RL - D Counsel for Appellee-Respondent, Jillian Johnson OCT 1 ^ 2010 CLERK of COURT SUPREIUIE COURT of OHIO , TABLE of CONTENTS

ORIGINAL

3Jn the ^&upreme Court of fjio

STATE OF OHIO, ex rel., Case No. 2010-505 OLIVIA JOHNSON (WIDOW), On Appeal from the Relator-Appellant, Franklin County Court of Appeals, vs. Tenth Appellate District

INDUSTRIAL COMMISSION OF OHIO, Court of Appeals et al., Case No. 08AP-1006

Respondents-Appellees.

MERIT BRIEF OF APPELLEE, INDUSTRIAL COMMISSION OF OHIO

DUSTIN S. LEWIS (0082686) RICHARD CORDRAY The Pyle Law Firm LLC Ohio Attorney General 33565 Solon Road Solon, Ohio 44139 SANDRA E. PINKERTON (0062217) 440-914-5297 Assistant Attorney General 440-914-0377 Workers' Compensation Section Counsel for Appellant-Relator, 150 East Gay Street, 22nd Floor Olivia Johnson Columbus, Ohio 43215 614-466-6696 TIMOTHY J. KRANTZ (0025671) 614-728-9535 fax 18300 Snow Road [email protected] Brook Park, Ohio 44142 Counsel for Appellee-Respondent, 216-676-3897 Industrial Commission of Ohio 216-676-3348 fax Counsel for Appellee-Respondent, ALBERT C. SAMMON (0022675) Ford Motor Co. Sammon & Bolmeyer Co., L.P.A. 160 Rockefeller Building 614 Superior Avenue, N.W. Cleveland, OH 44113 216-781-7990 216-781-6580 RL - D Counsel for Appellee-Respondent, Jillian Johnson OCT 1 ^ 2010 CLERK OF COURT SUPREIUIE COURT OF OHIO , TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... ii

INTRODUCTION ...... 1

STATEMENT OF FACTS ...... 2

ARGUMENT ...... 6

Appellee Industrial Commission's Proposition of Law No. 1 :...... 6

A party cannot assign as error on appeal the court's adoption of any finding offact or conclusion of law unless the party has objected to that finding or conclusion under to Civ. R. 53 (D) (3) (b) (iv) ...... 6

Appellee Industrial Commission's Proposition of Law No. 2 :...... 8

To establish a right to workers' compensation death benefits, a putative common law spouse must establish by clear and convincing evidence that the injured worker and the putative spouse had a present intent to marry during the period after both parties were competent to marry but before common law marriage was abolished in Ohio ...... :...... 8

CERTIFICATE OF SERVICE ...... 13

APPENDIX ...... 14

R.C. 3105.12 ...... Appendix 1 R.C. 4123.54 ...... Appendix 2 R.C. 4123.60 ...... Appendix 5 Civ.R. 53 ...... Appendix 6 Tenth Appellate Judicial District Loc.R. 12 ...... Appendix 10 Gorta v. Gorta, 9th Dist. No. 96CA006634, 1997 Ohio Dist. LEXIS 4634.....Appendix 16

i TABLE OF AUTHORITIES

Cases

Brown v. Zurich US Franklin App. No. 02AP-9, 2002-Ohio-6099 ...... 8

Cross v. Ledford (1954), 161 Ohio St. 469 ...... 9

Duncan v. Duncan (1859), 10 Ohio St. 181 ...... 9

Goldfuss v. Davidson (1997), 79 Ohio St.3d 116 ...... 8

Gorta v. Gorta 9th Dist. No. 96CA006634, 1997 Ohio Dist. LEXIS 4634 ...... 10

Hill v. Hill 5th Dist. No. 07 CA 4, 2008-Ohio-2774 ...... 9

Nestor v. Nestor (1984), 15 Ohio St.3d 143 ...... 5, 8, 9

St. John-Boyd v. Boyd 8th Dist. No. 89047, 2007-Ohio-5336 ...... 10

State ex rel. Abate v. Indus. Comm. 96 Ohio St.3d 343, 2002-Ohio-4796 ...... 8

State ex rel. Athey v. Indus. Comm. 89 Ohio St.3d 473, 2000-Ohio-489 ...... 11

State ex rel. Booher v. Honda ofAm. Mfg. 88 Ohio St.3d 52, 2000-Ohio-269 ...... 8

State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d 373 ....:...... 11

State ex rel. Wilson v. Indus. Comm. 100 Ohio St.3d 23, 2003-Ohio-4832 ...... 8

Sulfridge v. Kindle 4th Dist. No. 04CA795, 2005-Ohio-3929 ...... 9, 11

ii Umbenhower v. Labus (1912), 85 Ohio St. 238 ...... 8

Statutes

R.C. 147.03 ...... 3

R.C. 3105.12 ...... 10

R.C. 4123.54 ...... 1,2

R.C. 4123.60 ...... 4

Other Authorities

Civ.R. 53 ...... 6,7

Tenth Appellate Judicial District Loc.R. 12 ...... 6

iii INTRODUCTION

This is an appeal of right from a workers' compensation mandamus action originating in the Tenth District Court of Appeals. The court of appeals found that Appellee, Industrial

Commission of Ohio ("commission"), did not abuse its discretion when it granted death benefits

under R.C. 4123.54(A) to Appellee, Jillian Johnson ("Jillian"), for the death of her father, the

injured worker, Silas Johnson ("Silas") from malignant mesothelioma, which he contracted

during his employment with Appellee, Ford Motor Company ("Ford"). Appellant, Olivia

Johnson ("Olivia"), sought a writ of mandamus asserting that the commission failed to properly

consider all the evidence presented supporting her common law marriage to Silas and, thus, the

commission abused its discretion by denying her workers' compensation death benefits.

However, the Tenth District found the commission was within its discretion to consider

only the evidence during the short fourteen-month period between Silas's divorce and the

abolishment of common law marriage by Ohio law. The court held that, contrary to Olivia's

argument, the commission was not required to give greater weight to the evidence of marriage

created after common law marriage was abolished. "Some evidence" supported the

commission's denial of death benefits to Olivia, and therefore the appellate court's denial of the

requested writ of mandamus was proper and should be affirmed.

Olivia presents her same flawed argument to this Court. However, Olivia failed to object to

the magistrate's decision below, thus waiving her right to appeal to this court. Moreover, the

merits of her argument also fail. The weight and credibility of the evidence are wholly within the

commission's discretion; the commission need not gave any weight to evidence of marriage

outside the fourteen-month window of competency. The commission respectfully requests that

this Court affirm the Tenth District's decision to deny a writ of mandamus.

1 STATEMENT OF FACTS AND OF THE CASE

A. Silas Johnson had an allowed claim for mesothelioma and died from it in 2006; both his daughter Jillian and his purported common-law wife Olivia applied for death benefits.

During his lifetime, Silas applied and received workers' compensation benefits for

mesothelioma as an occupational disease. (Appendix to the Merit Brief of Appellant Olivia

Johnson at p. 9 ("Johnson App. _")). Silas died of mesothelioma on January 6, 2006, and both

Olivia and Jillian applied for death benefits under R.C. 4123.54. (Johnson App. 9).

B. Silas legally married Jillian's mother, Eleanor, in 1963; they were divorced in 1989.

Silas ceremonially married Eleanor Johnson in 1963 and from that marriage Jillian and two

other children were born, but only Jillian was under age 25 at the time of Silas's death. (Johnson

App.9). After multiple separations and reconciliations, the couple divorced on July 28, 1989.

(Johnson App.9). Silas and Eleanor filed a joint tax return for 1987 and had an unknown joint

tax liability for 1988 at the time of their divorce. (Johnson App. 8).

C. Olivia asserts that she and Silas established a common law marriage between Silas's divorce in 1989 and 1991, when Ohio abolished common law marriage, but only one of her supporting documents is dated during the pertinent period.

