VED SEP 2 8 2010 CLERK OF COURT IN THE SUPREME COURT OF OHIO SUPREME COURT OF OHIO I STATE OF OHIO EX REL. CASE NO. 2010-1490 CHRISTOPHER BARKSDALE, Original Action in Procedendo and Relator, Quo Warranto Arising From Cuyahoga County Common Pleas vs. Court Case Nos. 04 CV 547780 and 07 CV 643245 JUDGE KATHLEEN A. SUTULA, ET AL.,

Respondents.

MOTION OF RESPONDENTS SUTULA AND SHEEHAN TO DISMISS

CHRISTOPHER S. BASKSDALE WILLIAM D. MASON, Prosecuting 3467 East 140t° Street Attorrney of Cuyahoga County, Ohio Cleveland, Ohio 44120 CHARLES E. HANNAN * (0037153) Assistant Prosecuting Attorney Relator pro se * Counsel of Record The Justice Center, Courts Tower, 8`h Floor 1200 Ontario Street Cleveland, Ohio 44113 Tel: (216) 443-7758/Fax: (216) 443-7602 E-mail: channana(Dcuyahogacount y.us

CLERK OF COURT Counsel for Respondents Sutula and SUPREME COURT OF OHIO Sheehan

STANLEY GREEN ( 0009689) KIMBERLY A. BRENNAN (0061625) 17000 St. Clair Avenue McCarty, Lebit, Crystal & Liffinan Co., L.P.A. Cleveland, Ohio 44110 101 West Prospect Avenue Tel: (216) 509-1422/Fax: (888) 833-5860 1800 Midland Building E-mail: sQreen2822na,sbcglobal.net Cleveland, Ohio 44115 Tel: (216) 696-1422/Fax: (216) 696-1210 Counselfor Respondent TSE Properties Inc. LLC E-mail:ltanamccarthylebit.com

Counsel for Respondent Deutsche Bank IN THE SUPREME COURT OF OHIO

STATE OF OHIO EX REL. ) CASE NO. 2010-1490 CHRISTOPHER BARKSDALE, Original Action in Procedendo and Relator, Quo Warranto Arising From Cuyahoga County Common Pleas vs. Court Case Nos. 04 CV 547780 and 07 CV 643245 JUDGE KATHLEEN A. SUTULA, ET AL., MOTION OF RESPONDENTS Respondents. ) SUTULA AND SHEEHAN TO DISMIS

Pursuant to S.Ct.Prac.R. 10.5(A), respondents Judge Kathleen A. Sutula and Judge

Brendan J. Sheehan respectfully move this Court to dismiss the Amended Complaint in

Procedendo and Amended Complaint in Quo Warranto and this cause. The grounds in support of this motion are that the Amended Complaint does not state any claim for relief against Judges

Sutula and Sheehan.

A memorandum in support of this motion is attached hereto and incorporated herein.

Respectfully submitted,

WILLIAM D. MASON, Prosecuting Attorney of Cuyahoga County, Ohio

By: ^rt^^ CHARLES E. HANNAN * (0037153) Assistant Prosecuting Attotney * Counsel of Record The Justice Center, Courts Tower, 8`h Floor 1200 Ontario Street Cleveland, Ohio 44113 Tel: (216) 443-7758/Fax: (216) 443-7602 E-mail: [email protected]

Counsel for Respondents Sutula and Sheehan IN THE SUPREME COURT OF OHIO

STATE OF OHIO EX REL. ) CASE NO. 2010-1490 CHRISTOPHER BARKSDALE, Original Action in Procedendo and Relator, Quo Warranto Arising From Cuyahoga County Connnon Pleas vs. Court Case Nos. 04 CV 547780 and 07 CV 643245 JUDGE KATHLEEN A. SUTULA, ET AL., MEMORANDUM IN SUPPORT OF MOTION OF RESPONDENTS Respondents. SUTULA AND SHEEHAN TO DISMIS

STATEMENT OF FACTS AND PROCEEDINGS

This is an original action filed by relator Christopher S. Barksdale ("relator"). Relator seeks an extraordinary writ of procedendo against respondents Judge Kathleen A. Sutula and

Judge Brendan J. Sheehan (mistakenly referred to in relator's court filings as "Branden

Sheehan") and against respondent Deutsche Bank Trust Company. Relator additionally seeks an extraordinary writ of quo warranto against respondent TSE Properties Inc. LLC. For the reasons that follow, respondents Judges Sutula and Sheehan respectfully urge this Court to dismiss relator's action in procedendo and this cause pursuant to S.Ct.Prac.R. 10.5(A).

