PLED. ^u P'l-:;LK^ ^^^u R"I 0 F 0H10 IN THE SUPREME COURT OF OHIO. Michael MINDLIN. and. Supreme Court Case No

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1 ; IN THE SUPREME COURT OF OHIO Michael MINDLIN and Elizabeth KURILA, Plaintiff-Appellees, vs. Eileen ZELL, Defendant/Th ird-party Plaintiff-Appellant Supreme Court Case No On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals Case No. 11-AP vs. David Dale SUTTLE, Third-Party Defendant Appellee APPELLEES' SECOND MEMORANDUM IN RESPONSE. OF JURISDICTION OF APPELLANT EILEEN ZELL JONATHAN R. ZELL ( ) (COUNSEL OF RECORD) 5953 Rock Hill Road Columbus, OH com Counselfor Defendant/Third-Party Plaintiff-Appellant Eileen Zell GREGORY S. PETERSON ( ) (COUNSEL OF RECORD) ISTVAN GAJARY ( ) PETERSON, CONNERS, FERGUS & PEER, LLP Two Miranova Place, Suite 330 Columbus, OH Office: Fax: Counsel for Plaintiff-Appellees and Third-Party Defendant Appellee PLED MIAR ^u P'l-:;LK^ ^^^u R"I 0 F 0H10

2 SUMMARY In counsel for Appellant's second filing with this honorable Court, he again inaccurately relays the events in this case and attempts to mislead this Court with baseless rhetoric claiming that the lower courts have turned the rule of law upside down and committed wholesale violations of the Appellant's constitutional and due process rights. None of which are true. Although counsel for the Appellant raises some new issues, other issues raised by this filing are identical to ones previously raised by him in Supreme Court Case No filed with this Court on December 10, For ease of reference, counsel for Appellant's overlapping arguments are incorporated into this appeal. Appellee has maintained, in arguments before the Franklin County Court of Common Pleas, the Tenth District Court of Appeals, and now before this honorable Court, that the issue in this case is simply a time-barred attempt by the Appellant to collect a debt owed on a promissory note (the "Note") that is governed by Ohio law. The Note, originally signed by the Appellees on January 30, 2001, was payable on or before December 31, Promissory notes are governed by the Uniform Commercial Code and are negotiable instruments under Chapter 1303 of the Revised Code. When the Note was not paid in full by December 31, 2001, it was in default and Ohio's six-year statute of limitations for promissory notes contained in R.C (A) made this debt obligation enforceable until December 31, On October 12, 2010, the Appellees filed a declaratory judgment action seeking a judicial determination of the enforceability of the Note and later moved for summary judgment on the theory that the Note was unenforceable under Ohio's six-year statute of limitations. By way of granting Appellee's Motion for Summary Judgment, the trial court concluded the Note was time barred from enforcement and the Tenth District Court of Appeals, on four occasions in decisions rendered on August 7, 2012, (Page 2 of 13)

3 October 25, 2012, December 31, 2012, and February 12, 2012 reviewed and affirmed this conclusion. However, Appellant has submitted volumes of paperwork and repeatedly requested extensions to file in excess of the page limitations in an attempt to confuse the simple issue in this case. Appellant has once again submitted irrelevant and unauthenticated correspondence between the parties in a desperate attempt to define several "side agreements" between the parties. Appellant maintains these "side agreements" extended or otherwise tolled the statute of limitations on the Note. These unenforceable exchanges can be characterized, at best, as negotiations and a failed attempt to come to an agreement about the debt obligation. No actual agreement was ever reached, a fact repeatedly found by the lower courts. Additionally, in reference to Appellee's Complaint and response to Admissions, counsel fails to appreciate that a party can maintain inconsistent positions in his pleadings. As stated in Civ.R. 8(E)(2), "[a] party may set forth two or more statements of a claim or defense alternatively or hypothetically * * * A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds." Therefore, regardless of the pleadings and the multitude of written correspondence between the parties, both lower courts have repeatedly held that the Note is barred by Ohio's statute of limitations for negotiable instruments as expressed in R.C (A). Further, Appellant has filed numerous applications for reconsideration far beyond what is permitted by either the Ohio Rules of Civil Procedure or the Ohio Rules of Appellate Procedure. The following is a list of such filings that are outside the rules: (Page 3 of 13)

