IN THE SUPItEME COURT OF OHIO 1 2 _®,9 ,2 2CASSANDRA WILTZ ON APPEAL FROM THE LICKING

COUNTY COURT OF APPEALS,Appellant, FIFTH APPELLATE DISTRICT

vs.COURT OF APPEALS CASE

MOUNDBUILDERS GUIDANCE NO. I I-CA-22CENTER, et. al.

Appellees.

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTCASSANDRA WILTZ (with Al to A28 Appendix)

Cassandra Wiltz, Appellant Pro SeP.O. Box 64, Delaware, OH 43015(908) 392-2270

PR L EDMAY 2 9 ZatZ

Michael S. LoughryMazenec, Raskin, et, al.250 Civic Center Drive, Suite 400Columbus, OH 43215

CLERK OF COURTSUPREME COUR_ _ T 0F OH1O

(614) 228-5931 - Telephone, mloughry@mrrlaw.comAttorney, for Appellees Moundbuilders Guidance Center, Laura Edelblute, Patrick Evans, RobinLupher, Tohn Kozak Michael Smith, Michael YYhitehead, Lannie Stoll, Mike Piper, JohnMichael Berry, Louise Berry, -0le Bay, Stephen Mullendore, John Capper, Debbie Kirk, ParkNational Bank, and Behavioral Healthcare Partners

Michael W. HawkinsDinsmore and Shohl1900 Chemed Center, 255 East Fifth StreetCinr-.innati OH 45202

(614) 628^6915 - Telephone, Michael.hawkins@dinslaw.comAttorney for Appellee Community Mental Health & Recovery Board of Licking & Knox Counties

Brigid E. HeidCarlile, Patchen, et. al.366 East Broad StreetColumbus, OH 43215(614) 228-6135 - Telephone, beh@cpmlaw.comAttorney for Appellees Jeff Forman and Forman & Associates Consulting

TABLE OF CONTENTS

EXPLANATION REGARDING WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL EVTEREST AND INVOLVESA SUBSTANTIAL CONSTITUTIONAL QUESTION

STATEMENT OF THE CASE AND FACTS

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. I: When a timely Civ.R. 60(B) motion is filedin the trial Court 15 days before a Notice of Appeal is filed, duringthe 15-day period before the Notice of Appeal is filed, the trial Courthas jurisdiction to hear the motion.

Proposition of Law No II: When the Court of Appeals makes an Appealdecision that states that it will not remand a case to a trial Court `so thata Civ.R. 60(B) motion can be considered' solely because the appellant didnot make such a remand request and makes another decision (8 days later)that states that it is denying the motion (that was filed 134 days earlier)in which the appellant asked the Court to remand the case `so that aCiv.R. 60(B) motion can be considered', the appellant has been denied adue process right to be heard, the actions of the Court are unreasonable,the 2 decisions are in conflict, the Court should acknowledge its error (instating that the appellant did not ask for a remand `so that the Civ.R. 60(B)

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Proposition of Law No. III: When a plaintiff does not attend a depositionbecause of illness, the plaintiff provides proof of the illness to the trialCourt and the Court initially fails to put the proof into the Record,the Record contains evidence to prove that the trial Court sometimesfailed and refused to put documents into the Record that the plaintiffSubitittcu (ivr ^iiing), ihe tiiai Cvuii diaaiuSScS the caSe (witiivut anvvv'Ing

the plaintiff to respond to the Motion to Dismiss) for failure to attendthe deposition, the plaintiff subsequently puts proof of the illness in aCiv.R. 60(B) motion, the trial Court fails to hear the timely Civ.R. 60(B)motion that it had jurisdiction to hear, and the plaintiff presents theCiv.R. 60(B) motion and proof of the illness to the Court of Appealsand asks the Court to remand the case to the trial Court `so that theCiv.R. 60(B) motion can be considered', the plaintiff has been denieddue process, the case should be remanded to the trial Court `so that

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the Civ.R. 60 (B) motion can be considered', and the Appeal Decisionshould not merely state that the dismissal of the case was justified because`pursuant to the Record before the Court of Appeals, there is noevidence that the plaintiff was unable to attend the deposition'.

Proposition of Law No. IV: When a Local Rule requires that anon-movant must be served with a Notice of a hearing for a motionand that the hearing date must be scheduled by the Court, thenon-movant is served with a Notice that describes the date and timeof an oral hearing, and the oral hearing that is described in the Noticedoes not take place and is not scheduled to take place, the movant orthe Court has a duty to provide the non-movant with either a Noticethat indicates the correct date and time of the oral hearing or a Noticethat describes a non-oral hearing, the Court has a duty to schedule thethe hearing, and failure to perform these duties is a denial of thenon-movant's procedural due process rights.

Proposition of Law No. V: The Court of Appeals has a duty to correctits obvious errors, which resulted in an Appeal denial, when it is provided(via a Motion for Reconsideration) with proof that the errors were madeand when the proof includes a document that is certified by the Office ofthe Clerk as being a true copy of what is in the Record .

Proposition of Law No. VI: When a Court of Appeals does not addresssignificant issues/allegarions of the Appeal (on the basis of an erroneous claimthat the Supreme Court of Ohio has already reviewed the issues/allegationsand found no basis for them), the appellant has `effectively' been deniedhis/her right to an Appeal.