To put this case in proper perspective, it is necessary to review briefly the separate legal proceedings filed in the courts below. The following facts are drawn from previous appellate court opinions adjudicating this controversy.

CUYAHOGA COUNTY COMMON PLEAS COURT CASE NO. 04 CV 547780

On November 17, 2004, respondent Deutsche Bank instituted an action in foreclosure and reformation of a mortgage against Jacqueline Barksdale Williams and Perry Williams (Jr.) in the matter docketed as Deutsche Bank Trust Co. vs. Barksdale Williams, et al., Cuyahoga County

1 Common Pleas Court Case No. 04 CV 547780. See Deutsche Bank Trust Co. vs. Barksdale

Williams, 171 Ohio App.3d 230, 2007-Ohio-1838, 870 N.E.2d 232 at ¶ 3. That case was assigned to the docket of respondent Judge Sutula. After the trial court granted Deutsche Bank's motion for default judgment, relator Christopher S. Barksdale, who is the son of the deceased

Jacqueline Barksdale Williams, moved for relief from judgment or for an interim stay of foreclosure. Id. at ¶ 6. The trial court denied relator's motions. Id. at ¶ 7.

Relator appealed. In Deutsche Bank Trust Co. vs. Barksdale Williams, 171 Ohio App.3d

230, 2007-Ohio-1838, 870 N.E.2d 232, the Cuyahoga County Court of Appeals dismissed relator's appeal on the grounds that relator lacked standing. Id. at ¶¶ 12-14. Relator did not pursue any further appeal of the appellate court's decision.

CUYAHOGA COUNTY COMMON PLEAS COURT CASE NO. 07 CV 643245

On November 30, 2007, relator filed a separate action against Deutsche Bank to challenge the previous mortgage foreclosure action the in the matter docketed as Estate of

Williams vs. Deutsche Bank Trust Co. America, Cuyahoga County Common Pleas Court Case

No. 07 CV 643245. See Estate of Williams v. Deutsche Bank Trust Co. America, Cuyahoga

App. No. 90967, 2008-Ohio-3981 at ¶ 8. That case was assigned to the docket of respondent

Judge Sheehan's predecessor and ultimately to Judge Sheehan after he assumed office. The trial court granted Deutsche Bank's motion for summary judgment. Id. at ¶ 9.

Relator appealed. In Estate of Williams v. Deutsche Bank Trust Co. America, Cuyahoga

App. No. 90967, 2008-Ohio-3981, the Cuyahoga County Court of Appeals affirmed the trial court's judgment, finding that relator's action was barred by res judicata. Id. at ¶¶ 18-29.

Relator appealed that decision, but the Supreme Court of Ohio declined to hear relator's discretionary appeal. See Estate of Williams v. Deutsche Bank Trust Co. Am., 120 Ohio St.3d

2 1526, 2009-Ohio-614, 901 N.E.2d 245, reconsideration denied, 121 Ohio St.3d 1455, 2009-

Ohio-1820, 904 N.E.2d 903, further relief denied, 122 Ohio St.3d 1408, 2009-Ohio-2751, 907

N.E.2d 1192 (tables).

COLLATERAL LEGAL PROCEEDINGS

On June 19, 2009, relator filed a motion in original Case No. 04 CV 547780 to vacate or set aside the judgment. See State ex rel. Barksdale vs. Sutula, Cuyahoga App. No. 93861, 2009-

Ohio-4885 at ¶ 3. Apparently contending that his motion had not been ruled upon with sufficient dispatch, relator commenced an original action in mandamus against respondent Judge Sutula on

September 1, 2009 in the matter docketed as State ex rel. Barksdale vs. Sutula, Cuyahoga County

Court of Appeals Case No. 09 CA 93861. On September 15, 2009, the Cuyahoga County Court of Appeals denied the writ and dismissed the case. See State ex rel. Barksdale vs. Sutula,

Cuyahoga App. No. 93861, 2009-Ohio-4885. Relator did not pursue any further appeal of the appellate court's decision.

