
Discovery.
There was absolutely no error in granting summary judgment in favor of the Defendants and
there was no error in cancelling the hearing that was previously ordered. As such, counsel would
respectfully request that this Court rescind its February 11" order, reinstate its grant of summary
judgment in favor of the Defendant and cancel the trial currently set for February 23" at 9:00 am.Filed on 02/20/2015 at 03:23 PM in Wayne County, Ohio
RESPECTFULLY SUBMITTED,
a“ Y 2S
avid M. Todaro, Esq.
126 North Walnut St.
Wooster, Ohio 44691
Phone: (330) 262-2911
Fax: (330) 264-2977
Email: davidmtodaro@aol.com
Counsel for Defendant Kaye Johnson
PROOF OF SERVICE
A copy of the foregoing Motion for Reconsideration was served on the Plaintiff James
Carter via regular US Mail at 4157 Maidstone Lane, Medina, OH 44256 this 20" day of
February, 2015.
Davitt M. Todaro, Esq. (0075851)
126 North Walnut St.
Wooster, Ohio 44691
Phone: (330) 262-2911
Fax: (330) 264-2977
Email: davidmtodaro@aol.com
Counsel for Defendant Kaye JohnsonFiled on 02/20/2015 at 03:23 PM in Wayne County, Ohio
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https://tools.usps.com/go/TrackConfirmAction?tLabels=70 1405 0000202173582 12/29/2014DAVID M. TODARO CO., LPA
re
David M. Todaro, Esq. 126 North Walnut Street
Attorney at Law Wooster, Ohio 44691
davidmtodaro@aol.com Phone: (330)262-2911
Fax: (330)264-2977
December 1, 2014 Toll Free: (866)562-2911
Mr. James Carter
4157 Maidstone Lane
Medina, Ohio 44256
Subject: Case No. 2014-CV-F-001171
James Carter v. Kaye Johnson
Dear Mr. Carter,
As a follow up to your message dated November 28", please find attached to this email, Defendant's
Response to Plaintiff's First Set of Requests for Admission, Interrogatories and Requests for Production.
In addition to attaching them to this email, ! will also be mailing these materials to you later this afternoon
via regular US Mail which you should receive later this week. Please be aware however, this is now the
fourth and fifth times that I have made these materials available to you.
As | indicated to you in my prior email, the first time I mailed you these materials via certified mail. The
postal worker attempted to deliver your item on November 4". Nevertheless, because no one was
apparently home at the time, they instead left a notice for you indicating that you had a package to pick
up, a package which is still waiting for you at the post office. I verbally communicated this fact to you at
the pre-trial on November 10", 2014.
I then made these documents available to you after the pre-trial on November 10", when you informed me
that you would be stopping by to pick them up and discuss possible settlement. Again though, for
whatever reason, you never stopped by my office.
Finally, per your email on November 24", you requested I mail the discovery materials to you certified
mail, retum receipt requested. On November 25" I complied with your request and mailed the discovery.
According to USPS tracking, these materials were delivered to you, and you signed for them on
November 26", two days before your email (see attached).
Sincerely,
7
David M. Todaro, Esq.
DMT/km
Enclosures
Preview
Filed on 02/20/2015 at 03:23 PM in Wayne County, Ohio IN THE WAYNE COUNTY MUNICIPAL COURT WOOSTER, OHIO JAMES P. CARTER ) Case No. 2014-CV-F-1171 Plaintiff ) Judge VanSickle ve ) KAYE J. JOHNSON ) MOTION FOR RECONSIDERATION Defendant ) For the reasons set forth in the attached memorandum, Defendant Kaye Johnson, by and through counsel Attorney David M. Todaro, respectfully requests that this Court vacate its order dated February 11" and reinstate the Court’s grant of Summary Judgment to the Defendant. RESPECTFULLY SUBMITTE, _David M. Todaro, Esq. 126 North Walnut St. Wooster, Ohio 44691 Phone: (330) 262-2911 Fax: (330) 264-2977 Email: davidmtodaro@aol.com Counsel for Defendant Kaye JohnsonFiled on 02/20/2015 at 03:23 PM in Wayne County, Ohio MEMORANDUM IN SUPPORT In its order filed February 11", this Court noted that upon the Plaintiff's Motion for Findings of Fact and Conclusions of Law, that it found that the order granting Defendant summary judgment was issued in error, as the Court had already ordered a hearing to determine Defendant’s damages and to determine the merit of Plaintiff's claims. Nevertheless, at the time this order was entered, the Court’s judgment was already final. This is because while Plaintiff had numerous avenues through which to operate, yet failed to take advantage of them, starting first with his failure to appeal. Pursuant to Rule 4(A)(1) of the Ohio Rules of Appellate Procedure: “A party who wishes to appeal from an order that is final upon its entry (such as an order granting summary judgment), the party shall file the notice of appeal required by App.R. 3 within 30 days of that entry”. The only exceptions to this standard, as set forth in Rule 4(B), are when there are motions/requests pending, such as a motion for a new trial, an objection to a magistrate’s decision or, as is the case here, a “request for findings of fact and conclusions of law” under Civil Rule 52 or Civil Rule 53(D)(3)(aii). Notwithstanding, while Defendant concedes that Plaintiff's Request