Case No. 2010-0266

IN THE SUPREME COURT OF OHIO

APPEAL FROM COURT OF APPEALSFIFTH APPELLATE DJSTRICT

STARK COUNTY, 01-110CASE NO. 2009-CA-00055

CI-7ARLES J. RAPPORTPlaintiff I Appellant

vs.

MARJAN KOCHOVSKI, et alDefendant / Appellee

MtMORANDUM IN OPPOSITION TO JURISDICTION

JAMES T. ROBERTSON, Esq. (0017626)Robertson & Pidoock, LLC236 -Third Street SWCanton, Ohio 44702(330)454-7724(330) 454-7824 - FaxJrobe•tson I <ct^neo. rr. com

GREGORY J. RUFO, Esq. (0000019)MARA C. AMAN, Esq. (0075978)101 Central Plaza S.Suite 900 Chase TowerCanton, Ohio 44702(330) 456-8389(330) 456-5328 TelefaxGrufolaw&vahoo.com

Atrorney for Plaintiffl Appellant Attorneys for Defendant / Appellee

TABLE OF CONTENTS

Page

TABLE OF CON'I'ENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

EXPLANATION W I-IY GRANTING OF JURISDICTION IS NO1' ONE OF

PUBLIC OR GREAT GENERAL INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PROPOSITION OF LAW NO. I: A VICTIM OF FRAUD WHO, BY CLEAR ANDCONVINCING EVIDENCE PROVES THAT TIIE FIZAUD WAS PERPETRATED WITHMALICE OR IS AGGRAVATED OR EGREGIOUS FRAUD NEED NOT PROVE THATMALICE WAS MOTIVATED BY A "SEPARATE ANIMUS" IN ORDER TO BE ENTITLED TOPUNITIVE DAMAGES OR ATTORNEY FEES UNDER R.C. §2315.21. . . . . . . . . . . . . . . .. . . . . 9

PROPOSITION OF LAW NO. 2: THE TRIAL COURT'S FINDING OF FACT WHICIi AI2ESUPPORTED BY COMPETENT, CREDIBLE EVIDENCE SHOULD NOT BE DISTURBED BYTHE COURT OF APPEALS ABSENT OF TIH, ABUSE OF DISCRETION . . . . . . . . . . . . . . . . 13

CONCLUSION .................................................................14

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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TABLE OF AIJTI3ORITIES

CASES

Burr v Board of County Commissioners of Stark County (1986) 23 Ohio St.3d 69 . . . . . . . . . . . . . . . . . 5

Charles A. Combs Trucking, Inc. v. InternatZ Harverters Co. (1984),12 Ohio St.3d 241, 446 N.E.2d 883) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 18, 20

Davis v. Tunison, 168 Ohio St. 471, 477 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Digital Analog Design Corp. v. North Supply Co. (1989),44 Ohio St.3d 36, 540 N.Ead 1358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16, 19

Fox v Williams (May 28, 1996), 4' App. Dist. No.95CA38, 1996 Ohio App. LEXIS 2337 ....... 8, 19

Guest v. Metker (Apr. 30, 1990), 5' App. Dist. No. CA-7985, 1990 Ohio App. LEXIS 1752 ..... 18

Locafrance United States Corp. v. Interstate Dist. Serv., Inc. (1983) 6 Ohio St.3d 198 ....... 7, 17

Logsdon v. Graham Ford Co. (1978), 54 Ohio St.2d 336, 339, 376 N.E.2d 1333 ......... 6, 16, 18

McEnteer v. tYloss (June 1, 2005), 9th App. Dist. No. 22201 and 22220, 2005 Ohio 2679 ..... 17, 18

Petta v. Clark (Jan. 15, 1997),9th App. Dist. No. 96CA006327 1997 Ohio App. LEXIS 54 . . . . . . . . . . . . . . . . . . . 6, 16,

Plaeilsv. Gossett (Nov. 3, 1995),6th App. Dist. No. WD-95-021, 1995 Ohio App. LEXIS 4820 . . . . . . . . . . . . . . . . . . . . . . .