Also on September 15, 2009, Judge Sutula granted in part and denied in part relator's

June 19, 2009 motion to vacate or set aside the judgment. A copy of Judge Sutula's nine (9) page decision is attached to relator's Amended Complaint in Procedendo and Amended

Complaint in Quo Warranto. Relator filed an appeal from that ruling which was docketed as

Cuyahoga County Court of Appeals Case No. 09 CA 94016, but the Court of Appeals dismissed that appeal and denied relator's motion for reconsideration. See State ex rel. Barksdale v. Sutula,

Cuyahoga App. No. 94610, 2010-Ohio-2487 at ¶ 2, fn. 1. Relator did not pursue any further appeal of the appellate court's decision.

On February 1, 2010, relator filed an original action in mandamus and prohibition against respondent Judge Sutula in the matter docketed as Cuyahoga County Court of Appeals Case No.

3 10 CA 94610.1 The Court of Appeals ultimately denied the writs and dismissed relator's case.

See State ex rel. Barksdale v. Sutula, Cuyahoga App. No. 94610, 2010-Ohio-2487. Relator did not pursue any farther appeal of the appellate court's decision.

THE INSTANT PROCEEDINGS

In the matter now before this Court, relator filed his Original Complaint in Procedendo and Original Complaint in Quo Warranto on August 23, 2010. The docket of proceedings reflects that respondents Judge Sutula and Judge Sheehan were served with the summons and complaint on August 27, 2010.

On September 7, 2010, relator filed his Amended Complaint in Procedendo and

Amended Complaint in Quo Warranto. On September 24, 2010, relator filed what he captioned as a "Notice of Default" and a separate motion for default judgment. Respondents Judge Sutula and Sheehan are contemporaneously filing their brief in opposition to relator's motion for default judgment.

Pursuant to S.Ct.Prac.R. 10.5(A), respondents Judge Sutula and Sheehan now move for dismissal of relator's Amended Complaint in Procedendo and Amended Complaint in Quo

Warranto and this cause.

1 While that case was pending, relator was declared to be a "vexatious litigator" under R.C. 2323.52 in the matter docketed as TSE Properties, LLC v. Barksdale, Cuyahoga County Common Pleas Court Case No. 09 CV 689650. See State ex rel. Barksdale v. Sutula, Cuyahoga App. No. 94610, 2010-Ohio-2487 at ¶ 3. Relator appealed that ruling to the Court of Appeals in the matter docketed as Court of Appeals Case No. 10 CA 94742, but the Court of Appeals dismissed that appeal on March 8, 2010. Relator did not pursue any further appeal of the appellate court's decision.

4 ARGUMENT AND LAW

Relator's Amended Complaint in Procedendo and Amended Complaint in Quo Warranto

("Amended Complaint") purports to seek a writ of procedendo against respondent Judge Sutula

(and respondent Deutsche Bank). See Amended Complaint at pp. 4-5; id. at 6-7. Relator separately purports to seek a writ of procedendo against respondent Judge Sheehan. See

Amended Complaint at pp. 5-6; id. at 8. But nothing in relator's Amended Complaint futnishes any grounds to grant writs of procedendo against either Judge Sutula or Judge Sheehan.Z To the contrary, relator's Amended Complaint would appear to be using this original action as a substitute for the adequate legal remedy of appeal. Because relator's Amended Complaint does not furnish grounds for relief in procedendo, respondents Judge Sutula and Judge Sheehan respectfully request that the Court dismiss relator's Amended Complaint and this cause pursuant to S.Ct.Prac.R. 10.5(A).

It will be recalled that procedendo is an order from a court of superior jurisdiction to proceed to judgment. State ex rel. Miley v. Parrott (1996), 77 Ohio St.3d 64, 67, 671 N.E.2d 24,

26; State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas (1995), 72 Ohio St.3d 461,

462, 650 N.E.2d 899. See, also, State ex rel. Levin v. Sheffield Lake (1994), 70 Ohio St.3d 104,

106, 637 N.E.2d 319 ("A writ of procedendo is an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment, but one that never attempts to control how the inferior court rules.") (internal punctuation omitted).

