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Sep 2 8 2010 Clerk of Court Supreme Court of Ohio I 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).
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