4 Type of Filing Court Date Filed Doe. No. Motion for Reconsideration Franklin County Court of Common Pleas Motion for Reconsideration Franklin County Court of Common Pleas Application for Reconsideration Tenth District Court of (Second) Appeals Application for Reconsideration Tenth District Court of (Third) Appeals As can be seen by examining the Tenth District Court of Appeal's decisions, counsel for the Appellant has repeatedly and inaccurately relayed both the events in this case and the reasoning used in those decisions. Indeed, as the Tenth District Court of Appeals has noted in its most recent decision rendered on February 12, 2013, counsel for the Appellant's latest filing "is virtually identical to her previous two applications in that it relies on misrepresentations of our prior decisions and merely disagrees with our holding that she failed to preserve several arguments in the trial court." Mindlin v. Zell, 10th Dist. No. 11AP-983 (Feb. 12, 2012), 1 (Memorandum decision). Counsel for the Appellant now wishes to perpetuate his misrepresentations and disagreements with this honorable Court. For the following reasons, he presents no substantial constitutional question and cannot show that this case is of public or great general interest. STATEMENT OF APPELLEE'S POSITION WHETHER A SUBSTANTIAL CONSTITUTIONAL QUESTION IS INVOLVED OR WHETHER THE CASE IS OF PUBLIC OR GREAT GENERAL INTEREST The Appellant brings this appeal both under S.Ct. Prac. R. 2.1(A)(2) as a claimed appeal of right, and under S.Ct. Prac. R. 2.1(A)(3) as a discretionary appeal. As a claimed appeal of right, appellant must show that this case presents a substantial constitutional question, and under a discretionary appeal, that this case involves a question of public or great general interest. The (Page 4 of 13)

5 main thrust of Appellant's Memorandum in Support of Jurisdiction is that the Tenth District made a mistake in holding that Appellant did not raise any arguments that the statute of limitations was tolled. Counsel for the Appellant claims that he made these arguments, but the Tenth District denied that he made them. Counsel for the Appellant urges this honorable Court to accept the proposition that the evidence in the record proves that the due date on the Note had been extended. To support this, counsel for the Appellant points to the volumes of correspondence between the parties to show that a "side agreement" was reached to extend or otherwise toll the statute of limitations on the Note. However as noted above, these unenforceable exchanges can be characterized, at best, as negotiations and a failed attempt to come to an agreement about the debt obligation. No actual agreement was ever reached. Counsel for the Appellant cannot point to any execute agreement -extending the due date on the Note, a fact repeatedly found by the lower courts. None of Appellant's five Propositions of Law that counsel for the Appellant raises in this Memorandum in Support of Jurisdiction present either a substantial constitutional question or a question of public or great general interest. As justification for Supreme Court jurisdiction, he simply claims that the lower courts have misstated the facts and refused to consider his tolling arguments. After having five chances to make his case before the lower courts (once with the Franklin County Court of Common Pleas and four times before the Tenth District Court of Appeals), he is seeking yet another forum to express his "dissatisfaction with the logic used and conclusions reached by [the lower courts]." In re I.T.A., 7th Dist. No. 11 BE 27, 2012-Ohio- 2438, 5. As such, the Supreme Court should deny the Appellant's request for jurisdiction in this simple matter. (Page 5 of 13)