CONCLUSION

CERTIFICATION OF SERVICE

APPENDIX:

4/12/12 Opinion of Licking County Court of Appeals (affirming judgmentof Common Pleas Court)

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Al

4/12/12 Judgment Entry of Licking County Court of Appeals ( afl3imingjudgment of Common Pleas Court) A15

4/20/12 Judgment Entry of Licking County Court of Appeals (for 12/7/11Motion for Leave to Amend Conclusion of Appeal Brief) A16

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5/15/12 Judgment Entry of Licking County Court of Appeals (forApplicationfMotion for Reconsideration and for Motion to Certify a Conflict) Al7

5/15/12 Judgment Entry ofLicking County Court of Appeals (forApplication/Motion for En Banc Consideration) Al9

12/29/10 Supreme Court Decision for Affidavit for Disqualification A20

f i i

EXPLANATION OF WHY THIS CASE IS CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SIFBSTANTIAL CONSTI'i`UTIONAL QiJESTION

This case is of public and great general interest and involves a substantial constitutional question,

for the following reasons:

(1) The Court of Appeals made a decision that stated that a trial Court does not have jurisdiction

to hear a Civ.R. 60(B) motion, when the motion is filed 15 days before a Notice of Appeal is filed.

The ruling is arbitrary and is not consistent with any Local Rule of the Fifth District Court of

Appeals. Courts have also held that it is the filing a Notice of Appeal that divests a trial Court of

jurisdiction. The nxling that was made by the Court of Appeals is of public interest and great

general interest because it sets a new precedent that limits the ability of litigants to have a Civ.R.

60B motion heard by a trial Court. It also creates confusion and could likely lead to the need for

many cases to have to come before Courts of Appeal, which would unnecessarily burden the

Court system. The ruling does not indicate how many days before a Notice of Appeal is filed that

a Civ.R. 60(B) motion needs to be filed, in order for the trial Court to have jurisdiction to hear it.

If the Supreme Court accepts jurisdiction of this case, it can determine if the ruling of the Court of

Appeais is a.ppropr.atc and ^,f it is appropPiate.) it aan Luane the ^ul'ng complete, hy speci^ u g 4> e

number of days before a Notice of Appeal is filed that a Civ.R. 60(B) motion needs to be filed `in

order for the trial Court to have jurisdiction to hear it'.

(2) The Court of Appeals made a decision for this case that included several significant and

obvious errors, which were not acknowledged or corrected, even after evidence was presented to

the Court of Appeals (in a Motion for Reconsideration) to prove that the errors had been made.

For example, the Appeal Decision states that the defendantsJappellees served me with a Notice

that described that a non-oral hearing for their Motion to Dismiss would take place at 4:30pm pm

on 12/21/10. A copy of the Notice that is certified by the Office of the Clerk as being a true copy

of what is in the Record (and that I provided to the Court of Appeals, with my Reply to the

defendants/appellees' Opposition to my Motion for Reconsideration of the Decision), however,

proves that the Notice described that an oral hearing would take place at 4:30 pm on 12/21/10.

The fact that Notice described that an oral hearing would take place is the reason that this case

should not have been dismissed and my Appeal should not have been denied. See the discussion

for Proposition of Law No. IV, in the Argument (below), concerning this fact/subject. The Court

of Appeals, failed and refused to acknowledge or correct its obvious error, even after receiving

my Motion for Reconsideration and its Reply papers. The Court of Appeals has a duty to correct

its obvious errors, that result in the denial of an Appeal. The Appeal Process and App.R. 26 are

rendered meaningless, when it fails to do so. When the Court of Appeals refuses to perform its

duty, the Supreme Court should exercise its supervisory authority (by accepting jurisdiction of the

case, so that the matters can be reviewed). Whether or not the Supreme Court will exercise

supervisory authority in such situations, is a subject that is of interest to all citizens of Ohio, who

have rights to make an Appeal and to expect that the Appeal process will be meaningful.

(3) This case involves an issue of whether or not a Court and/or a movant has a duty to provide sa

corrected Notice of a hearing for a motion, when a Court rule requires Notices of hearings to be

served and after a Notice has been served to a non-movant that provides an incorrect time and

date for ' ^ (See tt_ ^•_^__ • c__n_,_._.. •• rT,..1.T., r^r\u....,.1_,:..,'.7.:..;^....afi Uralfteallrig. tJGG ttG LLlJl.ual^jillrt tui rtuYvsilll)n lJl LG4w 1VV. 1 v.) l^cJVlvlll^'j uuJ 1JJU^

is public and great general interest, because the failure to resolve it can set a precedent for parties

•tocircumvent a Court rule (that has an objective of insuring that parties are provided with a`due

process' Notice), by serving an incorrect Notice. The issue was before the Court of Appeals (for

resolution), but the Court did not decide it. The Court (instead) made a decision related to the

issue that included obvious errors, which it refused to correct (as is discussed in (2), above).

(4) The Record for this case contains unrefuted evidence to prove that I was denied my

constitutional procedural due process right to participate in the proceedings, to be heard, and to

have Courts rules applied to me, when the trial Court and the Court of Appeals did (or failed to

do) the following: The trial Court dismissed my case on 1(31l11 without scheduling either an oral

or non-oral hearing for the defendants' Motion to Dismiss (as Local Rules required the Court to

schedule), dismissed my case after I was provided with an incorrect Notice of an oral hearing for

the Motion to Dismiss and without providing me with a correct Notice of an oral hearing or a

Notice of the intent to hold a non-oral hearing (as Local Rules dictated that I was to be provided),

and did many other things (that are described in the discussion for Proposition of Law No. VI, in

the Argument (below)). The Court of Appeals would not hear significant issues of the Appeal and

erroneously stated that the Supreme Court of Ohio had already heard the issues (and found no

basis for them), refused to remand the case to the trial Court `so that my Civ.R. 60(B) motion

could be considered' (with knowledge that my complaint was dismissed for failure to attend a

deposition and that my motion included unrefuted evidence to prove that I did not attend the

deposition because of illness), (on 2 occasions) would not let me `have copies of or `make a reply

to' Oppositions made by defendants to my motions, made an Appeal Decision in which it stated

that it would not remand my case to a trial Court `so that my Civ.R. 60(B) motion could be

considered' soleiy because i uid not ivake such a rc^i.ai.u requei, anu aTaad€ a ivtu°r deei3=^n rQ

days after it made the Appeal Decision) in which it stated that it was denying my motion (that was

filed 134 days earlier) in which I asked the Court to remand the case `so that a Civ.R. 60(B)

motion can be heard'. A role of the Court is to protect rights of citizens. When it is a Court of

Appeals that has taken away a citizen's rights, the Supreme Court should intervene (via accepting

jurisdiction for a case) to insure that the situation is remedied.

