IN THE SUPREME COURT OF OHIONO. 2013-0408

HEATHER DUNCAN ))))))))))

On Appeal from theCuyahoga County Court of AppealsEighth Appellate DistrictPlaintiff-Appellant,

vs.

CUYAHOGA COMMUNITYCOLLEGE, et al.

Defendants-Appellees.

Court of AppealsCase No. 11 097222

MEMORANDUM IN RESPONSE OF DEFENDANTS-APPELLEESCUYAHOGA COMMUNITY COLLEGE DISTRICT AND GREG SOUCIE

Blake A. Dickson (0059329)BlakeDickson@TheDicksonFirm.com

Mark D. Tolles (0087022)MarkTollesgThe DicksonFirm.com

THE DICKSON FIRM, L.L.C.

Enterprise Place, Suite 4203401 Enterprise ParkwayBeachwood, Ohio 44122(216) 595-6500/(216) 595-6501 (fax)

ATTORNEYS FOR APPELLANTHEATHER DUNCAN

R E 'U"_oV EoAPR 15 ?Q13

MICHAEL DEWINEAttorney General of OhioAmanda M. Leffler (0075467)aleffler@,brouse.comJohn C. Fairweather (0018216)Jfairweather2brouse.comBrouse McDowell388 South Main Street, Suite 500Akron, Ohio 44311-4407(330) 535-5711/(330) 253-8601 (fax)

Caroline L. Marks (0071150)cmarksgbrouse.comAlexandra V. Dattilo (0086444)adattilo@brouse.comBrouse McDowell600 Superior Avenue East, Suite 1600Cleveland, Ohio 44114(216) 830-6830/(216) 830-6807 (fax)

CLERK 0F COURTSUPREIVSE WURT OF OHIO

APR 15:,2013

SPECIAL COUNSEL FOR APPELLEESCUYAHOGA COMMUNITY COLLEGEDISTRICT AND GREG SOUCIE

t,^^RK OF COURTSVREW1,E COURT @QHIU

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......... ................................................................................................. ii

THIS CASE DOES NOT INVOLVE A MATTER OF PUBLICOR GREAT GENERAL INTEREST ..............................................................................................1

STATEMENT OF THE CASE AND FACTS ................................................................................4

ARGUMENTS IN OPPOSITION TO DUNCAN'S PROPOSITIONS OF LAW ..........................6

Duncan's Proposition of Law No. 1: Pursuant to R.C. § 3354.01(A), a

"community college district" is a political subdivision entitled to

immunity, as provided in R.C. § 2744.02(A). Pursuant to R.C. §

3354.01(C), a "community college" is not a political subdivision andtherefore is not entitled to immunity. An appellate court may not impose

its own preferences and ignore the application of clearly written statutes ...........6

Duncan's Proposition of Law No. 2: As recognized in M.H. v. CuyahogaFalls, 2012-Ohio-5336 (2012), a political subdivision can be held liablefor injury caused by the negligence of its employees that occurred withinor on the grounds of a building used in connection with the performanceof a governmental function, pursuant to O.R.C. § 2744.02(B)(4) .........................9

CONCLUSION ......................................................................................................... .................12

CERTIFICATE OF SERVICE ......................................................................................................13

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TABLE OF AUTHORITIES

Paae

Cases

Duncan v. Cuyahoga Community College, 970 N.E.2d 1092, 2012-Ohio-1949 ............................ 5

Groch v. Gen Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546 .............................................. 11

Hale v. Columbus, 63 Ohio App.3d 368, 372, 578 N.E.2d 881 (10th Dist. 1990) ....................... 11

Hamrick v. Bryan City Sch. Dist., 6th Dist. No. WM-10-014, 2011-Ohio-2572 ............................ 5

Hawsman v. Cuyahoga Falls, 9th Dist. No. 25582, 2011-Ohio-3795 ............................................ 7

M.H. v. Cuyahoga Falls, 143 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261 ............... passim

Olin Mathieson Chem. Corp v. Ontario Store, 9 Ohio St.2d 67, 70, 223 N.E.2d 592 (1967)...... 11

Porter v. Oberlin, 1 Ohio St.2d 143, 149, 205 N.E.2d 363 (1965) .............................................. 11

State ex rel. VanCleave v. School Emps. Retirement Sys., 120 Ohio St.3d 261, 2008-Ohio-5377,

..........................................................................................................................898 N.E.2d 33 "' 3