was filed within the 30 days, the Motion itself was not entitled to this Court’s review under both the Rules of Appellate Procedure and the Rules of Civil Procedure. As was set forth above, under the Rules of Appellate Procedure, a request for findings only “stops the clock” to the extent that it is completed under the terms set forth in Civil Rule 52 or Civil Rule 53. Nevertheless, Rule 52 dictates that: “Findings of fact and conclusions of law required by this rule and by Rule 41(B)(2) are unnecessary upon all other motions including those pursuant to Rule 12 (Motion for Judgment on the Pleadings), Rule 55 (Motion for Default Judgment) and Rule 56 (Motion for Summary Judgment)”.Filed on 02/20/2015 at 03:23 PM in Wayne County, Ohio This motion, was not enough to “stop the clock” by itself, nor was there any accompanying motion filed that would’ ve allowed for that purpose. What is more, even if it had been a valid motion, Plaintiff also neglected to serve a copy of his Motion for Findings of Fact and Conclusions of Law on Defense counsel consequently giving the Defendant no opportunity to respond. As such, Defendant has no appeal of right and the order granting Defendant’s Motion for Summary Judgment is a final order. Given that the January 5", 2015 order is the Court’s final order, the only other way Plaintiff would be entitled to have the order granting Defendant’s Motion for Summary Judgment vacated was a filing made under the terms of Rule 60(b) of the Ohio Rules of Civil Procedure. That was not done either however. Rule 60(b) provides that: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect, (2) newly discovery evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment”. Nevertheless, while there can be no argument made that there was newly discovered evidence, fraud, misrepresentation or that the judgment has been satisfied, what the Plaintiff could and would potentially allege that there was an mistake committed by this Court. More specifically, Plaintiff would argue that it was a mistake for the court to award Summary Judgment in favor of the Defendants when it had already ordered a hearing set on Plaintiff's claims and Defendant’s damages in its September 16" judgment entry. Nevertheless, while there is nothing to prohibit the argument to be made, it is still without merit.Filed on 02/20/2015 at 03:23 PM in Wayne County, Ohio In its September 16", 2014 order, this Court made sure to articulate in detail its rationale for setting an additional hearing on the matter, and that was to “avoid the possibility of inconsistent judgments”. With that being said however, the entry was drafted at a point in which the discovery process was still ongoing. It was this same discovery process or lack thereof which later made possible the granting of summary judgment in favor of the Defendant, pursuant to Ohio Rule of Civil Procedure 36(a)(1). As this Court is aware, Ohio Rule of Civil Procedure 36(a)(1) provides when an opposing party is presented with a Request for Admission, the matter shall be deemed admitted unless: “Within a period designated in the request, not less than twenty-eight days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party’s attorney”. which is exactly what occurred. In the case at hand, Plaintiff was provided, via certified mail, the Defendant’s Requests for Admissions, Interrogatories and Requests for Production of Documents on October 6" at 12:40 pm, when they were dropped off at the front counter of the Wooster branch of the USPS. These same documents were then certified by the United States Postal Service as having been delivered to the Plaintiff at his address of record on October 14" at 3:25 pm (see attached certificate). Notwithstanding, while Plaintiff was provided ample time, he neither provided his answer nor contacted counsel about the possibility of an extension. In fact, even as of the date of this drafting, Plaintiff has still failed to provide Defendant’s counsel his discovery responses. As a result of this failure to provide Defendant with discovery, Plaintiff effectively admitted that the property formerly occupied by the Defendant was in fact re-rented during the month of April, 2014, the same month in which the Defendant and her occupants vacated the property. It was this very same admission that in turn made the order setting the hearing moot, because it allowed theFiled on 02/20/2015 at 03:23 PM in Wayne County, Ohio Defendant to be awarded summary judgment against all of Plaintiff's claims and to also be awarded damages for the Defendant’s counterclaim. There was no error in cancelling the hearing after the grant of summary judgment, because at that point there was nothing left to discuss, there were damages to be awarded, but those damages were solely in favor of the Defendant. As such there was no possibility of inconsistent judgments on the matter of damages. To allow this case to continue to a hearing on the merits would allow nothing more than for the Plaintiff to mislead this Court, much the same way he has attempted to mislead Defense counsel throughout the duration of this case. To give this Court some context, Plaintiff requested copies of the