(5) Ohio Courts favor deciding a case on its merits. TMs is especially important, when the

appellant has meritorious claims (as my Appeal Brief proves that I do) and when the case

concerns (as this case concetns) the facts that the appellees misused public funds and committed

other felonies, used fraudulent financial statements to obtain local, state, and federal funds, and

violated public policy and the Whistleblower Protection Act. For such a case, when the appellant

is denied procedural due process and the denial results in the case being dismissed (as happened in

this case), allowing the case to be disniissed sends an incorrect message to the public `that the

appellees did not misuse public funds and comniit other felonies, use fraudulent financial

statements to obtain local, state, and federal funds, or violate public policy and the Whistleblower

Protection Act' or `that the appellees can misuse and fraudulently obtain public funds, with

impunity' . By accepting jurisdiction of this case and reviewing the improper dismissal of the case,

the Supreme Court can insure that an incorrect message is not sent to the public.

STATEMENT OF THE CASE AND FACTS

In 2/09 I filed a civil compliant in the Licking County Common Pleas Court, charging defendants

with violations of the Whistleblower Protection Act and public policy, unlawful discriminatory

behavior and employment practices ('mcluding Retaliation, for making complaints about bank

fraud and other felonies, misuse of public funds, unlawful accounting and financial reporting

practices, ttlreatJ, 1r1t1rilidatlVll, and haraJJlueni), Qild int.ent.iin0.i iiwicuina ^f Emvtioiul D'aStr°vs.^i.

In 2/11, the Common Pleas Court made an order (that was dated 1/31/11) that dismissed my

complaint `because of alleged failure to attend a deposition', which was based upon motions that

the defendants filed. On 2/16/11, I filed a Civ.R. 60(B) Motion for Relief from the Judgment

Dated 1/31/11, which was not heard by the Common Pleas Court. On 3/2/11 I filed a Notice of

Appeal. In my Appeal Brief, I advised the Court of Appeals that (among other things) the

Common Pleas Court had erroneously failed and refused to hear my 2/16/11 motion and I asked

the Court of Appeals to remand the case to the Common Pleas Court. In a 12/7/11 Motion for

Leave to Amend the Conclusion (only) of my Appeal Brief, I stated that I wanted by Ci.R. 60

(B) motion to be considered by the trial Court and I requested to be allowed to make the

Conclusion of my Appeal Brief indicate that its remand request was specifically `so that my

2/16/12 Civ.R. 60(B) motion could be considered'. In its 4/12/12 Appeal Decision, the Fifth

District Court of Appeals stated that the Record that is before the Court of Appeals shows that

trial Court properly dismissed my Appeal (for failure to attend a deposition), I was provided with

a sufficient Notice of a non-oral hearing for the defendants' Motion to Disnziss, the trial Court did

not have jurisdiction to hear the Civ.R. 60(B) motion that I filed 15 days before I filed a Notice of

Appeal, the Court of Appeals would not remand the case to the trial Court `so that my Civ.R.

60(B) motion could be considered' solely because I did not ask for such a remand, and the Court

of Appeals would not hear some issues of my Appeal `because the Supreme Court of Ohio had

already decided that there was no basis for them'. In a subsequent 4/20/12 Decision, the Court of

Appeals also denied my 12/7/11 motion, in which I requested that the Court of Appeals remand

the case to the trial Court `so that my 2/16/12 motion could be considered'. In its two 5/15/12

Decisions, the Court of Appeals also denied my 4/25/12 Motion for Reconsideration, for En Banc

r.OnsiueratiGi, ailu tv Cel^i.lly a ar.olluli"^'.L. Ifhe Cvuii of Appe?u6 5 rrw r.th °va^vli ^f 4/12/12

findings, by making the 4/20/12 decision that denied my 12/7/11 motion and that is inconsistent

with its 4/12/12 Decision, by waiting 134 days (and after the 4/12/12 Decision was made) to hear

my 12/7/11 motion, by denying my 4/25/12 motion, and by failing to acknowledge and to correct

its si i cant and obvious errors that I pointed out in my 4/25/12 motion. In support of my

position on these issues, I present the following argument.

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Pronosition of Law No. I: When a timely Civ.R. 60(B) motion is filed in the trial Court 15

days before a Notice of Appeal is filed, during the 15-day period before the Notice ofAppeal is filed, the trial Court has jurisdiction to hear the motion.

Page 12 of the Court of Appeals' 4/12/12 Decision states that my Assignment of Error No. 4 was

overruled, because I argued that the trial Court abused its discretion `in failing to rule on my

2/16/11 Motion for Relief from Judgment' and because I filed my Notice of Appeal from the

1/31/11 judgment on 3/2/11 and (therefore) the trial Court lacked jurisdiction to rule on my

motion and correctly did not rule on it. In truth, Courts have held that it is the filing of the Notice

of Appeal that divests a trial Court of its jurisdiction to hear a Ci.R. 60(B) motion. (Howard v.