6 APPELLEE'S POSITION REGARDING EACH PROPOSITION OF LAW RAISED IN EILEEN ZELL'S SECOND MEMORANDUM IN SUPPORT OF JURISDICTION A careful examination of Appellant's Propositions of Law in this second appeal reveals that they are either legal conclusions related to this case, or merely restatements of existing cases or established principles of law. As such, Appellant is not raising any new or unique propositions of law. Counsel for the Appellant's first three Propositions of Law simply recite legal conclusions, which the Franklin County Court of Common Pleas and the Tenth District Court of Appeals have rejected in several decisions. Counsel for Appellant's last two Propositions of Law cite to existing law and claims that the Tenth District Court of Appeals failed to apply existing law to the facts of his case. As mentioned above, counsel for the Appellant states that he made credible tolling of the statute of limitations arguments that the Court of Appeals failed to consider. For the following reasons, and as more fully explained in the Tenth District's Memorandum Decision rendered on December 31, 2012, the Tenth District did consider his tolling arguments and found them to be without merit. In any case, such arguments are not advancing any new propositions of law and, therefore, do not involve either a substantial constitutional question or a question of public or great general interest. Proposition of Law No. I In Appellant's Memorandum in Support of Jurisdiction, Proposition of Law No. I is described as "All the Evidence Refutes the SOL Defense." Such a statement is not a proposition of law, but a legai conclusion that expresses counsel for the Appellant's disagreement with the lower courts' decisions. For this reason alone, Proposition of Law No. I should be denied. (Page 6 of 13)

7 Just like in the lower courts, counsel for the Appellant goes on for the next four and a half pages recounting the volumes of correspondence between the parties to show that a "side agreement" was reached to extend or otherwise toll the statute of limitations on the Note. Such correspondence, however, does not prove that there was ever an agreement reached. At best, these exchanges show the parties failed attempts at negotiating an agreement about the debt obligation. No actual executed agreement extending the due date on the Note was ever reached. Therefore, Appellant's Proposition of Law No. I should be denied because it is not a proposition of law and, in spite of counsel for the Appellant's four and a half pages of correspondence and rhetoric, there was no agreement to extend or toll the statute of limitations on the Note. Proposition of Law No. II Appellant's Proposition of Law No. II also is not a proposition of law. Appellant's Proposition of Law No. II states, "The SOL Could Not Have Expired Because the Note Was Extended." Counsel for the Appellant goes on to claim that he persuasively argued that the Note was extended, but the Tenth District "found a way to ignore this argument, using sophistry more suited to a magician." Memo. in Support of Jurisdiction, at Pg. 10. Next, counsel for the Appellant selectively quotes from the Tenth District's decision rendered December 31, By doing so, he suggests, "the court blatantly misstated Mrs. Zell's argument, falsely claiming that it was based on a statute, R.C (B)(4)." Id. Finally, counsel for the Appellant points to arguments he made in his Memorandum Contra to Appellee's Summary Judgment Motion and concludes "that it was doubly unnecessary for Mrs. Zell to cite R.C (B)(4) to prove that (Page 7 of 13)

8 the due date of the parties' Note could be extended." Id. By doing so, he suggests that R.C (B)(4) was the only issue on appeal. However, the full text of the Tenth District's rejection of counsel for the Appellant's arguments reveal several other reasons for the Court's rejection: Appellant presents a variety of alternative arguments for reversal as to why the promissory note was timely under Ohio law. She claims (1) appellees waived any statute-of-limitations defense by not asserting it until the filing of their motion for summary judgment, (2) the trial court should have applied the 15-year statute of limitations for written contracts in R.C rather than the six-year period in R.C (A), and (3) even if R.C (A) did apply, the limitations period was tolled by operation of R.C , , and reset by R.C (B)(4). Appellant did not, however, raise any of these arguments in the trial -court. Instead, she devoted her 30-page memorandum opposing summary judgment to arguments regarding why her counterclaim was timely under Missouri Law, without asserting any waiver or tolling arguments under Ohio law. As can be seen, counsel for the Appellant's failure to cite R.C (B)(4) was not the only reason for the Tenth District's denial of his appeal. The Tenth District has addressed similar misleading arguments by counsel for the Appellant in its decision rendered December 31, 2012 when it said: Appellant's latest application misrepresents several statements from our October 25, 2012 decision denying her first application for reconsideration. For instance, appellant states that our October 25, 2012 decision "concedes that [appellant] had argued before the trial court that the statute of limitations on the loan was tolled." (Second Application for Reconsideration, 2.) However, our decision contains no such concession, but explicitly rejects the notion that appellant had preserved tolling arguments in the trial court. We stated, "[a]ppellant did not argue, directly or indirectly that Ohio's six-year limitations period for negotiable instruments in R.C (A) was tolled." (Memorandum Decision, 7.) Far from "using sophistry more suited to a magician," the Tenth District has patiently allowed counsel for the Appellant two additional Applications for Reconsideration outside the Ohio (Page 8 of 13)