Defendant’s Answers to Plaintiff's Requests for Discovery not less than four times, claiming each time that he had never received them, despite certifications from USPS that he received them and on one occasion a receipt evidencing his signing for them (see attached correspondence). The Plaintiff failed in the following ways: 1. He failed to file a notice of appeal; 2. He failed to file a motion that would otherwise extend the deadline for filing an appeal; 3. He failed to provide counsel with a copy of his Motion for Findings of Fact and Conclusions of Law; 4. Failed to provide for any type of Rule 60(b), and; 5. He has still failed to provide counsel his answers to Defendant’s Requests for Discovery. There was absolutely no error in granting summary judgment in favor of the Defendants and there was no error in cancelling the hearing that was previously ordered. As such, counsel would respectfully request that this Court rescind its February 11" order, reinstate its grant of summary judgment in favor of the Defendant and cancel the trial currently set for February 23" at 9:00 am.Filed on 02/20/2015 at 03:23 PM in Wayne County, Ohio RESPECTFULLY SUBMITTED, a“ Y 2S avid M. Todaro, Esq. 126 North Walnut St. Wooster, Ohio 44691 Phone: (330) 262-2911 Fax: (330) 264-2977 Email: davidmtodaro@aol.com Counsel for Defendant Kaye Johnson PROOF OF SERVICE A copy of the foregoing Motion for Reconsideration was served on the Plaintiff James Carter via regular US Mail at 4157 Maidstone Lane, Medina, OH 44256 this 20" day of February, 2015. Davitt M. Todaro, Esq. (0075851) 126 North Walnut St. Wooster, Ohio 44691 Phone: (330) 262-2911 Fax: (330) 264-2977 Email: davidmtodaro@aol.com Counsel for Defendant Kaye JohnsonFiled on 02/20/2015 at 03:23 PM in Wayne County, Ohio USPS.com® - USPS Tracking™ Page 1 of 2 Engtien Customer Service USPS Mobile Ragieter 1 Sign tn EaUSPS.COM Customer Service » Have questions? We're here to help. USPS Tracking™ Tracking Number: 70140540000202173582 Expected Delivery Day: Tuesday, October 7, 2014 Product & Tracking Information Available Actions Postal Product: Features: First-Class Mai® Certified Mail™ Return Receipt After Mailing DATE & TIME STATUS OF TEM Locaniow October 14, 2014 , 3:25 pm Delivered MEDINA, OH 44286 ‘Your hem was delivered at 3:25 pm on October 14, 2014 in MEDINA, OH 44256. October 7, 2014, 8:31 am Out for Delivery MEDINA, OH 44256 October 7, 2014, 8:21 am Sorting Complete MEDINA, OH 44256 ‘October 7, 2014 . 6:50 am ‘Artived at Unit MEDINA, OH 44256 October 7, 2014, 2:49 am Poa M USPS Onin AKRON, OH 44308 ‘October 6, 2014 , 10:48 pm Feat Oars Oren CLEVELAND, OH 44101 October 6, 2014 , 12:40pm Acceptance WOOSTER, OH 44691 Track Another Package Tracking (or receipt) number [ Track it HELPFUL LINKS ON ABOUT.USPS.COM OTHER USPS SITES LEGAL INFORMATION Contact Us About USPS Home Business Customer Gateway Privacy Policy Site Index Newsroom Postal inspectors Terma of Use FAQs USPS Service Updates Inspector General FOIA Forms & Publications Postal Explorer No FEAR Act EEO Data Govemment Sences ‘National Postal Musou Carvers Resources for Developers Copyright © 2014 USPS. Ali Rights Reserved https://tools.usps.com/go/TrackConfirmAction?tLabels=70 1405 0000202173582 12/29/2014DAVID M. TODARO CO., LPA re David M. Todaro, Esq. 126 North Walnut Street Attorney at Law Wooster, Ohio 44691 davidmtodaro@aol.com Phone: (330)262-2911 Fax: (330)264-2977 December 1, 2014 Toll Free: (866)562-2911 Mr. James Carter 4157 Maidstone Lane Medina, Ohio 44256 Subject: Case No. 2014-CV-F-001171 James Carter v. Kaye Johnson Dear Mr. Carter, As a follow up to your message dated November 28", please find attached to this email, Defendant's Response to Plaintiff's First Set of Requests for Admission, Interrogatories and Requests for Production. In addition to attaching them to this email, ! will also be mailing these materials to you later this afternoon via regular US Mail which you should receive later this week. Please be aware however, this is now the fourth and fifth times that I have made these materials available to you. As | indicated to you in my prior email, the first time I mailed you these materials via certified mail. The postal worker attempted to deliver your item on November 4". Nevertheless, because no one was apparently home at the time, they instead left a notice for you indicating that you had a package to pick up, a package which is still waiting for you at the post office. I verbally communicated this fact to you at the pre-trial on November 10", 2014. I then made these documents available to you after the pre-trial on November 10", when you informed me that you would be stopping by to pick them up and discuss possible settlement. Again though, for whatever reason, you never stopped by my office. Finally, per your email on November 24", you requested I mail the discovery materials to you certified mail, retum receipt requested. On November 25" I complied with your request and mailed the discovery. According to USPS tracking, these materials were delivered to you, and you signed for them on November 26", two days before your email (see attached). Sincerely, 7 David M. Todaro, Esq. DMT/km Enclosures