Catholic Social Servs. of Cuyahoga Cty, Inc. (1994), 70 Ohio St.3d 141) I filed my Notice of

Appeal 15 days after I filed my motion. The trial Court had jurisdiction to hear my motion, for the

15-day period between 2/16/11 and 3/2/11. The trial Court also should have ruled on my motion,

during this 15-day period, for the following reasons: My motion was timely filed. Civ.R. 6(D)

states that a written motion and a notice of the hearing for the motion shall be served not later

than 7 days before the date fixed for the hearing and that opposing affidavits may be served not

later than one day before the hearing. Loc.R. 5(B) also dictates that an oral or non-oral hearing

date for a motion must be scheduled by the Court and that an order or notice of a hearing, which

^ i - ^ ti---'°", .^^`e C- ^t'.. motion, l.o `1 . the ^nnncinncontalns tfle Ural or non-ora! llG[tlutrJ uatc iVi the aTivimu$I ^^. .°ie. v'.°.u YN""`D

party. The Record proves that, on 2/16/11, I filed and served to defendants a motion and a Notice

that indicated that the hearing was scheduled for 2/28/11, which is 12 days (and more than 7 days)

after I filed and served the motion. The trial Court also has a practice of hearing a motion within

15 days after it is filed. When the defendants filed a 9/16/10 motion, the trial Court held a hearing

0

for the motion 8 days later and made a decision for the motion 12 days later (on 9/28/10).

My Assignment of Error No. 4 also actually states that the trial Court's failure to hear my Civ.R.

60(B) motion was an abuse of discretion, denial of my due process right to be heard and to

participate in the proceedings, arbitrary, capricious, and unreasonable, and more evidence of the

Court's bias against me (which resulted in the order dated 1/31/11 being made). My Civ.R. 60(B)

motion was also my third motion that the Court failed and refused to hear. See the discussion for

Proposition of Law No. VI (below), concerning the Court's failures to hear motions that I filed.

Prooosition of Law No II: When the Court of Appeals makes an Appeal Decision thatstates that it wiR not remand a case to a trial Court `so that a Civ.R. 60(B) motion can beconsidered' solely because the appellant did not make such a remand request and makesanother decision (8 days later) that states that it is denying the motion (that was filed 134days earlier) in which the appeDant asked the Court to remand the case `so that a Civ.R60(B) motion can be considered', the appellant has been denied a due process right to beheard, the actions of the Court are unreasonable, the 2 decisions are in conflict, the Courtshould acknowledge its error (in stating that the appellant did not ask for a remand `so thatthe Civ.R 60(B) motion can be considered'), and the case should be remanded.

My Assignment of Error No. 4 states that the trial Court's failure to hear my 2/16/11 Civ,R.

60(B) motion was an abuse of discretion, denial of my due process right to be heard and to

participate in proceedings, arbitrary, capricious, and unreasonable, and evidence of the Court's

bias against me (which resulted in the order dated 1/31/11 being made). In the Conclusion of my

Appeal Brief, I also made a request for the case to be remanded to the trial Court. Upon realizing

that the Court of Appeals might not have interpreted my Appeal Brief as requesting a reniand `so

that my Civ.R 6v^) mviivai vvuid be vviwidered', i uled a i2i ^r i i mvtiviy m`»'i'uvii i ^tated tfiat

it was (and had been) my intent for my Appeal Brief s Assignment of Error No. 4 and Conclusion

to be construed as a request for a remand `so that the Civ.R. 60(B) motion could be considered'

and in which I requested leave of the Court to allow me to Amend the Conclusion of my Appeal

Brief "for the purpose of making its remand request indicate that the request was `so that my

7

CivR 60(B) motion could be considered' ". For 134 days, the Court did not hear my 12/7/11

motion. On page 12 of its 4/12/12 Decision, the Court of Appeals' stated that the case would not

be remanded to the trial Court `so that my Civ.R. 60(B) motion could be considered', solely

because I did not make such a remand request. Eight days later, on 4/20/12, the Court of Appeals

made a decision/judgment entry that stated that my 12/7/11 motion (in which I did make such a

remand request) was "not well taken" and denied. Clearly, the 4/12/12 Decision contained an

error. Since the 4/12/12 Decision stated that my alleged failure to request a remand `so that my

2/16/12 motion could be considered' was the sole reason that the case was not remanded and the

4/20/12 Decision was an acknowledgement that I did make such a remand request (on 12/7/11),

the case should have been remanded to the trial Court `so that my 12/16/11 Civ.R. 60(B) motion

could be considered'. Courts have found that, when a trial Court loses jurisdiction to hear a

Civ.R. 60(B) motion (as a result of the filing of a Notice of Appeal), it can regain jurisdiction

when a Court of Appeals remands the case to the trial Court `so that a Civ.R. 60(B) motion can

be hWd`. (Howard v. Catholic Social Servs. of Cuyaho agCty. Inc. (1994), 70 Ohio St.3d 141)

I made another request for a remand of the case to the trial Court `so that my Civ.R. 60(B)

motion could be considered', in my 4/25/12 Motion for Reconsideration, which was denied on

5/15/12. In Wiltz v. Clark. Schaefer, et.al. (2011-Ohio-5616), the Court made an 11/1/11

Decision that stated that my case would not be remanded to the trial Court `so that my Civ.R.

60V(B) ulviiVn wiiiu bc wnSi4cleu', solely bci.auSc I hau i1Vt. maue Jllcii a rellalLU requeSt. Al^w°r i

filed 11/14/11 Motions for Reconsideration and for Leave to Amend the Conclusion of my Appeal

Brief (to make the Conclusion indicate that its remand request was `so that my Civ.R. 60(B)

motion could be considered'), the Court made a 12/22/11 Decision that remanded the case.

I was denied my due process right to be heard, on 4/12/12 (when my Appeal was denied, without

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the Court hearing my 12/7/11 motion) and on 4/12/12 and 4/20112 (when the Court refused to

remand the case to the trial Court `so that my Civ.R. 60(B) motion could be considered').