Olivia asserts that she and Silas established a common law marriage between July 28, 1989,

and October 10, 1991, (the "pertinent period) before Ohio abolished common law marriage by

statute.

Olivia alleges that she and Silas began cohabitating in 1985 and married by common law

some time in 1987. (Johnson App.9). To support her position, Olivia submitted documents from

the period before Silas was divorced: (1) an insurance policy from 1986 listing Olivia and Silas

as husband and wife; and a 1987 probate court judgment entry that Olivia changed her name

from Durham to Johnson (Johnson App. 9-10). Olivia also submits several documents dated after

2 common law marriage was abolished in 1991: (1) a 1992 occupancy inspection application; (2) a

1997 application to add Silas to Olivia's health plan; (3) her 1999 retirement benefits beneficiary designation form; (4) Silas's 2004 letter requesting social security benefits; and (5) a witnessed statement from February 1993 that Silas and Olivia have been and hold themselves out as husband and wife since 1987. (Johnson App.10). The only document Olivia submitted during the pertinent period was a questionable "AFFIDAVIT" signed by both Silas and Olivia and purportedly notarized' on August 11, 1990, that Silas and Olivia held themselves out as husband and wife to family and friends and have since August 11, 1990. (Johnson App.10).

Ford submitted (1) Olivia's tax returns for 1989-1991 that list her filing status as "head of household"Z (Appendix to Merit Brief of Ford Motor Company at p. 12-23 ("Ford App. ");

(2) Silas's tax returns for the same years that likewise list his status as "head of household" (Ford

App. 6-11); (3) Olivia's 1991 application for disability retirement benefits from Ohio's Public

Employees' Retirement System showing that she had no spouse (Ford App. 24); (4) tax

documents showing that Olivia's checking account was held jointly in 1991 with someone other

than Silas. (Ford App. 26, Johnson App.10-11).

1 Ford questioned the validity of the August 11, 1990, affidavit due to a discrepancy in the notary's expiration date. Donna Hunt allegedly notarized the 1990 affidavit listing that her commission expired on August 25, 1995. Ms. Hunt first became a notary on August 12, 1980, and, pursuant to R.C. 147.03, she timely renewed her notary registration three times, in 1985, 1990 and 1995. Thus, from 1980 to 2000, including the date of the alleged 1990 affidavit, Ms. Hunt's commission expiration date was Aug u st 12. (Johnson App. 48). In 2000, however, Ms. Hunt renewed her commission 13 days late and her commission expiration date moved to Au.gust 25, 2005. (Johnson App.48). Ford argued that a notary whose commission expired on the same month and day for twenty years (ten years when the purported affidavit was signed) would not suddenly make a clerical error about her expiration date. Ford argued that, given the expiration date listed, it was more likely that the affidavit was created after 2000 when Hunt's commission- expiration date was August 25, and back-dated to 1990. (Johnson App.48-49). Z To qualify as "head of household," a taxpayer must be unmarried or considered unmarried, e.g. not cohabitating as husband and wife. IRS Pub. 501. 3 At a hearing before a District Hearing Officer ("DHO"), various family members testified as to their observations and discussions with Olivia and Silas. (Johnson App. 26-73). During her testimony, Olivia asserted that she and Silas were married by common law in April 1987.

(Johnson App. 36). Olivia also testified that she and Silas purposely filed their taxes as single heads of households. (Johnson App. 38). Throughout her testimony, Olivia indicated the she and

Silas held themselves out as married to authoritative entities, e.g. employers and government, only when it was beneficial to them. She specifically stated:

Q: And all these letters you sent to the Industrial Commission and to the lawyers saying you were married in 1987, and as of May 15th of 2006, you continued to say that, right? A: And I still say it.

*+^*

A: You know what? We use whatever we have to use for whatever purpose. If it was for buying a home or whatever - Q: And you would change the date? A: --we would do whatever we had to do.

(Johnson App.45).

D. The Industrial Commission awarded Jillian's claim, and denied Olivia's claim, for workers' compensation death benefits.

The DHO awarded Jillian death benefits and payment of her father's accrued benefits, and

denied Olivia's claim for death benefits. (Johnson App.16). The DHO found that Olivia failed to

establish a common law marriage during the pertinent period. (Johnson App.17).

On appeal, a Staff Hearing Officer ("SHO") affirmed the DHO order and allowed death

benefits for Jillian, ordered payment of Silas's accrued benefits to Jillian under R.C. 4123.60 but

denied Olivia's application for death benefits. (Johnson App.21). The SHO discussed the legal

requirements to establish common law marriage and found that, rather than supporting a common

law marriage, the contemporaneous documents during the pertinent period demonstrate that Silas

4 and Olivia did not hold themselves out as married to the entire general community. (Johnson

App.21). The SHO found that:

tax returns and other documents filed contemporaneously with the pertinent period in question (07/29/1989 through 10/10/1991) all support the conclusion that Silas Johnson and Olivia Johnson were not married common law, but rather, living together as single individuals.

(Johnson App.22). The SHO also acknowledged the questionable validity of the August 1990

affidavit and found that Olivia failed to prove a common law marriage. (Johnson App.22). The

commission refused Olivia's appeal. (Johnson App.23).

E. Olivia filed this action in mandamus, and the Court of Appeals found no abuse of discretion by the Commission. Olivia did not object to the magistrate's decision.

Two years later, after Jillian graduated from college, Olivia filed the instant mandamus

action with the Tenth District, asserting that the commission abused its discretion in denying her

application for death benefits.

The appellate court adopted its Magistrate's Decision and found no abuse of discretion by

the commission. The magistrate issued her decision on October 13, 2009. (Johnson App.8). After

enumerating the facts and the commission orders, the magistrate recommended that the court

deny the requested writ. (Johnson App. 12). Relying on Nestor v. Nestor (1984), 15 Ohio St.3d

143, the magistrate found that the parties to a common law marriage must demonstrate an

agreement to marry in praesenti, and that, absent direct evidence of such agreement,

"cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the

community in which they reside" are proof of the marriage. (Johnson App.13). The magistrate

concluded that while cohabitation and community reputation may infer marriage, the weight the

inference depends upon the circumstances in each case. (Johnson App.14). The magistrate also

stated that Olivia did not challenge the validity of the documentary evidence but rather argued

5 that with the documentary evidence, albeit dated after October 1991, "she presented a greater quantity and quality of evidence which, in her opinion, the commission ... should have [] considered and given significant weight." (Johnson App.14). The magistrate disagreed, finding that there was no evidence that the commission ignored the post-abolishment documents and the commission was not required to explain why it did not rely on the post-abolishment evidence.

(Johnson App.14) The magistrate also found that the weight or credibility of any evidence is

within the sound discretion of the commission as fact-finder and, contrary to Olivia's argument,

the commission was not required to give greater weight to the post-abolishment evidence. The

magistrate recommended that the court deny Olivia's request for a writ of mandamus.

None of the parties objected to the Magistrate's Decision. On February 2, 2010, the Tenth

District, recognizing that no objections were filed, adopted the Magistrate's Decision under to

Civ.R. 53 and denied the requested writ of mandamus. Olivia filed her notice of appeal to this

Court on March 19, 2010.

ARGUMENT

Appellee Industrial Commission's Proposition of Law No. 1:

A party cannot assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under to Civ.R. 5 3 (D) (3) (b) (i v).

Olivia cannot assert that the appellate court erred in its findings of fact or conclusions of

law, when she failed to object to the magistrate's decision which the appellate court adopted.

Loc.R. 12(M)(3) of the Tenth Appellate Judicial District states: "[w]ithin fourteen days of the

filing of a magistrate's decision, a party may file written objections to the magistrate's decision."

This is consistent with the time-frame for the filing of objections to a magistrate's decision under

6 Civ.R. 53(D)(3)(b)(i). Olivia's appeal to this Court is in direct contravention with the Civil

Rules, which clearly mandate that a party object to a fmding before appealing the same finding:

Except for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ. R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Civ. R. 53(D)(3)(b).