Pion v Lima Development Corp. (Nov. 21, 1978),3" App. Dist. No.01-78-29, 1978 Ohio App. LEXIS 9426 . . . . . . . . . . . . . . . . . . . . . . . . . . 8,

Preston v_ Murty (1987), 32 Ohio St.3d 334 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,

Saksa v. Kleinfeld (Jan 15, 1987),BthApp. Dist. No. 51476,1987 Ohio App. LEXIS 5514. . . . . . . . . . . . . . . . . . . . . . . .. . . .

Scicolone v. O'Brien (Oct. 19, 1989),&n App. Dist. No. 56009, 1989 Ohio App. LEXTS 5126 . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sorin v. Board ofEducation (1976), 46 Ohio.St.2d 177, 181, 347 N.E.2d 527 . . . . . . . . . . . . . . 7,

Weber v. Obuch (Dec. 30, 2005), 9Yi, App. Dist. No. 05CA0048-M, 2005 Ohio 6993 ..... 16, 17,

17

18

19

17

18

17

19

19

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CODE SECTIONS

Ohio Revised Code § 2315.21 ....................................................... 5

EXPLANATION WIIY GRANTING OF 3URiSDICTION IS NOTONE OF PUBLIC OR GREAT GENERAL INTEREST

Contrary to the contention of the Appellant, Charles Rapport, the proposed Appeal in this niatter

does not present an issue of public or great general interest.

The decision of the Fifth Appellate DistTiet Court of Appeals for Stark County Ohio correctly

cites the provisions of the Ohio Revised Code, and the prior decision of the Coutts of Ohio in regards to

the treatment of punitive damages, and the award of attorney fees, in cases involving civil fraud.

As correctly noted by the Fifth Appellate District Court of Ohio for Stark County in its decision,

the Ohio Supreme Court has found in Burr v Board of County Comniis.sioners of Stark County (1986) 23

Ohio St.3d 69, paragraph two of the sitnulus, that the element of fraud to be as follows:

A representation or, where there is a duty to disclose, conceahnett of a fact;VJhich is material to the transaction at hand;Made falsely, with knowledge of its falsity, or with sueh other disregard and recklessnessas to whether it is trne or false, acknowledge may be inferred;With the intent of misleading another into relying upon it;Justifiable reliance upon the representation or concealmcnt; andA resultuig injury approximately caused by the reliance.

(C) Subject to division (E) of this section, punitive or exeniplary damages are notrecoverable from a Defendatt in question in a tort action unless both of the following

apply:

(1) the actions or admissions of that Defendant demonstrate malice oraggravated or egregious fraud, or that Defendant has principal or masterknowingly authorized, participated in, or ratified actions or omissions ofan agent or servant that so demonstrate.

1'he Ohio Suprenie Court has held in Preston v Murty (1987), 32 Ohio St.3d 334:

Actual malice, necessaty for an award of punitive damages, is: (1) that state of mindunder which a persons conduct is characterized by liatred, ill will or a spirit of revenge,or (2) a consciousness regard for the rights and safety for the other persons that have agreat probability of causing substantial harm.

The Fifth Appellate District Court of Appeals for Stark Comity, after carefully reviewing the

decision of the Trial Court, specifically detertnuied that "the Trial Court's decision speaks only to the

elements of fraud and is silent to the element of tnalice separate and apart from the fraud.

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A review of the September 18, 2008 Judginent Entry of the Trial Court makes it clear that the

Trial Court never applied the proper standard as to a detennination of the provisions of Ohio Revised

Code 2315.21(C)(1).

A review of the Septetnber 18, 2008 Judgment Enhy of the Trial Court makes this clear.

'fhere is not a. single finding of fact which addresses the issue of possible evidence of malice or

aggravated or egregious fraud.