Proposition of Law No. III: When a plaintiff does not attend a deposition because of illness,the plaintiff provides proof of the illness to the trial Court and the Court initially fails to

put the proof into the Record, the Record contains evidence to prove that the trial Court

sometimes failed and refused to put documents into the Record that the plaintiff submitted(for filing), the trial Court dismisses the case (without allowing the plaintiff to respond to

the Motion to Dismiss) for €ailure to attend the deposition, the plaintiff subsequently putsproof of the illness in a Civ.R. 60(B) motion, the trial Court fails to hear the timely Civ.R

60(B) motion that it had jurisdiction to hear, and the plaintiff presents the Civ.R. 60(B)

motion and proof of the illness to the Court of Appeals and asks the Court to remand the

case to the trial Court `so that the Civ.R. 60(B) motion can be considered', the plaintiff hasbeen denied due process, the case should be remanded to the trial Court `so that the Civ.R.60 (B) motion can be considered', and the Appeal Decision should not merely state that thedismissal of the case was justified because `pursuant to the Record before the Court of

Appeals, there is no evidence that the plaintiff was unable to attend the deposition'.

I did not attend a deposition, because of a medical emergency. Courts have held that illness

justifies failure to attend a deposition. (Avdin Co. Exchange Inc., v. Marting Realty, 118 Ohio

App.3d 2774, 275 (9s` Dist. 1997) I provided the trial Court with proof of the medical emergency.

on 1/26/11 and 2/12/11, which was when the medical records became available to me. The trial

Court failed to docket what I submitted on 1/26/12. See the discussion for Proposition of Law

TT.. TX7 (^1....,n\ n th...n far.....ff 4......ha4 tha trial (`niirt rlicmiccM m[r rmmnlatnt fm an nrrjar tjatP/jvv.i wi. .:rS^ ..:.. . ...... ....... ^....,... ... .............» ...^ .......t,......._. ^__ ..__ .._ »__ »_.__»

1/31/11) `without allowing me to respond to the defendant's Motion to Dismiss', because I did

not attend the deposition. I filed a 2/16/11 Civ.R. 60(B) motion, in which I included the same

proof of the medical emergency that I had previously provided to the trial Court. See the

discussions for Proposition of Law No. I (above), concerning the trial Court's failure to hear my

timely filed Civ.R. 60(B) motion that it had jurisdiction to hear. Page 11 of the Court of Appeals'

4/12/12 Decision states that the trial Court made a 1/31/11 decision that properly dismissed my

Appeal, because the defendants' documented in their Motion to Dismiss that I had a 12/6/10

medical emergency, but the Record that is before the Court of Appeals includes no evidence

that I was unable to attend the deposition on 1218110. In my Appeal Brief, I pointed out that my

2/16/11 Civ.R. 60(B) motion contains medical records and a sworn affidavit, and other evidence

to prove that the 12/8/10 continuance of the 12/6/10 medical emergency was the reason that I did

not attend the deposition on 12/8/10 and I made reference to where the evidence could be found

in the Appendix to my Appeal Brief (which includes my 2/16/11 motion, in its entirety). The

4/12/12 Decision also stated that the Court of Appeals would not remand the case to the trial

Court `so that my 2/16/11 motion could be considered'. (See the discussion for Proposition of

Law No. II.) In my 4/25/12 Motion for Reconsideration, I pointed out that evidence in my

2/16/11 motion (concerning my 12/8/10 illness) is a reason that the case should be remanded `so

that my 2/16/11 motion can be considered'. My 4/25/12 Motion was denied.

It was on 1/26/11 that I first provided the trial Court with evidence to prove that I did not attend

the deposition on both 12/6/10 and 12/8/10, because of a medical emergency. If the trial Court

had docketed what I submitted to it on 1/26/11, it would not be necessary to rely on the contents

of my Civ.R. 60(B) motion, for the proof of my 12/8/10 illness. In my Appeal Brief, I also

discussed the fact that evidence in the Court of Appeals' Record proves that the Office of the

Clerk has a history of refusing to docket documents that I submit to the Court. As an example, on

6/3/11, I submitted `via certified mail' to the Office of the Clerk for the Court of Appeals (which

t__ L_ t^t1C.. C L l+1.,_t C- ai... ..^...i !' .-t\ Do..l.. t..tlu.u (l..r...^:4 i.e. tl. 4 ih°v d°vf°vnda.^:tvis a18V tttG Vtt1G8' Vt ittP ldctlC wt Lno bllal i.vai«) a iwyijr w^a. vyyvaa.ivaa

niade to my 5/16/11 motion. After the Office of the Clerk failed to docket the Reply papers, I sent

`via certified mail' a 6/10/11 letter to the Office of the Clerk, in which I requested that it put my

Reply papers into the Record. On 6/22/11 (and after the Court made a decision that denied my

5/16/11 motion), the Office of the Clerk put my Reply papers into the Record and put a stamp on

^a

them that falsely represented that they were filed on 6/22/11. As I pointed out in my Appeal Brief,

the Court of Appeals' Record includes certified mail receipts (for the 6/3/11 delivery of my Reply

papers and the 6/13/11 delivery of my 6110/11 letter), a letter for the Newark (OH) Postmaster

that states that the 6/3/11 delivery was made to the Office of the Clerk by the Postal Service, my

6/10/11 letter, and my 6/3/11 Reply papers that have been erroneously stamped.

Refusing to remand the case to the trial Court `so that my Civ.R 60(B) motion could be

considered' was a denial of my due process right to be heard. Remanding the case, could render

other denials of my due process right to be heard (ie: the trial Court's dismissal of my complaint

`without allowing me to respond to the Motion to Disniiss', failure to hear my Civ.R. 60(B)

motion that it had jurisdiction to hear, and 1/26/11 failure to docket the proof illness) harmless.

Pronosition of Law No. IV: When a Local Rule requires that a non-movant must be served

with a Notice of a hearing for a motion and that the hearing date must be scheduled by theCourt, the non-movant is served with a Notice that describes the date and time of an oralhearing, and the oral hearing that is described in the Notice does not take place and is not

scheduled to take place, the movant or the Court has a duty to provide the non-movantwith either a Notice that indicates the correct date and time of the oral hearing or a Noticethat describes a non-oral hearing, the Court has a duty to schedule the hearing, and failureto perform these duties is a denial of the non-movant's procedural due process rights.