White v. Sears, Roebuck & Co., 10th Dist. No. 04AP-1286, 2005-Ohio-5922 . ............................. 8

Statutes

..........................................................................................................................R.C. 2744.02 passim

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THIS CASE DOES NOT INVOLVE A MATTEROF PUBLIC OR GREAT GENERAL INTEREST

In this appeal, Heather Duncan ("Duncan") seeks review of two decisions of the Eighth

District Court of Appeals: the first, denying her motion to enlarge the time within which to file a

motion for reconsideration of the appellate court's previously issued May 3, 2012, order (which

found that Duncan's negligence claims were barred by political subdivision immunity (the

"Immunity Order")), and the second, the Court of Appeals' denial of her application for en banc

reconsideration of her motion to enlarge the time. In attempting to create the appearance of an

issue of statewide importance where none exists, Duncan asserts, without basis, that the Court of

Appeals refused to apply this Court's decision in M.H. v. Cuyahoga Falls, 143 Ohio St.3d 65,

2012-Ohio-5336, 979 N.E.2d 1261, and that its decisions will jeopardize the safety of students

attending community college classes in the State of Ohio. Duncan's proclamations are utterly

unfounded and unsupportable. Indeed, the Court of Appeals' faithful adherence to the mandates

of R.C. Chapter 2744 and this Court's precedent not only yielded predictable results but fostered

the Ohio public policy expressed by the General Assembly in the Political Subdivision Tort

Liability Act. As discussed below, because neither of Duncan's propositions of law presents a

matter of public or great general interest, this Court should reject her request to accept this

appeal.

In her memorandum, Duncan raises several case-specific arguments, essentially asking

this Court to review for error the Court of Appeals' analysis of the facts under long-standing

Ohio law. In her first proposition of law, Duncan sets forth the well-established principle that

where the Supreme Court renders a decision that bears directly upon an issue previously raised in

the appellate court, that Supreme Court decision may constitute the "extraordinary

circumstances" required by Rule of Appellate Procedure 14(B) to enlarge the time in which to

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file a motion for reconsideration. As Duncan herself points out in her Memorandum, however,

this is not a novel proposition of law, and this Court and appellate courts across the State

routinely grant motions for enlargement of time on these grounds. (Duncan Memorandum, pp.

11-12 (citing cases)). Duncan proposes no modification or expansion of the current law, but

rather simply contests the application of that law to the facts in this case.

Specifically, Duncan contends that this Court's decision in M.H. satisfied the requirement

of "extraordinary circumstances" because, according to Duncan, that decision addressed the

same narrow legal issue that was before the Court of Appeals - i.e. whether the absence of mats

on a floor could constitute a "physical defect" that might satisfy the exception to political

subdivision immunity found in R.C. 2744.02(B)(4).' As discussed in detail below, however, the

MH decision did not address, in any manner, the "physical defect" requirement found in the

statute. Accordingly, the Court of Appeals rejected Duncan's assertion that the M.H. decision

constituted a subsequent, supersedirig decision from this Court and properly concluded that

Duncan had not demonstrated the extraordinary circumstances required for an appellate court to

enlarge the time in which it would reconsider its previous decision.

Moreover, regardless of whether Duncan agrees with the Court of Appeals' conclusion

that the M.H decision does not conflict with its prior Immunity Order, Duncan's first proposition

of law does not warrant this Court's review as it does no more than reiterate well-established law

interpreting Appellate Rule 14(B) and assert that the Court of Appeals failed to properly apply

that law in this case. Resolution of Duncan's first proposition of law would not impact the

citizens of the State of Ohio generally, but rather would apply only to Duncan's claims here.

1 This Court previously declined to accept jurisdiction over Duncan's discretionary

appeal from the Immunity Order. See Duncan v. Cuyahoga Community College, Ohio Supreme

Court No. 1012-1043.

2

In addition, Duncan's first proposition of law does not implicate safety concerns. The

adoption of Duncan's first proposition would not change the manner in which immunity is

applied to political subdivisions and their employees. Accordingly, Duncan's first proposition

does not present a matter of public or great general interest, and her application for review of the

appellate court's decisions should be denied.