Civ. R. 53(D)(3)(b)(iv). (Emphasis added). Olivia was required to object to the magistrate's decision in order to perfect her appeal to this Court on the same issue.

Olivia cannot argue on appeal that the appellate court erred when she failed to object to the same alleged error in the magistrate's decision which the appellate court adopted. Before the magistrate, Olivia argued that the commission failed to consider and give sufficient weight to the greater quantity and quality of evidence that she presented. (Johnson App.14). The magistrate concluded that commission, as fact-finder, was the sole judge of the weight and credibility of the evidence and, thus, was not required to give greater weight to the post-abolishment evidence

Olivia presented, despite the alleged greater quantity or quality of such evidence. (Johnson

App.14-15). The Tenth District, noting the lack of objections, adopted the magistrate's decision

without change. (Johnson App.7).

Olivia now, on appeal, argues that both the appellate court and the commission failed to

consider the "totality of the circumstances" regarding the common law marriage between Silas

and Olivia. Appellant's Brief at p. 3. Olivia again asserts that documents and testimony

regarding actions that occurred outside the pertinent period establish the common law marriage

and should be afforded greater weight in the commission's decision. Appellant's Brief at p. 4.

Olivia effectively waived her right to appeal that alleged error when she failed to object to the

magistrate's decision on the same issue. State ex rel. Wilson v. Indus. Comm., 100 Ohio St.3d

7 23, 2003-Ohio-4832 (per curiam); State ex rel. Abate v. Indus. Comm., 96 Ohio St.3d 343, 2002-

Ohio-4796 (per curiam); State ex rel. Booher v. Honda of Am. Mfg., 88 Ohio St.3d 52, 2000-

Ohio-269 (per curiam). Nor does the plain error doctrine revive Olivia's appeal; this case does not involve "exceptional circumstances where error seriously affects the basic fairness, integrity, or public reputation of the judicial process itself." Brown v. Zurich US, Franklin App. No.

02AP-9, 2002-Ohio-6099, ¶27 (citing to Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, syllabus).

Because she failed to object in accordance with the local and civil rules, Olivia cannot

legitimately pursue her appeal to this Court. Accordingly, the decision and judgment of the

appellate court must be summarily affirmed.

Appellee Industrial Commission's Proposition of Law No. 2:

The commission did not abuse its discretion in denying death benefits when Olivia failed to

prove by clear and convincing evidence that she and Silas entered into a common law marriage

after Silas was competent to marry, but before Ohio abolished the institution. A common law

marriage was established in Ohio before October 10, 1991, when the proponent demonstrates, by

clear and convincing evidence, the following: "(1) an agreement to marry in praesenti, (2) made

by persons competent to contract, (3) accompanied and followed by cohabitation as man and

wife, (4) subsequently holding oneself out as being married, and (5) gaining a reputation as being

(1912), married." Nestor v. Nestor (1984), 15 Ohio St.3d 143, 145, citing Umbenhower v. Labus

85 Ohio St. 238, at the syllabus. "The agreement to marry inpraesenti is the essential element of

a common law marriage and... [i]ts absence precludes the establishment of' a common law

8 marriage. Nestor, 15 Ohio St.3d at 146. In Duncan v. Duncan (1859), 10 Ohio St. 181, this Court considered whether "a contract for a future marriage, followed by cohabitation as husband and wife, is itself a valid marriage at common law," and held that such future intent was not sufficient to support a common law marriage. Id. at 188. Absent direct evidence of the present intent to marry, "cohabitation and community reputation tend[] to raise [only] an inference of the marriage." Nestor, 15 Ohio St.3d at 146. While "cohabitation and reputation are necessary

elements of a common law marriage, ... standing alone they do not constitute a common law

marriage." Id. "Clear and convincing evidence is: `that measure or degree of proof which is

more than a mere `preponderance of the evidence,'...and which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established."' Hill v. Hill, 5th

469, Dist. No. 07 CA 4, 2008-Ohio-2774, ¶90, quoting Cross v. Ledford (1954), 161 Ohio St.

paragraph three of the syllabus. Thus, Olivia, as the proponent of her marriage to Silas, must

establish, by clear and convincing evidence, not only cohabitation and reputation but also the

essential element of a present intent to marry.

Evidence of their intent to marry before Silas's divorce is irrelevant. "Because polygamy is

prohibited in Ohio, a person cannot establish a common law marriage while that person is still

lawfully married to another... Thus, any testimony or evidence concerning the period prior to

such date is not relevant." Hill v. Hill, supra, at ¶ 91; see also Sulfridge v. Kindle, 4th Dist. No.

04CA795, 2005-Ohio-3929, ¶ 15. Olivia steadfastly claims that she and Silas agreed to marry in

1987. Johnson App.36. However, Silas divorced Jillian's mother, Eleanor, on July 28, 1989,

and thus he was not competent to remarry until after that date. Consequently, any evidence of an

intent to marry before July 29, 1989, is wholly irrelevant. Accordingly, Olivia's 1987 name

9 change and the 1986 joint insurance policy cannot demonstrate a valid intent to marry. The commission and the appellate court properly disregarded those documents.

Any evidence of Olivia's and Silas's intent to marry after Ohio abolished the institution is likewise irrelevant. Effective October 10, 1991, Ohio abolished common law marriage but provided that those common law marriages established prior to that date remain valid. R.C.

3105.12(B)(1) and (2). Documents and evidence dated after the abolishment are "of questionable value" but may "have some bearing on the state of mind of the parties" before October 10, 1991.

Gorta v. Gorta, 9th Dist. No. 96CA006634, 1997 Ohio Dist. LEXIS 4634, at *6, attached in the

Appendix. Later evidence may be considered if "[t]he evidence post 1991 bolsters the evidence prior to 1991." St. John-Boyd v. Boyd, 8th Dist. No. 89047, 2007-Ohio-5336, ¶18. However, there is no support for Olivia's argument that her post-1991 evidence supporting a marriage can

overcome the contrary contemporaneous evidence from the pertinent period, e.g. the 2004 joint

tax return cannot overcome years of tax returns filed separately. Moreover, unlike the evidence

in Gorta which occurred one month to two years after abolishment of common law marriage,

Olivia argues that the commission must give greater weight to her evidence dated nearly fifteen

years after abolishment. The commission did not abuse its discretion in finding Olivia's post-

abolishment evidence unpersuasive to establish that a present intent to marry during the pertinent

period. Accordingly, the appellate court should be affirmed.

Moreover, marriage is not a cloak that one dons when convenient but sheds when

unfavorable as Olivia and Silas did. A party "cannot claim [another] as his wife for financial

gain and deny her when there is a financial detriment." Boyd, supra at ¶ 18. Olivia's testimony

demonstrates that she and Silas donned the cloak of marriage to protect their community

reputation, secure favorable financing, gain retirement benefits or claim workers' compensation

10 death benefits, but purposefully denied their marriage for nearly 14 years to avoid the so-called

"marriage penalty" and reduce their tax obligations by using single head-of-household status on both of their income tax returns. (Johnson App.36-39).

Olivia's argument also ignores the broad discretion of the commission as fact-finder. "It is immaterial whether other evidence, even if greater in quality and/or quantity, supports a decision contrary to the commission's." State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d

373. The "commission is the exclusive evaluator of [the] weight and credibility" afforded the evidence presented. State ex rel. Athey v. Indus. Comm., 89 Ohio St.3d 473, 2000-Ohio-489, emphasis added; see also, Sulfridge at ¶¶20-21. Despite Olivia's argument that her evidence was greater in quality or quantity or that evidence of her long-term cohabitation with Silas should be

granted greater persuasive weight, the Tenth District properly held that commission was within it

discretion to reject all post-abolishment evidence as unpersuasive. The commission was wholly

within its discretion to deny Olivia death benefits. Accordingly, this court should affirm the

appellate court's decision denying the requested writ of mandamus.