9 Rules of Appellate Procedure. In these decisions rendered December 31, 2012 and February 12, 2013, the Tenth District respectfully addressed counsel's meritless arguments. Therefore, the Tenth District did not make a mistake in affirming the Franklin County Court of Common Pleas. Appellant's Proposition of Law No. II should be denied because it is simply not a proposition of law and no factors suggest that the statute of limitations was tolled or is otherwise inapplicable. Proposition of Law No. III Appellant's Proposition of Law No. III is described as "[t]he SOL Could Not Have Expired Due to Estoppel." Just like counsel for the Appellant's first two Propositions of Law described above, this also is not a proposition of law and should be denied on that ground alone. Counsel for the Appellant goes on to argue how he did properly raise his estoppel arguments on appeal. However, as the Tenth District Court of Appeals pointed out in its decision rendered December 31, 2012, counsel for the Appellant only addressed the doctrine of promissory estoppel in the lower court. As stated in that decision "Appellant did not then and does not now, however, provide any authority for the proposition that a cause of action for promissory estoppel tolls the limitations period in R.C (A)." Mindlin v. Zell, 10th Dist. No. 1 lap-983 (Dec. 31, 2012), 8 (Memorandum decision). Instead, in his previous application for reconsideration, counsel for the Appellant cited authority for equitable estoppel to explain why his promissory estoppel theory should toll the statute of limitations. The Tenth District addressed counsel for the Appellant's confusion between equitable estoppel and promissory estoppel by citing Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d 560, 2010-Ohio-4601 (10th Dist.). That case explains the key distinction between the two (Page 9 of 13)

10 doctrines in that promissory estoppel is a cause of action while equitable estoppel is an affirmative defense. In spite of this, counsel for the Appellant is now attempting to argue that he actually made "the classic equitable estoppel argument" in his trial court motions and briefs. However, as already stated by the Tenth District, only the promissory estoppel theory was raised and "[p]romissory estoppel is a cause of action-not a defense to the limitations period in R.C (A). Therefore, we find that the appellant has failed to establish `obvious error' warranting reconsideration." Mindlin v. Zell, 10th Dist. No. 11AP-983 (Dec. 31, 2012), 9 (Memorandum decision). Indeed, as noted by the Tenth District at 6, Appellant is seeking yet another forum to express her "dissatisfaction with the logic used and conclusions reached by [the lower courts]." In re I.T.A., 7th Dist. No. 11 BE 27, 2012-Ohio-2438, 5. Therefore, Appellant's Proposition of Law No. III should be denied as the lower courts properly evaluated the evidence and decided that counsel for the Appellant never raised equitable estoppel as an affirmative defense. Proposition of Law No. IV Appellant's Memorandum in Support of Jurisdiction, Proposition of Law No. IV is stated as "[i]n construing a statute of limitations, every reasonable presumption will be indulged, and every doubt will be resolved in favor of affording a plaintiff his or her day in court." However; this is merely a recital of 66 Ohio Jur.3d Limitations and Laches 10, and is not a proposition of law. Appellant next claims that Court of Appeals has disregarded this principle by ignoring the law and misstating the facts. As explained above, the Court of Appeals has properly reviewed, re-reviewed, and reviewed for a third time the facts and legal arguments in this case. Indeed, it is Appellant that is (Page 10 of 13)