2 The Amended Complaint's request for a writ of quo warranto is directed solely at respondent TSE Properties Inc. LLC. And while relator's Amended Complaint makes passing reference at p. 9 to a writ of prohibition, that discussion relates solely to relator's attempt to obtain a writ of quo warranto against TSE Properties Inc. LLC. The Amended Complaint does not seek relief in prohibition against respondents Judge Sutula and Judge Sheehan.

5 In order to be entitled to this writ, the relator must establish (1) a clear legal right to have the respondent to proceed to judgment and (2) the lack of an adequate remedy in the ordinary course of law. See State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 2007-Ohio-2882, 868

N.E.2d 270, at ¶ 13; State ex rel. Weiss v. Hoover (1999), 84 Ohio St.3d 530, 531-532, 705

N.E.2d 1227.

A writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment. See State ex rel. Charvat v. Frye, supra, at

¶ 14. "A lower court's refusal or failure to timely resolve a pending case is the error that procedendo was created to rectify." Id.

In this case, nothing in relator's Amended Complaint suggests that either Judge Sutula or

Judge Sheehan have failed or refused to proceed to judgment. Relator's Amended Complaint does not contain any factual assertions to suggest that Judge Sutula or Judge Sheehan have not proceeded to judgment. To the contrary, the facts - as reflected in the prior court decisions addressing relator's claims - reflect that Judge Sutula and Judge Sheehan have proceeded towards judgment.

The fact that relator has filed a series of postjudgment filings in an attempt to reassert his claims does not mean that these respondents have failed or refused to proceed to judgment. To the extent Judge Sutula and Judge Sheehan have ruled on relator's postjudgment filings, no writ of procedendo should lie, for "[n]either procedendo nor mandamus will compel the performance of a duty that has already been performed." State ex rel. Rose v. McGinty, 123 Ohio St.3d 86,

2009-Ohio-4050, 914 N.E.2d 366, ¶ 2.

6 Moreover, procedendo, like mandamus, may not be used as a substitute for appeal. See

State ex rel. Rutan v. Bessey, Franklin App. No. 07AP-316, 2007-Ohio- 6856 at ¶ 7. In this case, any disagreement relator had with rulings rendered by Judge Sutula and Judge Sheehan was subject to review by the adequate remedy of appeal. And any disagreement relator had with rulings rendered by the Court of Appeals was likewise subject to review by the adequate remedy of discretionary appeal. See State ex rel. Neguse v. McIntosh, 115 Ohio St.3d 216, 2007-Ohio-

4788, 874 N.E.2d 772 at ¶ 6.

Nothing in relator's Amended Complaint furnishes any factual or legal grounds to issue an extraordinary writ of procedendo against either Judge Sutula or Judge Sheehan. Accordingly, they respectfully request that this Court dismiss the Amended Complaint in Procedendo and

Amended Complaint in Quo Warranto and this cause pursuant to S.Ct.Prac.R. 10.5.

CONCLUSION

Respondents Judge Kathleen A. Sutula and Judge Brendan J. Sheehan respectfully request that this Court dismiss the Amended Complaint in Procedendo and Amended Complaint in Quo Warranto and this cause pursuant to S.Ct.Prac.R. 10.5.

Respectfully submitted,

WILLIAM D. MASON, Prosecuting Attorney of Cuyahoga County, Ohio

By: CHARLES E. HANNAN * (0037153) Assistant Prosecuting Attorney * Counsel of Record The Justice Center, Courts Tower, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 Tel: (216) 443-7758/Fax: (216) 443-7602 E-mail: channan(a)cuyahogacounty.us

Counsel for Respondents Sutula and Sheehan

7 PROOF OF SERVICE

A true copy of the foregoing Motion of Respondents Sutula and Sheehan to Dismiss was served this CZ7'tN day of September 2010 by regular U.S. Mail, postage prepaid, upon:

Christopher S. Barksdale 3467 East 140th Street Cleveland, Ohio 44120

Relator pro se

Kimberly A. Brennan McCarthy, Lebit, Crystal & Liffinan Co., L.P.A. 101 West Prospect Avenue 1800 Midland Building Cleveland, Ohio 44115

Counsel for Respondent Deutsche Bank

Stanley Green 17000 St. Clair Avenue Cleveland, Ohio 44110

Counsel for Respondent TSE Properties Inc. LLC

CHARLES E. HANNAN * Assistant Prosecuting Attorney * Counsel of Record

8