D....o, A t.. 4..^f fl.o !`..,,rf ^.F flnnaalc' d17717') Tlnrieinn etata that I armiatj t}tat t}tP trial r( NlT'ti u^w v w a va uiv vv.... .._ .y+i........ ., ...., .... .. ............. ...»... ....». - . a»_» .,__..... ____ __ _^_ _ _ ^_ _

erred by dismissing my complaint (on the basis of the Defendants' Motion to Dismiss that I did

not file a response to) and failing to notify me of when I should respond to the motion or of the

date of the non-oral hearing on the motion. They also state that the dismissal was proper, because

the motion included a statement that set a non-oral hearing date for 12/21/10 `which put me on

notice that my response to the motion was due by 12/21/10` and I cited no authority for the

proposition that it is the trial Court's responsibility to inform parties of their duties. Page 3 of the

4/12/12 Decision also states that the defendants' motion included a notice of a non-oral hearing

1^

on 12/21/10 at 4:30 p.m.. In my 4/25112 Motion for Reconsideration, I pointed out (and provided

evidence to prove) that the Court of Appeals made significant and obvious errors, regarding its

description of my argument and its claim that the defendants provided me with a Notice that there

would be a non-oral hearing on 12121/10 at 4:30 pnT. In its 5/15/12 Decision, the Court of

Appeals merely stated that my motion for Reconsideration was denied. The failure to correct the

obvious errors is unconscionable and is subjecting me to a`meaningless' Appeal process.

My Assignment of Error No. 1 states that "The trial Court erred, prevented me from opposing the

defendants' motions, and denied my due process right to be heard by the Court, by dismissing my

case (on the basis of the defendants' Motions and requests for an oral hearing) without

scheduling either an oral or non-oral hearing, without advising me of the intent to conduct a non-

oral hearinp, and while failing to respond to my requests to know when a hearing would take

place (and to know when my opposition to the motions was due)". My Appeal Brief and my

Reply to the defendants/appellees response to my Appeal Brief also make the following

arguments: Loc.R. 5(B) required the defendants to provide me with a Notice of a hearing, for

their motion. The defendants filed and served to me a Notice, which is A1186 of the Appendix for

my Appeal Briet that states that "Please take Notice that this Motion is scheduled for an oral

hearing (emphasis added) on December 21, 2010, at 4:30 p.m.". This is the only Notice that I

ever received and that is in the Record. The 12/21/10 oral hearinz did not take place and was not

ever scheduled 'oy the Court to take piace. iri ietters that I sent to the C,ourt (inciuding in a

12/27/101etter that is in the Record), I asked the Court to tell me when the hearing was going to

take place. The Court did not respond to any of my letters. It is my position that, when a party is

provided only with an incorrect Notice of an oral hearin2, the party moving for the hearing or the

Court has a duty (pursuant to Loc.R. 5(B)) either to advise the other party of the correct date for

/ I__

the oral hearing or to provide the other party with a Notice of a non-oral hearinQ. It is also my

position that the Court had an obligation (pursuant to Loc.R. 5(13)) to schedule a hearing date.

Civ.R. 6(D) also states that a written motion and a notice of the hearing for the motion shall be

served not later than 7 days before the date ixed for the hearing and that emosing aidavits may

be served not later than one day beLore the hearing. I could have made my verbal opposition to

the defendants' motions `at the oral hearing that was requested by the defendants' and I could

have figured out the due date for my written opposition `in the event that a non-oral hearing was

going to be held', only after I was advised of the date that the hearing was scheduled to take

place. The Court Docket Report shows that, when the 1/31/11 decision was made that dismissed

my complaint, the Court had not scheduled an oral or non-oral hearing.

With my 5/14/12 Reply to the defendants' Opposition to my 4/25/12 Motion for Reconsideration,

I provided the Court with a copy of the Notice that was provided to me by the defendants, which

was certi ed by the Office of the Clerk for the Court of Appeals as being a true copy of the

document that is in the Record. It states that "Please take Notice that this Motion is scheduled

for an oral hearinp (emphasis added) on December 21, 2010, at 4:30 p.m.". It proves that the

Court of Appeals made an obvious error in the 4/12/12 Decision, when describing that the Notice

allegedly states that a non-oral hearing was scheduledfor Deceneber 21, 2010 at 4:30 pm.

Proposition of Law No. V: The Court of Appeals has a duty to correct its obvious errors,v$liich resulted in an Appeal denial, when it is provided (via a Motion for Reconsideration)

with proof that the errors werr iuade and when thr proof inCiudeS a docunient that iscertified by the Office of the Clerk as being a true copy of what is in the Record .

Argument for Proposition of Law No. IV (above) is also applicable to Proposition of Law No. V.

Proposition of Law No. VI: When a Court of Appeals does not address significantissues/allegations of the Appeal (on the basis of an erroneous claim that the Supreme Courtof Ohio has already reviewed the issues/allegations and found no basis for them), theappellant has 'effectively' been denied his/her right to an Appeal.

13

On pages 11 and 12 of its 4/12/12 Decision, the Court of Appeals stated that my third

Assignment of Error argued that the trial Court judge's bias against me caused him to grant the

Motion to Dismiss and that this Assignment of Error wds overruled, based upon the Court's

analysis of my second Assignment of Error and because I raised my allegations of bias with the

Supreme Court of Ohio and the Supreme Court found no basis for them. In my 4/25/12 Motion

for Reconsideration, I discussed the evidence that was overlooked, when my second Assignment

of Error was evaluated. (See the discussion for Proposition of Law No. III.) More importantly,

my Motion for Reconsideration discusses the Court of Appeal's obvious error, in claiming that

my issues/allegations were heard by the Supreme Court, which found no basis for them.