The only reference to malice in the Court's Decisions are in Paragraph 17 of the Conclusion of

Law. That paragraph provides:

It is the finding of this Court that (a) Defendant Marjan Kochovski made representationsto Plaintiff Rapport that he had received rental income of the subject property in theanrount of $35,400.00, and that the subject property was full of long tenn tenants withgood payment histories and failed to advise Plaintiff about bartering for rent and that onetenant was brand new without any rental income history, (b) such representations andomissions were inaterial to the transaction at hand, (c) such representations andomissions were made falsely with knowledge of their falsity by Kochovski, or with suchutter disregard and recklessness by Kochovski as to whether they were true or false thatthe knowledge ntay be infelTed to Kochovski that the representations were false, and thatthe misrepresentations wer-e therefore made with tnalice, (d) such represertations andotnissions were made with the intent of misleading Rapport in relying upon it, (e) thatRapport justifiably relied upon such misrepresentation wlien deciding to purchase theproperty in question, as show not on(y by his direct testimony but by the fact that hedistributed Kochovski's written representation as to rental income to his lend and otherpersons, and (f) that resulting injury to Rapport was proximatefy caused by his justifiablereliance on the material misrepresentations of Kochovski.

It is a review of this conclusion as to the possible existence of malice that the Fifth Appellate

District Coutt of Appeals took exception to, and found that the Trial Court's decision related otily to the

elements of fraud and were insufficient to prove malice.

Ohio Courts have consistently held that a bare case of fraud does notwarrant the assessment of

exemplary damages. Petta v Clark (Jan.15, 1997), 9" App.Dist. No.96CA006327, 1997 Ohio

App.LEXIS 54 at P. 18 (quoting Logsdon vs (irahanz Ford Co.(l978) 54 Ohio St.2d 336, 339).

A Plaintiff is required to present evidence which wonld elevate the fraud to the level

contetnplated by the Courts before punitive damages may be awarded. Peta, supra, (citing Digital Analog

Design Corp. v Nortla Supply Co. (1989), 44 Ohio St.3d 36).

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It has been well established by the Ohio Cotiuts that punitive damages are awardable in cases of

fraud when there is involvement of malicions and intentional conduct. Such punitive damages are

assessed as punishnient and not compensation, a positive element of conscious wrongdoing is always

required. This clement has been termed conscious, deliberate or intentional. Locafrance United States

Corp. v Interstate Dist. Serv., Inc., (1983), 6 Ohio St.3d 198, 202, and Preston v Murty (1987), 32 Oliio

St.3d 334, 335.

The argument of the Appellant that somehow the Fifth Appellate District Court of Appeals has

carved out a special additional requirement for the proof of punitive damages in fraud cases is simply

faetually and legally incorrect.

The decision of the Fifth Appellate District Court of Appeals is consistem with the provisions of

the Ohio Revised Code, and the many decisions of the Ohio Courts.

No issue of public or great general interest has been presented by Appellant's Appeal.

In fact, Appellant's Appeal takes the position that all fraud cases should be cases involving

pimitive damages and the awarding of attorney fees.

'The Ohio Courts and the Ohio Legislature have long niade it clear that their intention was uever

to award pimitive damages and attorney fees in all tort cases, that is why the exceptions have been caived

out in the provisions of Ohio Revised Code 2315.21(C), and why the many decision of the Ohio Comls

have consistently held that in eaclt case of alleged fraud, the Plaintiff in order to be awarded punifive

daanages, must establish not only the elements of the tort of fraud itself, but in addition must either show

that the fraud is aggravated by the existence of malice or ill will, or must demonstrate that the

wrongdoing is particularly gross or egregious. Charles R. Combs Trucking, Inc., v International

Harvesters Co. (1984), 12 Ohio St.3d 241.

Finally, Ohio Courts have been consistent in their deternrinafion that attorney fees can only be

awarded as provided in certain statutory actions or when the opposing party is formd to have acted

maliciously. Sorin v Board ofEducation (1976), 46 Ohio St.2d 177, 181 . Without a finding of malice

and the award of punitive damages, the award of attorney fees is not justified. Fox v Williams (May 28,

1996), 4' App. Dist. No.95CA38, 1996 Ohio App. LEXIS 2337 at P. 18; Pion v Lima Development Corp.

(Nov. 21, 1978), 3`d App. Dist. No.01-78-29, 1978 Ohio App. LEXIS 9426 at P. 14.