Duncan's second proposition of law is likewise unworthy of this Court's attention. In it,

Duncan misinterprets the holding in MH., attempting to create a conflict between that decision

and the Court of Appeals' Immunity Order that would form a basis for her motion to enlarge the

time in which to file a motion for reconsideration. Duncan asserts that, by failing to specifically

analyze the "physical defect" requirement found in R.C. 2744.02(B)(4), this Court actually

struck down that portion of the statute. Duncan's contention that M.H struck down a specific

statutory mandate with no discussion about doing so is simply implausible, and this Court should

reject her attempt to manufacture a conflict where there is none.

Instead, the General Assembly, which is "the final arbiter of public policy," has already

addressed the issue presented by Duncan's second proposition of law by articulating the legal

framework for immunity and making public policy decisions involving the balancing of the

protections afforded to political subdivisions with compensating parties injured by political

subdivisions and its employees. See State ex rel. VanCleave v. School Emps. Retirement Sys.,

120 Ohio St.3d 261, 2008-Ohio-5377, 898 N.E.2d 33, ¶ 27. In reaching its decisions in this

case, the Court of Appeals did not deviate from these principles or from this Court's precedent,

nor did it impose a novel, rogue interpretation of the law. Accordingly, Duncan's improperly

expansive reading of M.H. does not present an issue of public or great general interest, and does

not warrant review by this Court.

3

As is evident, this case does not present any unique issue of law but rather involves the

application of well-established law to the facts of this case. Accordingly, as this case fails to

raise an issue of public or great general interest, the Court should decline to exercise jurisdiction

to decide the case on the merits. See S.Ct.Prac.R. 2.1(A)(3).

STATEMENT OF THE FACTS AND CASE

The material facts presented by this appeal are not complicated.2 In connection with her

employment with the Bedford Heights Police Department, Duncan attended a peace officer

training course at the campus of Appellee Cuyahoga Community College ("Tri-C"). (Complaint

at ¶¶ 1, 2). Appellee Greg Soucie ("Soucie") was in charge and responsible for running this

training program. (Id. at ¶¶ 3, 4). Among other things, the training program involved a self-

defense class. (Id. at ¶ 12). Duncan alleges that during this portion of the course, she and the

other students engaged "in physical activity that resulted in their bodies striking the ground and

the [Appellees] failed to use mats on the ground or take other safety precautions." (Id. at ¶ 13).

Duncan claims that she suffered an injury to her knee as a result of this class. (Id. at ¶ 10).

On September 14, 2007, Duncan filed a complaint against Tri-C and Soucie

("Appellees") for negligence and breach of contract. On May 5, 2008, Duncan voluntarily

dismissed her case. On March 30, 2009, Duncan refiled her complaint. On April 8, 2011,

Appellees moved for judgment on the pleadings. Duncan responded to Appellees' motion

on April 19, 2011, and Appellees replied on May 23, 2011. On August 5, 2011, the Cuyahoga

County Court of Common Pleas denied Appellees' motion. Appellees timely appealed from that

2 The facts are taken from Duncan's Complaint and are presumed to be true for purposes

of this appeal only.

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judgment, and on May 3, 2012, the Eighth District Court of Appeals issued the Immunity Order

which reversed that judgment, in part, and remanded the case for further proceedings.

Specifically, the Court of Appeals determined that Duncan's negligence claims were

barred by political subdivision tort liability immunity because Duncan did not plead the

existence of a physical defect, and remanded the breach of contract claim for lack of a final

appealable order. In finding for Appellees, the Court of Appeals relied upon the Sixth District's

decision in Hamrick v. Bryan City Sch. Dist., 6th Dist. No. WM-10-014, 2011-Ohio-2572, to

determine that "a lack of mats on the floor of a classroom did not constitute a`defect' as that

word is used in R.C. 2744.02(B)(4)." Duncan v. Cuyahoga Community College, 970 N.E.2d

1092, 2012-Ohio-1949, ¶ 27 (8th Dist.). The Court of Appeals' decision was extremely narrow,

and held that Duncan did not allege anything wrong with the floor, that the floor behaved as it

should, and that the decision not to use mats was not a physical defect under R.C. 2744.02(B)(4).

Duncan sought review of the Court of Appeals' dismissal of her negligence claims from

this Court, review which this Court denied on October 10, 2012, Case No. 2012-1043, notably,

while the M.H.decision was pending. After this Court's rejection of her appeal, Duncan filed an

additional five motions in the Court of Appeals: the subject motions to enlarge the time in which

Duncan could file a motion for reconsideration and for en banc reconsideration of the denial

thereof, two separate motions to certify a conflict to the Supreme Court, and a motion seeking

reconsideration of the denial of one of her motions to certify a conflict. Each of these motions

was denied.3

3 Duncan states in her Motion, that Appellees did not oppose her November 30, 2012,motion for reconsideration. This is incorrect. Appellees did not file a formal opposition to the

motion for reconsideration because the Eighth District sua sponte denied the motion before the

time had elapsed within which Appellees could file their opposition brief.