CONCLUSION

The Tenth District properly found that the commission order is supported by "some

evidence" that Olivia and Silas did not establish a legal common law marriage. The evidence

shows that Olivia and Silas donned the cloak of marriage only when beneficial but never when

detrimental to their personal or financial interests. The appellate court found that the

commission was wholly within its discretion to reject any evidence of marriage before Silas was

competent to remarry or after common law marriage was abolished. The appellate court reasoned

that the commission's denial of death benefits due to a lack of evidence that Olivia and Silas

11 established a common law marriage during the pertinent period was supported by the case law and some evidence.

Accordingly, the Tenth District should be affirmed and Olivia's request for a writ of mandamus denied.

Respectfully submitted,

E. PINKERTON (0062217) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22nd Floor Columbus, Ohio 43215 614-466-6696 [email protected]

Counsel for Respondent, Industrial Commission of Ohio

12 CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Merit Brief of Appellee, Industrial

Commission of Ohio, was served, postage-paid regular mail, this d_ day of October 2010, on:

Dustin S. Lewis Albert C. Sammon THE PYLE LAW FIRM, LLC SAMMON & BOLMEYER 33565 Solon Road 160 Rockefeller Building Solon, Ohio 44139 614 Superior Avenue, N.W. Cleveland, OH 44113 Attomey for Appellant, Olivia Johnson Attorney for Appellee, Jillian Johnson

Timothy J. Krantz 18300 Snow Road Brook Park, Ohio 44142

Attorney for Appellee, Ford Motor Compan),

f SANDRA P. PINKERTON Assistant Attorney General

13 APPENDIX Ohio Statutes Title 31. DOMESTIC RELATIONS - CHILDREN Chapter 3105. DIVORCE, ALIMONY, ANNULMENT, DISSOLUTION OF MARRIAGE Current through legislation filed and passed through 6/18/2010 § 3105.12. Proof of marriage (A) Except as provided in division (B) of this section, proof of cohabitation and reputation of the marriage of a man and woman is competent evidence to prove their marriage, and, in the discretion of the court, that proof may be sufficient to establish their marriage for a particular purpose.

(B)(1) On and after October 10, 1991, except as provided in divisions (B)(2) and (3) of this section, common law marriages are prohibited in this state, and the marriage of a man and woman may occur in this state only if the marriage is solemnized by a person described in section 3101.08 of the Revised Code and only if the marriage otherwise is in compliance with Chapter 3101. of the Revised Code.

(2) Common law marriages that occurred in this state prior to October 10, 1991, and that have not been terminated by death, divorce, dissolution of marriage, or annulment remain valid on and after October 10, 1991.

(3) Common law marriages that satisfy all of the following remain valid on and after October 10, 1991:

(a) They came into existence prior to October 10, 1991, or come into existence on or after that date, in another state or nation that recognizes the validity of common law marriages in accordance with all relevant aspects of the law of that state or nation.

(b) They have not been terminated by death, divorce, dissolution of marriage, annulment, or other judicial determination in this or another state or in another nation.

(4) On and after October 10, 1991, all references in the Revised Code to common law marriages or common law marital relationships, including the references in sections 2919.25, 3113.31, and 3113.33 of the Revised Code, shall be construed to mean only common law marriages as described in divisions (B)(2) and (3) of this section.

History. Effective Date: 05-07-2004

Appendix 1 Page I

*** ARCHIVE MATERIAL *** * CURRENT THROUGH LEGISLATION PASSED BY THE 126TH OHIO GENERAL ASSEMBLY * * AND FILED WITH THE SECRETARY OF STATE THROUGH DECEMBER 18, 2005 * * ANNOTATIONS CURRENT THROUGH OCTOBER 1, 2005 *

CHAPTER 4123. WORKERS' COMPENSATION, COMPENSATION; BENEFITS ORCAnn. 4123.54 (2005)

§ 4123.54. Compensation in case of injury or death; chemical tests; agreement if work performed in another state

(A) Every employee, who is injured or who contracts an occupational disease, and the dependents of each employee who is killed, or dies as the result of an occupational disease contracted in the course of employment, wherever such injury has occurred or occupational disease has been contracted, provided the same werenot: (1) Purposely self-inflicted; or (2) Caused by the employee being intoxicated or under the influence of a controlled substance not prescribed bya physician where the intoxication or being under the influence of the controlled substance not prescribed by a physician was the proximate cause of the injury, is entitled to receive, either directly from the employee's self-insuring eniployer as provided in section 4123.35 of the Revised Code, or from the state insurance fund, the compensation for loss sustained on account of the injury, occupational disease, or death, and the medical, nurse, and hospital services and medicines, and the amount of funeral expenses in case of death, as are provided by this chapter. (B) For the purpose of this section, provided that an employer has posted written notice to employees that the results of, oi- the eniployee's refusal to submit to, any chemical test described under this division may affect the einpfoyee's eligibility for coinpensation and benefits pursuant to this chapter and Chapter 4121. of the Revised Code, there is a rebuttable presumption that an employee is intoxicated or under the influence of a conti-olled substance not prescribed by the employee's physician and that being intoxicated or under the influence of a controlled substance not prescribed by the employee's physician is the proximate cause of an injury under either of the following conditions: (1) When any one or more of the following is true: (a) The employee, through a qualifying chemical test administered within eight hours of an injury, is determined to have an alcohol concentration level equal to or in excess of the levels established in divisions (A)(2) to (7) of section 4511.19 of the Revised Code; (b) The employee, through a qualifying chemical test administered within thirty-two hours of an injury, is determined to have one of the following controHed substances not prescribed by the employee's physician in the employee's system that tests above the following levels in an enzyme multiplied immunoassay technique screening test and above the levels established in division (B)(3) of this section in a gas chromatography mass spectrometry test: (i) For amplietamines, one thousand nanograms per milliliter of urine; (ii) For cannabinoids, fifty nanograms per milliliter of urine; (iii) For cocaine, including crack cocaine, three hundred nanograms per milliliter of urine; (iv) For opiates, two thousand nanograms per milliliter of urine; (v) For phencyclidine, twenty-five nanograms per milliliter of urine.

Appendix 2 Page 2 ORC Ann. 4123.54

(c) The employee, through a qualifying chemical test administered within thirty-two hours of an injury, is determined to have one of the following controlled substances not prescribed by the employee's physician in the employee's system that tests above the following levels by a gas chromatography mass spectrometry test: (i) For amphetamines, five hundred nanograms per milliliter of urine; (ii) For cannabinoids, fifteen nanograms per milliliter of urine; (iii) For cocaine, including crack cocaine, one hundred fifty nanograms per milliliter of urioe; (iv) For opiates, two thousand nanograms per milliliter of urine; (v) For phencyclidine, twenty-five nanograms per milliliter of urine. (d) The employee, through a qualifying chemical test administered within thirty-two hours of an injury, is determined to have barbiturates, benzodiazepines, methadone, or propoxyphene in the employee's system that tests above levels established by laboratories certified by the United States department of health and human services. (2) When the employee refuses to submit to a requested chemical test, on the condition that that employee is or was given notice that the refusal to submit to any chemical test described in division (B)(1) may affect the employee's eligibility for compensation and benefits under this chapter and Chapter 4121. of the Revised Code. (C) (1) For purposes of division (B) of this section, a chemical test is a qualifyingchemicaltest if it is administered to an employee after an injury under at least one of the following conditions: (a) When the employee's employer had reasonable cause to suspect that the employee niay be intoxicated or under the influence of a controlled substance not prescribed by the employee's physician; (b) At the request of a police of6cer pursuant to section 4511.191 [4.511.19.1] of the Revised Code, and not at the request of the employee's employer; (c) At the request of a licensed physician who is not employed by the employee's employer, and not at the request of the employee's employer. (2) As used in division (C)(1)(a) of this section, "reasonable cause" means, but is not limited to, evidence that an employee is or was using alcohol or a controlled substance drawn from specific, objective facts and reasonable inferences drawn from these facts in light of experience and training. These facts and inferences may be based on, but are not limited to, any of the following: (a) Observable phenomena, such as direct observation of use, possession, or distribution of alcohol or a controlled substance, or of the physical symptoms of being under the influence of alcohol or a controlled substance, such as but not limited to slurred speech, dilated pupils, odor of alcohol or a controlled substance, changes in affect, or dynamic mood swings; (b) A pattern of abnormal conduct, erratic or aberrant behavior, or deteriorating work performance such as frequent absenteeism, excessive tardiness, or recurrent accidents, that appears to be related to the use of alcohol or a controlled substance, and does not appear to be attributable to other factors; (c) The identification of an employee as the focus of a criminal investigation into unauthorized possession, use, or trafficking of a controlled substance; (d) A report of use of alcohol or a controlled substance provided by a reliable and credible source; (e) Repeated or flagrant violations of the safety or work rules of the employee's employer, that are determined by the employee's supervisor to pose a substantial risk of physical injury or property damage and that appear to be related to the use of alcohol or a controlled substance and that do not appear attributable to other factors. Appendix 3 Page 3 ORC Ann. 4123.54