ARGUMENT IN SUPPORT OF A PROPOSITION OF LAW

PROPOSITION OF LAW NO. 1: VICTIM OF FRAUD WHO, BY CLEAR AND CONVINCINGF,VIDENCE PROVES THAT THE FRAUD WAS PERPETRATED WITH MALICE OR ISAGGRAVATED OR EGI2EGIOUS FRAUD NEED NOT PROVE THAT MALICE WASMOTIVATED BY A "SEPARATE ANIMUS" IN ORDER TO BE ENTITLED TO PUNITIVEDAMAGES OR ATTORNEY FEES UNDER R.C. §2315.21

Appellants proposed proposition of law states a false premise.

The Fifth Appellate District Court of Appeals made it clear that there was no finding by the Trial

Court as to any malice or aggravated or egregious fi•aud, and it is upon that basis that the Fifth Appellate

District Court reversed the Trial Court on the issue of awarding punitivc damages and attoniey fees.

The Fifth Appellate District Court of Appeals does not create a requirement of pi-oof of a

"separate animus" in order to award punitive damages and attorney fees under Ohio Revised Code

§2315.21.

Rather, it was the Trial Court that erred in awarding punitive damages and attorneys fees

without any evidence orjudicial finding of actual malice on the part of Appellant. "R.C. 2315.21

govenls the recovery of punitive and exemplairy damages in tort actions. For a Plaintiff to recove-

punitive damages in a tort action, the Plaintiff must show by clear and coilvincing evidence that „the

actions or omissions of the Defendant denionsh-ate malice, aggravated or egregious fraud,

oppression, or insult."" Yt'eber v. Obatch (Dec. 30, 2005), 9th App. Dist. No. 05CA0048-M, 2005

Ohio 6993, P. 37 (qtioting the statutory language of R.C. 2315.21). Ohio courts have also held that,

"a bare case of fraud ... does not warrant the assessment of exemplary damages." Petta v. Clark (Jan.

15, 1997), 9n, App. Dist. No. 96CA006327, 1997 Ohio App. LEXIS 54 at P. 18 (quoting Logsdon v.

Graham Ford Co. (1978), 54 Ohio St.2d 336, 339.

Ratlier, a Plaintiff is required to present "evidence which would elevate the fraud to the level

contemplated by the courts before punitive damages tnay be awarded. Petta, sup'a, (citing Digital

Analog Design Corp, v. North Supply Co. (1989), 44 Ohio St.3d 36).

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Moreover, as a matter of coimnon law, Ohio courts have held that evidence that would

elevate the fraud to the level that justif'ies punitive damages is evidence that the fraud was eominitted

with actual malice or ill will, or must demonstrate the wrongdoing is particularly gross or egregious.

Scicolone v. O'Brien (Oct. 19, 1989), 8m App. Dist. No. 56009, 1989 Ohio App. LEXIS 5126 at P.

23 ("It is well established [that] pimitive damages are awardable in cases of fraud which involve

malicious and intentional conduct. Since punitive damages are assessed for punishment and not

compensation, a positive element of conscious wrongdoing is always required. This element has

been termed conscious, deliberate or intentional." citing Locafi•anee Uiaited Slates Corp. v. Interstate

Dist. Serv., Inc. (1983) 6 Ohio St.3d 198, 202 and Preston v. Murty (1987), 32 Ohio St.3d 334, 335.

"Actual nialice, nccessary for an award of punitive damages is defined as: (1) that state of mind

rmder which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a

conscious disregard for the rights and safety of other persons that has a great probability of causing

substantial harm."

The quanhun of proof required of the Plaintiff in cases involving punitive damages must be

by clgar and convincing evidence.°' Petta v. Clark (Jan. 15, 1997), 9th App. Dist. No. 96CA006327,

1997 Ohio App. LEXIS 54 at P. 18 (citations omitted); Weber v. Obuch (Dec. 30, 2005), 9u, App.

Dist. No. 05CA0048-M, 2005 Ohio 6993, P. 37 ("Actual malice, necessary for an award of punitive

damages, is defined as: (1) the state of mind under which a person"s conduct is characterized by

hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other

persons that has a great probability of causing substantial harm"" quoting Preston v_ Mirrly (1987 ,

32 Ohio St.3d 334, Syl.); see also McEnteer v. Moss (June 1, 2005), 9th App. Dist. No. 22201 and

22220, 2005 Ohio 2679 at P. 9 ("Specific to the claim of fraud, the law is well settled that inere

cominission of fraud is not enough; the fraud must be egregious).