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ARGUMENTS IN OPPOSITION TODUNCAN'S PROPOSITIONS OF LAW

Duncan's Proposition of Law No. 1: "Where a court of appeals issues adecision and the Ohio Supreme Court subsequently issues a decision in adifferent case, on the same substantive legal issue, that conflicts with andsupersedes the opinion previously issued by the court of appeals, the court ofappeals should grant a party's application for reconsideration in order toreconsider its opinion in light of the Ohio Supreme Court's subsequent

decision."

Duncan's first proposition of law does not warrant this Court's review of the Court of

Appeals' decisions. In it, Duncan alleges the Court of Appeals should have granted Duncan's

motion to enlarge the time in which to file a motion for reconsideration because the Supreme

Court's decision in M.H. constitutes a subsequent, superseding decision that is in direct conflict

with the appellate court's prior Immunity Order.4 Duncan's argument, however, relies upon two

fundamentally false premises. First, contrary to Duncan's assertions, the appellate court did not

hold that a subsequent, superseding decision from the Supreme Court could not constitute the

"extraordinary circumstances" required by Appellate Rule 14(B). Second, the M.H. decision did

not address the "physical defect" requirement found in R.C. 2744.02(B)(4), and, consequently, is

not a "superseding" decision that could justify enlarging the time in which to file a motion for

reconsideration.

As an initial matter, Duncan reads too broadly the two subject Court of Appeals'

decisions which denied her motion to enlarge the time in which to file a motion for

4 Duncan also argues throughout her Memorandum that appellate courts are

constitutionally bound to follow the mandates of the Ohio Supreme Court. See e.g. Duncan

Memorandum, pp. 11-13. This concept is deeply rooted in Ohio jurisprudence and is notdisputed by Appellees herein. This case does not present any issue with regard to this well-established legal principle. Rather, Duncan's propositions relate solely to her view that the Court

of Appeals failed to follow the Supreme Court's precedent by refusing to reconsider its Immunity

Order.

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reconsideration. Duncan posits that, in denying her motions, the Court of Appeals rejected her

argument that an appellate court should enlarge the time to file a motion to reconsider "where

this Court issues a decision on a substantive legal issue that was previously considered in a

different case by a court of appeals." (Duncan Memorandum, p. 12). The Court of Appeals,

however, did not hold that a subsequent, superseding decision from this Court could never

constitute the extraordinary circumstances necessary to permit an enlargement of time to file a

motion to reconsider. Instead, the appellate court simply held that Duncan had failed to

demonstrate the extraordinary circumstances necessary to justify late reconsideration in this case.

Implicit in this decision is the finding that the decision in M.H. does not constitute a subsequent

superseding decision that would require further review of the Immunity Order.

Second, the Court of Appeals' decision in this regard was correct. In its Immunity Order,

the appellate court narrowly held that "a lack of mats on the floor of a classroom did not

constitute a`defect' as that word is used in R.C. 2744.02(B)(4)." Duncan, 2012-Ohio-1949,

¶ 27. Conversely, the M.H Court did not construe, in any manner, the phrase "physical defect"

found in the statute. See generally M.H., 2012-Ohio-5336. Rather, in MH., this Court resolved

confusion among the appellate districts regarding whether an indoor, public swimming pool

could fall under the exception to immunity provided by R.C. 2744.02(B)(4).

The underlying appellate decision issued by the Ninth District describes succinctly the

confusion then-existing among the appellate districts regarding treatment of indoor swimming

pools. Hawsman v. Cuyahoga Falls, 9th Dist. No. 25582, 201 1-Ohio-3795, ¶¶ 16-19. Relying

upon prior Supreme Court precedent, some appellate courts had drawn a distinction between

indoor public pools and outdoor public pools in applying the doctrine of immunity. See

generally id. These courts found that, unlike outdoor public pools, indoor public pools did not

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satisfy the statutory exception to immunity found in R.C. 2744.02(B)(4) because injuries

happening at indoor pools did not occur "within or on the grounds of a building used in

connection with a governmental function." R.C. 2744.02(B)(4). The M.H Court rejected this

distinction, and held that an injury that occurred at an indoor, public swimming pool occurred

"within or on the grounds of a building used in connection with a governmental function," and

thereby satisfied the exception. See id, at ¶ 11. Importantly, however, the opinion contains no

analysis of the phrase "physical defect."