(D) Nothing in this section shall be construed to affect the rights of an employer to test employees for alcohol or controlled substance abuse. (E) For the purpose of this section, laboratories certit•ied by the United States department of health and human services or laboratories that meet or exceed the standards of that department for laboratory certifica- tion shall be used for processing the test results of a qualifying chemical test. (F) The written notice required by division (B) of this section shall be the same size or larger then the certificate of premium paytnent notice furnished by the bureau of workers' compensation and shall be posted by the employer in the same location as the certificate of premium payment notice or the certificate of self- insurance. (G) Whenever, with respect to an employee of an employer who is subject to and has complied with this chapter, there is possibility of conflict with respect to the application of workers' compensation laws because the contract of employment is entered into and all or some portion of the work is or is to be performed in a state or states other than Ohio, the employer and the employee may agree to be bound by the laws of this state or by the laws of some other state in which all or some portion of the work of the employee is to be per- fonned. The agreement shall be in writing and shall be filed with the bureau of workers' compensation within ten days after it is executed and shall remain in force until terminated or modified by agreement of the parties similarly filed. If the agreement is to be bound by the laws of this state and the employer has complied with this chapter, then the employee is entitled to compensation and benefits regardless of where the injury occurs or the disease is contracted and the rights of the employee and the employee's dependents under the laws of this state are the exclusive remedy against the employer on account of injury, disease, or death in the course of and arising out of the employee's employment. If the agreement is to be bound by the laws of another state and the employer has complied with the laws of that state, the rights of the employee and the employee's dependents under the laws of that state are the exclusive remedy against the einployer on account of injury, disease, or death in the course of and arising out of the employee's employment without regard to the place where the injury was sustained or the disease contracted. If any employee or the employee's dependents are awarded workers' compensation benefits or recover damages from the employer under the laws of another state, the amount awarded or recovered, whether paid or to be paid in future installments, shall be credited on the amount of any award of compensation or benefits made to the employee or the employee's dependents by the bureau. If an employee is a resident of a state other than this state and is insured under the workers' compensation law or similar laws of a state other than this state, the employee and the employee's dependents are not entitled to receive compensation or benefits under this chapter, on account of injury, disease, or death arising out of or in the course of employment while temporarily within this state, and the rights of the employee and the employee's dependents under the laws of the other state are the exclusive remedy against the employer on account of the injury, disease, or death. (H) Compensation or benefits are not payable to a claimant during the period of confinement of the elaimant in any state or federal correctional institution whether in this or any other state for conviction of violation of any state or federal criniinal law.

HISTORY: GC § 1465-68; 103 v 72, § 21; 111 v 220; 117 v 109; 119 v 565; Bureau of Code Revision, 10- 1-53; 128 v 743(755) (Eff 11 -2-59); l36 v S 545 (Eff 1-17-77); 137 v H 1282 (Eff 1-1-79); 141 v S 307 (Eff 8-22-86); 143 v H 222 (Eff 11-3-89); 145 v Il l07 (Eff 10-20-93); 145 v H 571 (Eff 10-6-94); 147 v S 45; 148 v H 122. Eff 4-10-2001; l50 v H 163, § l, eff. 9-23-04; 150 v H 223, § l, eff. 10-13-04. NOTES: EFFECT OF AMENDMENTS 150 v H 223, effective October 13, 2004, rewrote (B); and inserted (C) through (F) and redesignated the remaining subsections accordingly. 150 v H 163, effective September 23, 2004, corrected internal references. Appendix 4 Ohio Statutes Title 41. LABOR AND INDUSTRY Chapter 4123. WORKERS' COMPENSATION Current through legislation filed and passed through 6/18/2010 § 4123.60. Persons eligible for death benefits - limitations Benefits in case of death shall be paid to such one or more of the dependents of the decedent, for the benefit of all the dependents as the administrator of workers' compensation determines. The administrator may apportion the benefits among the dependents in such manner as he deems just and equitable. Payment to a dependent subsequent in right may be made, if the administrator deems it proper, and operates to discharge all other claims therefor. The dependents or person to whom benefits are paid shall apply the same to the use of the several beneficiaries thereof according to their respective claims upon the decedent for support, in compliance with the finding and direction of the administrator.

In all cases of death where the dependents are a surviving spouse and one or more children, it is sufficient for the surviving spouse to apply to the administrator on behalf of the spouse and minor children. In cases where all the dependents are minors, a guardian or next friend of such minor dependents shall apply.

In all cases where an award had been made on account of temporary, or permanent partial, or total disability, in which there remains an unpaid balance, representing payments accrued and due to the decedent at the time of his death, the administrator may, after satisfactory proof has been made warranting such action, award or pay any unpaid balance of such award to such of the dependents of the decedent, or for services rendered on account of the last illness or death of such decedent, as the administrator determines in accordance with the circumstances in each such case. If the decedent would have been lawfully entitled to have applied for an award at the time of his death the administrator may, after satisfactory proof to warrant an award and payment, award and pay an amount, not exceeding the compensation which the decedent might have received, but for his death, for the period prior to the date of his death, to such of the dependents of the decedent, or for services rendered on account of the last illness or death of such decedent, as the administrator determines in accordance with the circumstances in each such case, but such payments may be made only in cases in which application for compensation was made in the manner required by this chapter, during the lifetime of such injured or disabled person, or within one year after the death of such injured or disabled person.

An order issued by the administrator under this section is appealable pursuant to section 4123.511 of the Revised Code but is not appealable to court under section 4123.512 of the Revised Code.

History. Effective Date: 10-20-1993 Ohio Rules RULES OF CIVIL PROCEI)URE Title VI. TRIALS As amended through July 1, 2010 Rule 53. Magistrates (A) Appointment. A court of record may appoint one or more magistrates who shall be attorneys at law admitted to practice in Ohio-

(B) Compensation. The compensation of magist'rates shall be [ixed by the court, and no part of the compensation shall be taxed as costs under Civ. R. 54(D).

(C) Authority. R. 53(D)(1), magistrates are (I) Scope.To assist courts of record and pursuant to reference under Civ. authorized, subject to the terms of the relevant reference, to do any of the following:

(a) Determine any motion in any case;

(b) Conduct the trial of any case that will not be tried to a jury;

(d) Conduct proceedings upon application for the issuance of a temporary protection order as authorized by law;

(e) Exercise any other authority specifically vested in magist'rates by statute and consistent with this rule.