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In each case of alleged fraud the Plaintiff, in order to be awarded punitive damages, must

establish not only the elements of the tort of fraud itself, but in addition, must either sliow that the

fraud is aggravated by the existence of malice or ill will, or must demonstrate that the wrongdoing is

partictilarly gross or egregious quoting Charles R. Combs Tnreking, Inc. v. Internnat'l Harverters Co.

(1984), 12 Ohio St.3d 241, 446 NT.E.2d 883, P. 3 of Syl.); see also Pher.'dsv. Gossett (Nov. 3, 1995),

6m App. Dist. No. WD-95-021, 1995 Ohio App. LEXIS 4820 at P. 13, 22.

"The mere existence of'fraud in this commercial transaction, even in falsified documents, is

not enough on its own to support a punitive damages award. McEnteer v. Moss (June 1, 2005), 9th

App. Dist. No. 22201 and 22220, 2005 Ohio 2679 at P. 9; Logsdon v. Graham Ford Co. (1978), 54

Ohio St.2d 336, 340 ("fraud is not made egregious just by a salesman lying about a truck being new,

even in falsified documents); Guest v. Metker (Apr. 30,1990), 5°i App. Dist. No. CA-7985, 1990

Ohio App. LEXIS 1752 at P. 10 ("an arms length transaction tends to refute the behavior necessary

to ring the punitive damages bell").

In MeEnteer, the Plaintiff filed a lawsuit based on fraudulent representations allegedly made

by Defendant in inducing Plaintiff to invest $70,000 in,a joint venture. The Defendant failed to

answer within 28 days, and a default judgment was entered in favor of the Plaintiff. In upholding the

trial courts decision not to award punitive damages and attorneys" fees, the appellate court held that

Plaintiff failed to suggest or demonstrate that the fraud in the case was egregious or motivated by ill

will or inalice. Moreover, the court held that the transaetion was at "arms length", was not a

"consumer transaction", did not "involve any pattern of repeat conduct," or "involve pliysical harm

or any threat to health or safety." Id (eotnpare with Saksa v. Kleinfeld (Jan 15, 1987), 8th App. Dist.

No. 51476, 1987 Ohio App. LEXIS 5514.

Similarly, in the instant case, Appellant and Appellee entered into the Purcllase Agreement at

arms-length. This was not a eonsumei- transaction nor an instance of repeated conducted or a pattern

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of deceptive acts. Moreover, there was no tlu•eat of physical harm or any tlu•eat of health or safety.

The record indicates that there was no actual malice proffered at trial or at the damages hearing by

Appellees. More importantly, there was a complete absence of either any evidence of actual malice

or a judicial finding of actual malice by the trial court that would justify the imposition of punitive

damages. Rather, the trial court only held that "it has been proven that [Appellants]

misrepresentations and actions are such that the imposition of punitive damages is warranted." JB

(Sept. 18, 2008) at P. 21. The trial court reiterated this statement during the damages hearing on

December 16, 2008 holding that "this Court lias already determined that the punitive damages are

appropriate in the present action." See JF, (Deo. 18, 2008) at P. 2. Neither statement finds that there

was "actual malice" that would justify the imposition of punitive damages. Consequently, the trial

court erred in awarding punitive damages without a finding (or competent aid credible evidence) of

actual malice.

The trial court also erred in awarding attorneys" f'ees. "ln Ohio, each party is responsible for

their own attorney"s fees except as provided in certain statutory actions or when the opposing party

is found to have acted maliciously." Weber, pupra, P. 42 (citing Sorin v. Board of Fducation (1976), }

46 Ohio.St.2d 177, 181; Digital & Analog Design Corp, supra, at 662); see also, Fox v. Willianzs

(May 28, 1996), 4m App. Dist. No. 95CA38, 1996 Ohio App. LEXIS 2337 at P. 18 ("Without a

finding of malice and the award of punitive damages, Appellant cannot justify the award of' attorney

fees."); see also Pion v. Lima Development Corp. (Nov. 21, 1978), 3rd App. Dist. No. 01 -78-29, 1978

Ohio App. LEXIS 9426, P. 14 ("In the most recent case in which the Supreme Court has dealt with

the subject of punitive daniages, it held ... that punitive damages are not recoverable in an action

based on fraudulent sale unless the fraud is malicious, wanton or gross." citing Lodgsdon, supra, and

Davrs v. Tunis•on , 168 Ohio St. 471, 477);

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In the instant case, there was no finding of actual malice to award the imposition of punitive

damages.