The instant case does not involve a swimming pool. Moreover, there has never been any

dispute that Duncan was "within or on the grounds of a building used in connection with a

governmental function" at the time she was allegedly injured. The sole issue before this Court in

M.H. - i.e. what constitutes "within or on the grounds of a building used in connection with a

governmental function" - was never before the Court of Appeals in this case and did not provide

a basis for its Immunity Order. Thus, no conflict exists between the issue raised in M.H. and the

narrow issue previously decided by the Court of Appeals that would have justified enlarging the

time in which to file a motion for reconsideration. See White v. Sears, Roebuck & Co., 10th Dist.

No. 04AP-1286, 2005-Ohio-5922, ¶ 4 (denying motion to certify conflict or, alternatively,

reconsider decision where subsequent case "did not even address the [issue presented], much less

reach a holding contrary to [the appellate court's] holding. ..[and thus did] not conflict with our

[prior opinion] . . ..").

In fact, the circumstances presented in M.H. were entirely different than those present in

this case. It is apparent from even the brief discussion in the opinions issued by this Court and

Ninth District Court of Appeals that the plaintiff in M.H. was alleging that something was wrong

with the diving board upon which he was allegedly injured - i.e. that it was defective.

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Specifically, the plaintiff asserted that the city's failure to properly maintain the diving board had

led to an unsafe surface condition - i.e. a state of disrepair that was not natural or inherent to the

diving board. Duncan, however, never made such an argument, nor. could she have done so.

There was no dispute that there was nothing wrong with the floor at TNi-C whatsoever. The floor

functioned exactly as it was intended to function. It was the decision to not use mats that

allegedly caused Duncan's injury and the Court of Appeals properly rejected Duncan's attempt

to characterize that decision as a "physical defect." Thus, Duncan's attempt to rely upon M.H. to

satisfy the "extraordinary circumstances" required by Appellate Rule 14(B) was properly

rejected by the Court of Appeals.

Notably, this case is not a case in which the Court of Appeals announced new law, or

modified the existing law relating to what constitutes the "extraordinary circumstances"

necessary to warrant reconsideration. Instead, Duncan takes exception to the Court of Appeals

application of well-settled law to her particular case. Accordingly, Duncan's first proposition of

law does not involve an issue of statewide importance and does not merit review by this Court.

Duncan's Proposition of Law No. 2: "As recognized in M.H. v. Cuyahoga

Falls, 2012-Ohio-5336 (2012), a political subdivision can be held liable forinjury caused by the negligence of its employees that occurred within or onthe grounds of a building used in connection with the performance of agovernmental function, pursuant to O.R.C. § 2744.02 (B)(4)."

Duncan's second proposition of law likewise does not present a matter of public or great

general interest. In it, Duncan misinterprets this Court's decision in M.M in an attempt to create

a conflict between that decision and the Court of Appeals' Immunity Order that she argues

would have justified enlarging the time in which to file a motion for reconsideration. M.H.

cannot be read as broadly as Duncan advocates, however, and this Court should decline review

of Duncan's second proposition of law.

9

R.C. 2744.02(B)(4) provides as follows:

(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a politicalsubdivision is liable in damages in a civil action for injury, death, or loss toperson or property allegedly caused by an act or omission of the politicalsubdivision or of any of its employees in connection with a governmental or

proprietary function, as follows:

(4) Except as otherwise provided in section 3746.24 of the Revised Code, politicalsubdivisions are liable for injury, death, or loss to person or property that iscaused by the negligence of their employees and that occurs within or on the

grounds of, and is due to physical defects within or on the grounds of, buildings

that are used in connection with the performance of a governmental function,including, but not limited to, office buildings and courthouses, but not includingjails, places of juvenile detention, workhouses, or any other detention facility, asdefined in section 2921.01 of the Revised Code.

R.C. 2744.02(B)(4) (Emphasis added).

In her memorandum, Duncan concedes that, as drafted, the exception to immunity

codified in R.C. 2744.02(B)(4) requires an injured plaintiff to plead (and ultimately prove) the

following:

(1) An injury;

(2) Caused by the negligence of Tri-C's employees;

(3) That occurs within or on the grounds of; and

(4) Is due to physical defects within or on the grounds of buildings used inconnection with the performance of the governmental function.