My Appeal Brief states (and supports with evidence) that the trial Court judge was biased against

me and demonstrated his bias, with the following acts of denial of my due process right to be

heard, abuse of discretion, arbitrary, capricious, and unreasonable behavior, treating me in a

differential manner than the defendants were treated, and retaliation (because I complained, in an

Affidavit for Disqualification): The trial Court failed to ever hear 4 motions that I filed, made an

,.,7,... +1.,.+ .i....;...7 .... , t;...el.. f.1o.i A,fe.t;.... ^F r T o.^..o t.. Amnnrl m mr.loin4 (.^rM;nh ;nrll,llarlV1

.-UG1 L11Q.L UG1llGµ 111^' LlllllAJ' lllVµ 1T1L)L1V31 LVl LYWYY LV ^aaiaVicµ a^ vV iiYawua. `v +aav+1 u+vwwvu

proposed amendments that would have resulted in a complaint having claims upon which relief

could be granted) and refused to provide me with a reason for the denial, failed to promptly rule

on 2 of my motions, issued incomplete orders that only partially addressed issues that I had raised

in motions, refused to provide to me documents/evidence and orders/entries that are in the

Record, made entries that provided no explanation for the denials of my motions and refused to

respond to my written requests for explanations, ordered me to attend an unreasonable 4-day

deposition (on the basis of a motion made by the defendants that the Court would not

J^

acknowledge that I made an objection to), made an order that was erroneously labeled as an

`agreed order' and would not acknowledge that I made objections to the order, subjected the

defendants and I to differential treatment (when the defendants filed a 9/15/10 motion and I filed a

9/17/10 and 9/24/10 motions), failed and refused to hold requested oral hearings on my motions

(while holding an oral hearing for defendants), dismissed my case on 1/31/11 without scheduling

an oral or non-oral heating for the Motion to Dismiss (as Local Rules required the Court to

schedule), dismissed my case after I was provided with an incorrect Notice of an oral hearing for

the Motion to Dismiss and without providing me with a correct Notice of an oral hearing or a

Notice of the intent to hold a non-oral hearing (as Local Rules dictated that I was to be provided),

and did other things. In my 4/25/12 Motion for Reconsideration of the 4/12/12 Decision, I

provided a copy of the Supreme Court of Ohio's 12/29/10 Decision for my Affidavit for

Disqualification, which proves that the Supreme Court did not determine that there were no basis

for my issues and it actually stated (on page 2 of its Decision) that my issues were not appropriate

subjects for an Affidavit for Disqualification and were issues that I might be able to pursue `on

appeal'. The Court of Appeals would not correct its obvious error and made a 5/15/12 Decision

that stated that my Motion for Reconsideration was denied. I have Appeal issues that have not

been addressed by any Court and (for the issues) I have been denied my right to an Appeal.

CONCLUSION

For tlic abv`dc reasons, thiS caSc iiivvivcS maierS vf puuii^ and greai general iiitere3i aiid a

substantial constitutional question. I respectfully, request that this Court accept jurisdiction in this

case, so that the important issues presen be reviewed on the merits.

Date ^ r^- l C^-i,assanara wutz, rro 3e

^5,

CERTIFICATION OF SERVICE

I certify that, on 5/29/12, a copy of this Memorandum in Support of Jurisdiction (with its A20 to

A28 Appendix) was sent `via ordinary mail' to each of the following:

1Vlichael S. LoughryMazenec, Raskin, et, al.250 Civic Center Drive, Suite 400Columbus, OH 43215Attorney for defendants Moundbuilders Cruidance Center, Laura Edelblute, Patrick Evans,

Robin Lupher, John Kozak, Michael Smith, Michael Whiteheacl, Lannie Stoll, Mike Piper, John

Michael Berty, Louise Berry, Ole Bay, Stephen Mullendore, John Capper, Debbie Kirk, Park

National Bank, and Behavioral Healthcare Partners

Michael W. HawkinsDinsmore and Shohl1900 Chemed center255 East Fifth StreetCincinnati, OH 45202Attorney for defendant Community Mental Health and Recovery Board of Licking and Knox

Counties

Brigid E. HeidCarlile, Patchen, et. al.366 East Broad StreetColumbus, OH 43215Attorney for defendants Jeff Forman and Forman & Associates Consulting

Daie

16

COURT OF APPEALSLICKING COUNTY, OHIO 7017 PR (2 Af9 11: 47

FIFTH APPELLATE DISTRICT

CASSANDRA WILTZ

Plaintiff-Appellant

-vs-

MOUNDBUILDERS GUIDANCECENTER, et al.

Defendants-Appellees

CHARACTER OF PROCEEDING:

OI..E;?K OF COU;TOF r,PPEAI.S,

LIC/ !VNG CC)I JI::T'f, C)H:niL

ili:IIJJUDGES: l)"1f H.

Hon. W. Scott Gwin, P.J.Hon. John W. Wise, J.Hon. Patricia A. Delaney, J.

Case No. 11 -CA-22

O.P.INION

Appeal from the Licking County Court ofCommon Pleas, Case No. 2009CV00212

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Appellant:

CASSANDRA WILTZP.O. Box 64Delaware, OH 43015

For Appellees:

MICHAEL W. HAWKINS1900 Chemed Center255 E. 5m St.Cincinnati, OH 45202

AFFIRMED

For Appellees:

BRIGID E. HEID366 E. Broad St.Columbus, OH 43215

KELLY KAUFFMAN191 W. Nationwide Blvd., Suite 300Columbus, OH 43215

ROBERT H. STOFFERSMICHAEL S. LOUGHRYAMY S. THOMAS250 Civic Center Dr., Suite 400Columbus, OH 43215

N

, Licking County, Case No. 11-CA-22 .2

Delaney, J. ..