PROPOSITION OF LAW NO. 2: THE TRIAL COURT'S FINDING OF FACT WHICH ARESUPPORTED BY CO1VH'ETENT, CREDIBLE EVIDENCE SHOULD NOT BE DISTURBED BYTHE COIJRT OF AI'PEALS ABSENT OF THE ABUSE OF DISCRETION.

Again, the Appellant's proposed proposition of law is predicated upon a false premise.

There is not a siugle finding of fact preseuted by the Trial Conrt's decision of Septcmber 18,

2008, which indicates that evidence was provided which showed by clear and convincing evidenec that

the actions or omissions of the Defendant detnonstratedmalice or aggravated or egregious fraud.

'I'he only reference in the Trial Court's decision to matice is Paragraph Seventeen (17) of thc

Conclusions of Law.

As the Fifth Appellate District Court of Appeals decision clearly indicates, that paragraph

ittdicates that the'frial Court only apply the elements of fraud in reaching it's conclusion as to malice.

The tnere reference to cvidence of fraud is insufficient to justify the finding of the requisite

elements for awarding pLmitive damages and attorney fees.

As previously indicated, it is well settled that the mere commission of a fi-aud is not enough, the

fraud must be egregious. In each case of alleged fraud the Plaintiff, in order to be awarded punitive

damages must establish not only the elen2ents of the tort of fraud itself, but in addition, must either show

tbat the fraud is aggravated by the existence of malice or illwill, or must demonstrate that the wrongdoing

is particularly gross or egregious. Charles R. Combs Trucking, Inc. v. Internat'l. Harverters Co.

(1984), 12 Ohio St.3d 241.

As such, the Fifth Appellate District Court of Appeals acted correctly in reversing the deeisioti of

the Trial Court, as thcre was ttot competent and credible evidence to snpport the awarding of punitive

damages and/or attorney fees.

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CONCLUSION

In summary, the'1'rial Court's Judginent Entry of September 18, 2008 is void of the factual finds

ancl conclusions of law which would justify the award of punitive damages and attorney fees.

Although, appropriate evidence may have been presented as to the existence of a civil fraud,

there was no evidence of malice or ill will, or the deinonstration that the wrongdoing was patticularly

gross or egregious.

'rhe Fifth Appellate Distiict Court of Appeals decision correctly reversed the decision of the

Trial Court as to the issues of awarding punitive damages and attorney fees, as there was not competent

or credible evidence for the Trial Court to find that the evidence demonstratcd malice or aggravated or

egregious fraud as required by Ohio Revised Code §2315.21 (C)(1).

The proposed appeal of the Appellant does not present an issue which is one of public or great

general interest. It is simply the Appellant disagreeing with the decision of the Fifth Appellate District

Court of Appeals. As such, this presents an issue not of publie or great general interests, but rather a

question of interest primarily to the Appellant.

Accordingly, Appellee respectfully requests that this Court deny jurisdiction in this matter,

and/or in the alternative eonfirm the decision of the FiftJi Appellate District Court of Appeals.

Respectfully Subniitted,

GREO^(d`.dkEfFb, #000001

101 Central Plaza SouthSuite 900 - Chase TowerCanton, Ohio 44702(330) 456-8389(330) 456-5328-fax

^tartke-y for llefendantlAppe116e

CERTIFICATE OF SERVICE

ereby certify that a copy of the foregoing has been sent via U.S. Mail on this the day

of Murt.& 2010 to 7ames T. Robertson, Attorney for Plaintiff/Appellant,

ROBRRTSON cQ. PIDC .K, LLC, 236 Third Street SW, Canton, Ohio 44702, postage prepaid.

t'torney for Defendant / Appellee