(2) Regulation of proceedings. In performing the responsibilities described in Civ. R. 53(C)(1), magistrates are authorized, subject to the terms of the relevant reference, to regulate all proceedings as if by the court and to do everything necessary for the efficient performance of those responsibilities, including but not limited to, the following:

(a) Issuing subpoenas for the attendance of witnesses and the production of evidence;

(b) Ruling upon the admissibility of evidence;

(d) Calling the parties to the action and examining them under oath;

(e) When necessary to obtain the presence of an alleged contemnor in cases involving direct or indirect contempt of court, issuing an attachment for the alleged contemnor and setting the type, amount, and any conditions of bail pursuant to Crim. R. 46;

(f) Imposing, subject to Civ. R. 53(D)(8), appropriate sanctions for civil or criminal contempt committed in the presence of the magistrate. Appendix 6 (D) Proceedings in Matters Referred to Magistrates.

(1) Reference by court of record.

(a) Purpose and method.A court of record may, for one or more of the purposes described in Civ. R. 53(C)(1), refer a particular case or matter or a category of cases or matters to a magistrate by a specific or general order of reference or by rule.

(b) Limitation.A court of record may limit a reference by specifying or limiting the magistrate's powers, including but not limited to, directing the magistrate to determine only paiticular issues. directing the magistrate to perform particular responsibilities, directing the magistrate to receive and report evidence only, fixing the time and place for beginning and closing any hearings, or fixing the time for filing any magistrate's decision on the matter or matters referred.

(2) Magistrate's order: motion to set aside magisn^ate's order.

(a) Maglstrate's order.

(i) Nature of order.Subject to the terms of the relevant reference, a magistrate may enter ordeis without judicial approval if necessary to regulate the proceedings and if not dispositive of a claim or defense of a party.

(ii) Form, filing, and service of tnagistrate's order.A magistrate's order shall be in writing, identified as a magistrate's order in the caption, signed by the magistrate, filed with the clerk, and served by the clerk on all parties or their attorneys.

(b) Motion to set aside magistrates ordzr.Any party may file a motion with the court to set aside a magistrate's order. The motion shall state the moving party's reasons with particularity and shall be filed not later than ten days after the magistrate's order is filed. The pendency of a motion to set aside does not stay the effectiveness of the magistrate's order, though the magistrate or the court may by order stay the effectiveness of a magistrate's order.

(3) Magistrate's decision; objections to magistrate's decision.

(a) Magistrate's decision.

(i) When reqttired.Subject to the terms of the relevant reference, a magistrate shall prepare a magistrate's decision respecting any matter referred under Civ. R. 53(D)(1)•

relevant reference, a (ii) Findings of fact and conclusions of laiv. Subject to the terms of the magistrate's decision may be general unless findings of fact and conclusions of law are timely requested by a party or otherwise required by law. A request for findings of fact and conclusions of law shall be made before the entry of a magistrate's decision or within seven days after the filing of a magistrate's decision. If a request for findings of fact and conclusions of law is timely made, the magistrate may require any or all of the parties to submit proposed findings of fact and conclusions of law.

(iii) Form; filing, and service of magistrate's decision.A magistrate's decision shall be in writing, identified as a magistrate's decision in the caption, signed by the magistrate, filed with the clerk, and served by the clerk on all parties or their attorneys no later than three days after the decision is filed. A magistrate's decision shall indicate conspicuously that a party shall not assign as error on appeal the Appendix 7 court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ. R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ. R. 53(D)(3)(b).

(b) Objections to magistrate's decision.

(i) Time forftling.A party may file written objections to a magistrate's decision within fourteen days of the filing of the decision, whether or not the court has adopted the decision during that fourteen-day period as permitted by Civ. R. 53(D)(4)(e)(i). If any party timely files objections, any other party may also file objections not later than ten days affer the first objections are filed. If a party makes a timely request for findings of fact and eonclusions of law, the time for filing objections begins to run when the magistrate files a decision that includes findings of fact and conclusions of law.

(ii) Speeificity of objection.An objection to a magistrate's decision shall be specific and state with particularity all grounds for objection.

(iii) Objection to magistrate's factual finding; transcript or afj'idavit.An objection to a factual finding, whether or not specifically designated as a finding of fact under Civ. R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding oi- an affidavit of that evidence if a transcript is not available. With leave of court, alternative technology or manner of reviewing the relevant evidence may be considered. The objecting party shall file the transcript or affidavit with the court within thirty days after filing objections unless the court extends the time in writing for preparation of the transcript or other good cause. If a party files timely objections prior to the date on which a transcript is prepared, the party may seek leave of court to supplement the objections.

(iv) Waiver of right to assign adoption by court as error on appeal. Except for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual fmding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ. R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Civ. R. 53(D)(3)(b).

(4) Action of court on magistrate's decision and on any objections to magistrates decision,enny o_f judgment or interim order by court.

(a) Action of court required:A magistrate's decision is not effective unless adopted by the court.

(b) Action on magistrate's decision.Whether or not objections are timely filed, a court may adopt or reject a magistrate's decision in whole or in part, with or without modification. A court may hear a previously-referred matter, take additional evidence, or return a matter to a magistrate.

(c) If no objections are filed. If no timety objections are filed, the court may adopt a magistrate's decision, unless it determines that there is an error of law or other defect evident on the face of the magistrate's decision.

(d) Action on objections.l f one or more objections to a magistrate's decision are timely filed, the court shall rule on those objections. In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law. Before so ruling, the court may hear additional evidence but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable Appendix 8 diligence, have produced that evidence for consideration by the magistrate.

(e) Entry of judgment or interim order by court. A court that adopts, rejects, or modifies a magistrate's decision shall also enter ajudgment or interim order.

(i) Judgment.The court may enter a judgment either during the fourteen days permitted by Civ. R. 53(D)(3)(b)(i) for the filing of objections to a magistrate's decision or after the fourteen days have expired. If the court enters a judgment during the fourteen days permitted by Civ. R. 53(D)(3)(b)(i) for the filing of objections, the timely filing of objections to the magistrate's decision shall operate as an automatic stay of execution of the judgment until the court disposes of those objections and vacates, modifies, or adheres to thejudgment previously entered.

(ii) Interim order.The court may enter an interim order on the basis of a magistrate's decision without waiting for or ruling on timely objections by the parties where immediate relief is justified. The timely filing of objections does not stay the execution of an interim order, but an interim order shall not extend more than twenty-eight days from the date of entry, subject to extension by the court in increments of twenty-eight additional days for good cause shown. An interim order shall comply with Civ. R. 54(A), bejournalized pursuant to Civ. R. 58(A), and be served pursuant to Civ. R. 58(B).

(5) Extension of time. For good cause shown, the court shall allow a reasonable extension of time for a party to file a motion to set aside a magistrate's order or file objections to a magistrate's decision. "Good cause" includes, but is not limited to, a failure by the clerk to timely serve the party seeking the extension with the magistrate's order or decision.

(6) Disquadijication of a magistrate. Disqualification of a magistrate for bias or other cause is within the discretion of the court and may be sought by motion filed with the court.

(7) Recording of proceedings before a ntagistrate.Except as otherwise provided by law, all proceedings before a magistrate shall be recorded in accordance with procedures established by the court.

(8) Contempt in the presence of a magistrate.

(a) Contempt order,Contempt sanctions under Civ. R. 53(C)(2)(f) may be imposed only by a written order that recites the facts and certifies that the magistrate saw or heard the conduct constituting contempt.

(b) Filing and provision of copies of contempt order.A contempt order shall be filed and copies provided forthwith by the clerk to the appropriate judge of the court and to the subject of the order.

(c) Review of contempt order by court; bail.The subject of a contempt order may by motion obtain immediate review by a judge. A judge or the magistrate entering the contempt order may set bail pending judicial review of the order.

History. Effective: July 1, 1970; amended effective July 1, 1975; July 1, 1985; July 1, 1992; July I, 1993; July 1, 1995; July 1, 1996; July I, 1998; July l, 2003; July l, 2006.

Note:

Staff Note (July 1, 2006 Amendment)

Civ. R. 53 has been reorganized in an effort to make it more helpful to bench and bar and reApp2ndiX 9 18 reconsideration does not extend the time for filing a notice of appeal from the judgment of this Court.