R.C. 2744.02(B)(4). Importantly, Duncan also concedes that in 2003, R.C. 2744.02(B)(4) was

amended specifically to include the "physical defects" language. (Duncan Memorandum, p. 14

(citing Am.Sub.S.B. No. 106)).

10

Nonetheless, Duncan contends that, by failing to explicitly analyze the "physical defect"

requirement, the MH. Court struck the "physical defect" language fNom the statute,

notwithstanding the fact that the Ohio General Assembly specifically added such language to the

statute when it was amended in 2003. Duncan's assertion that this Court's silence rendered void

the "physical defect" requirement added by the General Assembly only a decade ago is simply

implausible, and should be summarily rejected by this Court.

Notably, neither party in M. H. challenged the constitutionality of the statute, and this

Court is not in the practice of sua sponte invalidating lawfully enacted legislation without any

discussion thereof. See Hale v. Columbus, 63 Ohio App.3d 368, 372, 578 N.E.2d 881 (10th Dist.

1990) (holding that legislation being challenged will not be invalidated unless the challenger

establishes that it is unconstitutional beyond a reasonable doubt); Porter v. Oberlin, 1 Ohio

St.2d 143, 149, 205 N.E.2d 363 (1965) (stating that "[u]nless there is a clear and palpable abuse

of power, a court will not substitute its judgment for legislative discretion"); Olin Mathieson

Chem. Corp v. Ontario Store, 9 Ohio St.2d 67, 70, 223 N.E.2d 592 (1967) (holding that it is not

a court's function to pass judgment on the wisdom of the legislature); Groch v. Gen Motors

Corp., 117 Ohio St.3d 192, 2008-Ohio-546 (determining it is not the role, of the courts to

establish legislative policies or to second guess the General Assembly's policy choices).

Moreover, Duncan's argument ignores the fact that this Court "affirm[ed] the judgment of the

court of appeals," which required an allegation of a "physical defect" on the grounds of a

political subdivision in order to satisfy the statutory exception to immunity. M.H. at ¶ 13.

As discussed above, M.K concerned a distinction between indoor and outdoor public

swimming pools being drawn by certain appellate courts, and held that an injury that occurred at

an indoor, public swimming pool occurred "within or on the grounds of a building used in

11

connection with a governmental function" as that phrase is used in R.C. 2744.02(B)(4). See

M.K at ¶ 11. Importantly, however, the opinion contains no analysis of the phrase "physical

defect," which was the sole issue before the Court of Appeals in this case. Because no conflict

exists between M.H. and the Immunity Order, the Court of Appeals properly rejected Duncan's

motion for an enlargement of time in which to file a motion to reconsider.

Significantly, in reaching its decisions in this case, the Court of Appeals did not deviate

from the mandates of the General Assembly or from this Court's precedent, nor did it impose a

novel, rogue interpretation of the law. Because this proposition of law merely attempts to

misinterpret this Court's decision in M.K and improperly use it overrule the lawful

pronouncements of the legislature, it does not raise an issue of public or great general interest.

CONCLUSION

For all of the foregoing reasons, this case does not involve a matter of public or great

general interest. Accordingly, this Court should decline to exercise jurisdiction to decide the

case on the merits.

Respectfully submitted,

MICHAEL DEWINEAttorney General of Ohio

4-MAmanda M. Lee(5467)aleffler(t_)brouse. comJohn C. Fairweather (0018216)Jfairweathergbrouse.comBrouse McDowell388 South Main Street, Suite 500Akron, Ohio 44311-4407(330) 535-5711/(330) 253-8601 (fax)

Caroline L. Marks (0071150)

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cmarksgbrouse.comAlexandra V. Dattilo (0086444)adattilogbrouse.comBrouse McDowell600 Superior Avenue East, Suite 1.600Cleveland, Ohio 44114(216) 830-6830/(216) 830-6807 (fax)

Outside Counsel to the Attorney GeneralAttoNneys for Defendants-Appellees

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was sent by ordinary U.S. mail this 12th day

of April, 2013, to the following:

Blake A. Dickson, Esq.Mark D. Tolles, Esq.THE DICKSON FIRM, L.L.C.Enterprise Place, Suite 4203401 Enterprise ParkwayBeachwood, Ohio 44122

Counselfor Plaintiff

One of the Attorney for Defendan - pellees

#856919v6

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