11 ignoring the law and misstating the facts. As stated by the Tenth District Court of Appeals in its decision rendered December 31, 2012 at ^ 7, "Appellant's latest application misrepresents several statements from our October 25, 2012 decision denying her first application for reconsideration." The Court of Appeals goes on to detail counsel's misstatements and concludes: "[t]herefore, our October 25, 2012 decision did not concede that appellant presented arguments to the trial court regarding the tolling of the statute of limitations. Appellant's claim of error in this regard is misleading and without merit." Id. Appellant stubbornly wants another chance to present her meritless arguments before this honorable Court. Therefore, as Appellant's Proposition of Law No. IV is not but merely a repeated effort to accuse the lower courts of legal and factual misrepresentations, it should be dismissed without further analysis. Proposition of Law No. V Appellant's Proposition of Law No. V also is not a proposition of law. Appellant's "Proposition of Law No. V," cites Savoy v. Univ. of Akron for the position that "* * * the compliant must show both: (1) the relevant statute of limitations; and (2) the absence of factors which would toll the statute or make it inapplicable." Savoy v. Univ. of Akron, 10th Dist. No. 11AP-183, 2012-Ohio-1962, ^ 6. By doing so, he is merely reciting existing case law. He then claims that summary judgment was not proper because the Appellees' Complaint and other court filings demonstrate that the Note had been extended or that it was not even due. However, Appellant fails to point out that no extension or modification agreement regarding the debt obligation was ever reached. As stated above, counsel is referring to the correspondence between the parties as evidence that the Note was somehow extended or tolled. (Page 11 of 13)

12 However, no agreement was ever reached. The Note was never modified or amended and not enforced for years. As such, the debt obligation is still governed by the original Note dated January 30, Counsel for the Appellant produces no credible legal theory for how informal exchanges between the parties or inconsistent pleadings (which are permitted under Civ.R. 8(E)(2)) can extend a due date on a promissory note. The Tenth District did not make a mistake in affirming the Franklin County Court of Common Pleas because no factors show that the statute of limitations was tolled or inapplicable. Therefore, Appellant's Proposition of Law No. V is not a proposition of law and no factors suggest that the statute of limitations was tolled or is otherwise inapplicable. CONCLUSION For the foregoing reasons, as well as those set forth in two Memorandums in Opposition to Appellant's Motion for Reconsideration and Brief of Plaintiff-Appellees Michael Mindlin and Elizabeth Kurila, and Third-Party Defendant-Appellee David Dale Suttle, the Mindlins and Mr. Suttle respectfully request this court to deny the Appellant Supreme Court jurisdiction. Additionally, Mindlin, Kurila, and Suttle respectfully request that attorney fees be awarded in their favor for the fees incurred in the filing of this response. ly PETFWSOb(,/ELfIS, F15/RG9S & PEER LLP GREOO S. Poi^Y( ) ^STVAN AJAR 00890g4) PETE SON, CONNERS, FERGUS & PEER, LLP Two iranova Place, Suite 330 (Page 12 of 13)

13 Columbus, OH Office: Fax: Counsel for Plaintiff-Appellees and Third-Party Defendant Appellee CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing Memorandum in Response of Jurisdiction of Appellant Eileen Zell was served by First Class Mail, postage prepaid, this 18th day of March, 2013 upon: JONATHAN R. ZELL, ESQ. ( ) 5953 Rock Hill Road Columbus, OH Co-Counsel for Defendant/ThiYd-Pa) Plaintiff-Appellant Eileen Zell (Page 13 of 13)