RULE 12

ORIGINAL ACTIONS

(A) How Instituted

An original action, other than habeas corpus, shall be instituted by the filing of a complaint, together with three copies thereof and sufficient service copies, and service shall be made, and such action shall proceed as any civil action under the Ohio Rules of

Civil Procedure.

(B) Deposit for Costs

At the time of filing the complaint in an original action in this court, the relator shall

deposit with the clerk of this court the sum of one hundred dollars ($100), as security for

the payment of costs.

A party claiming to be indigent shall file with their complaint a motion for leave to

proceed in forma pauperis supported by an affidavit showing indigency and indicating

their actual financial condition and the disposition of any request for similar leave sought

in any other court. The motion shall comply with Loc.R. 6 of this court. Upon filing of

the motion, the clerk shall forthwith forward a copy to the court administrator and the

motion shall be determined in accordance with Loc.R. 6(B). A respondent may oppose

the granting of a motion to proceed in forma pauperis in the manner set forth in App.R.

15(B). The court will sua sponte dismiss any complaint found to be frivolous, malicious

or abusive.

Appendix 10 19

In the absence of extraordinary circumstances, no alternative writ will be issued in

an original action, other than a habeas corpus action.

(D) Motion to Dismiss

When a motion to dismiss is filed, four copies of a brief in support of such motion

must be filed with such motion, and the movant shall indicate whether ruling on the

motion will dispose of the merits.

(E) Brief in Opposition to Motion to Dismiss

Four copies of a brief in opposition to a motion to dismiss shall be filed within

fifteen days of the filing of such motion with an indication whether ruling on the motion

may be deemed dispositive of the merits.

(F) Oral Argument on Motion to Dismiss

All motions will be ruled upon without oral argument before the Court, except

where the Court requests such argument.

(G) Presentation of Evidence

To facilitate the consideration and disposition of original actions, counsel should, whenever possible, file an agreed statement of facts.

When the evidence to be considered consists of all or part of an official record or

the record of proceedings before an administrative agency, such as the Industrial

Commission claim file, a stipulated or certified copy, rather than the original, must be

submitted pursuant to Civ.R. 44, and Evid.R. 902 and 1005. Unless the parties enter into

a stipulation concerning the evidence to be submitted to the Court and attach to the

stipulation legible copies of such evidentiary materials relevant to the determination of the

action, each party shall file with the Court legible certified copies of evidentiary materials

Appendix 11 20 the party feels relevant to the issues before the Court. An original public record will not

be accepted for filing as evidence. Two (2) copies of the stipulated evidence, or of each

parties evidence in the event that a stipulation cannot be agreed upon, shall be filed with

clerk of this court.

When a case, unless referred to a magistrate, has not been submitted by the

parties to the Court for its final determination, at the time of, or for, filing of a reply, it shall

be referred to the Court Administrator, and the parties shall appear before such Court

Administrator or attorney designated by the Court at such reasonable time and place as

may be designated on not less than ten days notice, and shall there make arrangements

for presenting all evidence which they desire to offer. Such evidence shall be presented

by way of deposition or stipulation, or certified copy of official records, unless the Court

otherwise orders.

(H) Time for Briefs

The brief of the plaintiff shall be served and filed within fifteen days after

completion of the presentation of evidence, pursuant to Section G; the brief of the

defendant shall be served and filed within fifteen days after service of the brief of the

plaintiff; and any reply brief shall be served and filed within five days after service of the

brief of the defendant.

(I) Service of Copy of Brief

Service of a copy of any brief shall be made upon opposing counsel forthwith, and

proof of service shall be filed with the clerk.

(J) Briefs

Appendix 12 21

Briefs shall conform to App.R. 19. The brief of the plaintiff shall contain, under

appropriate headings, and in the order here indicated:

(1) A table of contents, with page references, and a table of cases (alphabetically

arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.

(2) A state of the issues presented.

(3) A statement of the case. The statement shall first indicate briefly the nature of the case. There shall follow a statement of the facts relevant to the issues presented.

(4) An argument. The argument shall contain the contentions of the plaintiff with

respect to the issues presented, and the reasons therefor, with citations to the authorities and statutes relied on.

(5) A short conclusion, stating the precise relief sought.

The brief of the defendant shall conform to the foregoing requirements except that a statement of the issues and a statement of the case, or of the facts relevant to the issues need not be made unless the defendant is dissatisfied with such statements of the plaintiff.

(K) Election Matters

Because of the necessity of a prompt disposition of an original action relating to a pending election, and in order to give the Court adequate time for full consideration of such case, if such action is filed within ninety days prior to the election, answer day shall be five days after service of summons, and the reply brief of plaintiff must be filed within five days after the filing of the answer. All briefs must be filed no later than five days after

Appendix 13 22 the filing of plaintiffs brief. Only in exceptional cases will time be extended, even though opposing counsel has consented thereto.

(L) Oral Argument

In any original action in this Court, oral argument may be had only on approval of a

request therefor, provided that the Court may, if it so desires, require such oral argument

in any case. Any request for oral argument must be made in writing, by either party, at

the time of the filing of the party's original pleading. The party having the affirmative shall

have the right to open and close the argument and the further right to divide the time

allotted as desired.

(M) Reference to Magistrate

(1) Original actions in this Court may, either upon motion of a party or of the Court,

be referred by the Court to a magistrate, pursuant to Civ.R. 53. Unless otherwise

indicated in the order of reference to a magistrate, the magistrate shall have all the

powers specified in Civ.R. 53, and the proceedings and decision of the magistrate and

objections thereto shall be governed by Civ.R. 53. Sections D through N of this Rule

apply to proceedings before the magistrate.

(2) Where the evidence submitted consists of all or part of the record of the

proceedings before an administrative agency, such as the Industrial Commission claim

file, each party shall attach to any brief and to any memorandum pertaining to objections

to the magistrates' decision a legible xerographic copy of all evidence in the

administrative record which the party considers pertinent to the issues before the Court,

including any order of the agency which is claimed to constitute an abuse of discretion.

Unless some party indicates to the contrary, the Court will assume that the attachments to

Appendix 14 23 the briefs or memoranda include all the evidence necessary for the magistrate or the

Court to determine the issues. Where the parties have entered into a stipulation regarding the evidence to be submitted to the magistrate, copies of the relevant evidence need not be attached to the parties' briefs, but shall be attached to any memorandum pertaining to objections to the magistrate's decision.

(3) Within fourteen days of the filing of a magistrate's decision, a party may file written objections to the magistrate's decision. Any other party may also file objections not later than ten days after the first objections are filed. A memorandum in support shall be served and filed with objections. Any memorandum in opposition shall be served and filed within fourteen days after service of objections. Objections will be submitted to the

Court as a part of its regular hearing calendar. Requests for oral argument on objections, made pursuant to Section L of this Rule, shall be filed by a party no later than the time set for filing the initial memorandum. A request for oral argument on objections shall be conspicuously set forth on the front cover page of a party's objections.

(N) Dismissals for Want of Prosecution

Unless all evidence is presented, and the plaintiffs brief is filed within four months after the filing of the complaint, an original action shall be dismissed, after notice to counsel of record, for want of prosecution, unless good cause be shown to the contrary.

RULE 13

MOTIONS TO CERTIFY

Motions to certify to the Supreme Court because of conflict with a judgment of another Court of Appeals, upon the same question, shall be filed before the judgment of the court has been approved by the court and filed by the court with the clerk for

Appendix 15 Page 1

FOCUS-tof1DOCUMENT

PAULA J. GORTA, Appellee v. KEITH T. GORTA, Appellant

C.A. NO. 96CA006634

COURT OF APPEALS OF OI3IO, NINTH APPELLATE DISTRICT, LORAIN COUNTY

1997 Ohio App. LEXIS 4634

October 15,1997, Dated

PRIOR I3ISTORY: [*1] APPEAL FROM between himself and plaintiff-appellee Paula J. JUDGMENT ENTERED IN TI-TE COMMON Gorta. We affirm. PLEAS COURT. COUNTY OF LORAIN, OHIO. 1. CASE NO. 95DU049175. The Gortas were originally married on Decem- DISPOSITION: Judgment affirmed. ber 20, 1980. On June 26, 1989, the Gortas obtained a dissolution. During the course of this first marriage they had their first child. COUNSEL: JAMES V. BARILLA, Attorney at However, the dissolution did not end their rela- Law, Avon Lake, Ohio, for Appellant. tionship. They continued to interact socially, began dating again, and eventually rekindled their sexual JOHN S. HAYNES, Attorney at Law, Elyria, Ohio, relationship. The exact date of when this relation- for Appellee. ship began again is not clear from the record, but it appears to [*2] have started sometime in late 1989, JUDGES: DANIEL B. QUILLIN, Judge. DICK- prior to the holidays. INSON, P.J., SLABY, J. CONCUR. The Gortas continued to date through the holidays and into 1990. At some point, Keith began OPINION BY: DANIEL B. QUILLIN asking Paula to marry him again. At first Paula refused, but eventually she said yes. They discussed OPINION having a wedding on December 20, like they had DECISION AND JOURNAL ENTRY the first time, yet they never followed through with these plans. Dated: October 15, 1997 In June, 1990, Paula and their first child moved This cause was heard upon the record in the back into the marital home with Keith, and in April, trial court. Each error assigned has been reviewed 1993, the Gortas had a second child. This second and the following disposition is made: child, however, was apparently not sufficient to QUILLIN, Judge. cement the Gortas' relationship. On May 12, 1995, Paula filed for divorce, claiming that a common law Defendant-appellant Keith T. Gorta appeals a marriage had been created. After more than four judgment finding a common law marriage to exist hundred pages of testimony and some two dozen

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witnesses the trial court concluded that a common Summit App. No. 17013, unreported. Applying the law marriage did exist. standard of review articulated in Crull, we find that there was sufficient competent credible evidence II. going to all essential elements of the common law Assignment of error number one: marriage to satisfy Paula's heightened burden of proof. The Court erred as a matter of law when it held that the parties are common law married. As to the agreement in praesenti element, there was considerable direct evidence. Keith admitted A common law marriage must satisfy five re- that he had wanted to get remarried, that he had in praesenti, quirements: 1) an agreement to marry asked Paula to marry him, and that Paula had 2) made by persons competent to contract, 3) ac- agreed to remarry him. Paula testified repeatedly companied and followed by cohabitation as man that they resumed their marital status and had and wife, 4) subsequently holding oneself [*3] out agreed that they would be married again when she as being married, and 5) gaining a reputation as be- moved back into the marital home with Keith. She Nestor v. Nestor (1984), 15 Ohio St. 3d ing married. also testified that they had discussed how they were The proponent of a 143, 145-147, 472 N.E.2d 1091. back together again and how they had been married common law marriage has the burden of proving all all along, even during the period of dissolution. Ad- five elements by clear and convincing evidence. Id. ditionally, both parties continued to wear their wed- at 146. ding rings throughout the dissolution period and Keith's arguments on appeal amount to an as- during their subsequent relationship. The compe- sertion that the judgment was against the manifest tency of the parties to contract was never an issue. Crull v. Maple Park weight of the evidence. In [*5] The cohabitation element was barely con- Body Shop (1987), 36 Ohio App. 3d 153, 521 tested. Both parties admitted that Paula moved back N.E.2d 1099, the Butler County Court of Appeals into the marital home in June, 1990, and that they summarized the standard of review for these types engaged in sexual activity in the open manner of of challenges: husband and wife in a marital state. Although Keith's job kept him out of town on a regular basis The credibility of witnesses and throughout 1990 and part of 1991, he admitted that resolutions of conflicts in evidence are he was home on a permanent basis by the fall of matters for the trier of facts. *** On 1991. appeal, the trial court's resolution of fact will not be disturbed unless Concerning the remaining issues of holding out clearly contrary to the manifest weight as husband and wife and general reputation as such, of the evidence. *** If the judgment the evidence was directly contradictory. Each side of the lower court is supported by offered the testimony of several witnesses. Paula's some competent credible evidence go- witnesses stated that Paula and Keith always intro- ing to all essential elements of the duced each other as husband and wife, Keith's wit- case, it will not be reversed by a re- nesses stated that they never did so. Paula's wit- viewing court as being against the nesses stated that they always believed Paula and weight of the evidence. Keith to be married, Keith's witnesses stated that they never thought Paula and Keith got remarried. There was also some useful documentary evi- ( Id. at 154 citations omitted). Although the clear dence. Keith offered Paula's tax returns for the and convincing burden of proof in common law years 1989 through 1991, all of which reveal that marriage cases is more difficult to satisfy than the Paula had filed as single. Paula offered several preponderance of the evidence [*4] burden of proof documents: 1) an insurance affidavit from 1992, confronted in Crull, case law clearly dictates that signed by both parties, stating that they had been the Crull standard of review be applied to common common law married [*6] since February, 1990; 2) law marriage cases. See, e.g., Bowman v. Senne Keith's employment related insurance beneficiary (May 24, 1995), 1995 Ohio App. LEXIS 2137,

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form, dated November 7, 1991, listing Paula as his favor. "Any error by a trial court in denying a mo- beneficiary and indicating that she was his wife; 3) tion for summary judgment is rendered moot or Keith's resume, submitted to his employer in No- harmless if a subsequent trial on the same issues vember, 1991, which indicated that he was married; raised in the motion demonstrates that there were 4) documents from a second mortgage on the mari- genuine issues of material fact supporting a judg- tal home, obtained in 1992, listing the parties as ment in favor of the party against whom the motion husband and wife; and 5) travel vouchers from a was made." Continental Ins. Co. v. Whittington family trip to Florida in early October, 1991, listing (1994), 71 Ohio St. 3d 150, 642 N.E.2d 615, sylla- the parties as Mr. and Mrs. Keith Gorta. bus. Thus, assuming there was some error in the denial of Keith's motion, any such error was ren- Given that Paula was required to establish the dered harmless [*8] by our disposition of assign- common law marriage as of October 10, 1991, see ment of error number one, wherein we held that much of her documentary evidence is R.C. 3105.12, there was substantial evidence supporting the judg- untimely and of questionable value. Nevertheless, ment in favor of Paula. Assignment of error number the evidence that was dated after October 10, 1991, two is not well taken. does have some bearing on the state of mind of the parties. Additionally, some of the evidence, such as IV. the insurance affidavit and the travel vouchers, spe- In conclusion, both of defendant-appellant's as- cifically falls within the statutory time limit and, signments of error are without merit. therefore, directly supports the conclusion that there was a valid common law marriage as of October 10, Judgment affirmed 1991. The Court finds that there were reasonable In summary, there is substantial evidence on grounds for this appeal. both sides of the issues if such evidence is taken at We order that a special mandate issue out of face value. The [*7] trial court apparently decided this court, directing the County of Lorain Common to discount much of the evidence offered by Keith, Pleas Court to carry this judgment into execution. A and the trial court's assessment of credibility is not certified copy of this journal entry shall constitute something that we will lightly ignore. Thus, we the mandate, pursuant to App.R. 27. hold that there is substantial competent credible evidence supporting the trial court's finding. As- Immediately upon the filing hereof, this docu- signment of error number one is not well taken. ment shall constitute the journal entry ofjudgment, and it shall be file stamped by the Clerk of the III. Court of Appeals at which time the period for re- Assignment of error number two: view shall begin to run. App.R. 22(E).

The Court erred as a matter of law Costs taxed7o Appellant. when it overruled the defen- Exceptions. dant's/appellant's motion to dismiss/motion for summary judgment. DANIEL B. QUILLIN FOR THE COURT

In his motion to dismiss/motion for summary judg- DICKINSON, P.J ment, Keith argued that there was no common law SLABY, J. marriage. The common law marriage issue was fully adjudicated at trial and determined in Paula's CONCUR

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