{%1} Plaintiff-Appellant Cassandra Wiltz appeals the January 31, 2011

decision of the Licking County Court of Common Pleas dismissing Appellant's

complaint.

FACTS AND PROCEDURAL HISTORY

{12} On February 3, 2009, Appellant filed a pro se civil complaint against the

following Defendants-Appellees: Moundbuilders Guidance Center, Behavioral Health

Care Partners, Inc., Community Mental Health Recovery Board, Park National Bank,

Forman and Associates Consulting, Jeff Forman, Laura Edelblute, Patrick Evans,

Robin Lupher, John Kozak, Michael Smith, Michael Whitehead, Lannie Stoll, Mike

Piper, John Berry, Louise Berry, Ole Bay, Stephen Mullendore, John Capper, and

Debbie Kirk. In her complaint, Appellant asserted ciaims for violation of Ohio's Whistle

Blowers Act, wrongful discharge in Violation of public policy, race discrimination and/or

retaliation, and intentional infliction of emotional distress.

{¶3} The record in this case is replete with motions to amend, motions to

dismiss, requests for discovery, and motions to compel. The following is a limited

recitation of the procedural history resulting in the appeal sub judice.

{14} Appellees served Appellant with a notice of Appellant's deposition by

regular and certified mail. The notice of deposition confirmed the dates for the

deposition as August 10 and 11, 2010. Appellant received the certified notice of

deposition on July 28, 2010. Appellant did not appear for the August 10, 2010

deposition.

42,

aLicking County, Case No. 11-CA-22

{¶5} On September 15, 2010, Appellees filed a motion to compel Appellant's

attendance at deposition. The trial court held an oral hearing on the motion to _compel

on September 24, 2010. By judgment entry on September 28, 2010, the trial court

granted Appellees' motion to compel and ordered Appellant to appear for deposition

on December 6, 8, 9, and 10, 2010 at the office of Appellees' legal counsei,

{16} On December 6, 2010,Appellant called the law office and stated she

could not attend the deposition because of a medical emergency. Appellant explains

in her Appellant's brief that she had an emergency tooth extraction on December 6,

2010.

{¶7} On December 8, 2010, Appelfees convened for Appellant's deposition,

but Appellant did not appear. Appellees claim Appellant did not contact anyone to

advise Appellees she would not be appearing. Appellees left a message for Appellant

and notified her they were cariceling the deposition scheduled for December 9 and 10,

2010 due to Appellant's absences.

{18} Appellant states on December 8, 2010, she requested Appellees

reschedule the depositi-on and provide ner with new dates.

{¶9} Appellees filed a Joint Motion to Dismiss and For Sanctions with the trial

court on December 6, 2010. In their motion, Appellees requested the trial court

dismiss Appellant's complaint with prejudice as a discovery sanction pursuant to

Civ.R. 37(B)(2)(c) for Appellant's failure to comply with the September 28, 2010

judgment entry ordering Appellant to appear for deposition. Pursuant to Loc.R. 5(B) of

the Court of Common Pleas of Licking County, General Division, the motion included a

notice of a non-oral hearing scheduled for December 21, 2010 at 4:30 p.m.

A3

=Licking County, Case No. 11-CA-22 4

{110} Appellees filed supplemental motions to their joint motion for sanctions

on Deceinber 10, 2010 and December 13, 2010.

{1[11 } On or before December 6, 2010, Appellant filed an affidavit with the Ohio

Supreme Court under R.C. 2701.03 seeking to disqualify Judge W. David Branstool

from further proceedings in the case. In her affidavit, Appellant alleged the judge was

biased.. against her and in.favor of Appellees.

{¶12} On January 3, 2041.; Appellant sent a letferto the trial court, notifying the

trial court it was her Intent to file a response to the joint motion to dismiss and for

sanctions. Appellant requested the trial court advise her of when her response to the

joint motion was due and when the trial court scheduled a hearing on the joint motion.

{¶13} The Ohio Supreme Court denied Appellant's affidavit of disqualification

and the judgment entry was filed with the Licking County Clerk of Courts on January 4,

2011.

{¶14} On January 31, 2011, the trial court granted Appellees' joint motion to

dismiss and for sanctions. The trial court dismissed Appellant's complaint with

prejudice.

{115} Appellant filed a motion for relief from judgment on February 16, 2011.

{¶16} On March 2, 2011, Appellant filed her notice of appeal of the January 31,

2011 judgment entry dismissing Appellant's complaint.

ASSIGNMENTS OF ERROR

{%17} Appellant raises five Assignments of Error:

{¶18} "!. THE TRIAL COURT ERRED, PREVENTED THE PLAINTIFF FROM

OPPOSING THE DEFENDANTS' MOTIONS, AND DENIED THE PLAINTIFF'S DUE

4^

Licking County, Case No. 11.-CA-22 5

PROCESS RIGHT TO BE HEARD BY THE COURT, BY DISMISSING THE

PLAINTIFF'S CASE (ON THE BASIS OF THE DEFENDANTS' MOTIONS FOR

SANCTIONS AND REQUESTS FOR AN ORAL HEARING) WITHOUT SCHEDULING

EITHER AN ORAL OR NON-ORAL HEARING FOR THE DEFENDANTS' MOTIONS,

WITHOUT ADVISING THE PLAINTIFF OF THE INTENT TO CONDUCT A NON-

ORAL_ HEARING, AND WHILE FAlLJNG AND REFUSING TO RESPOND TO THE

PLAINTIFF'S REQUESTS: TO KNOW WHEN A HEARING WOULD TAKE PLACE

(AND TO KNOW WHEN THE PLAINTIFF'S OPPOSITION TO THE MOTIONS WAS

DUE).

{¶19) "II. THE TRIAL COURT JUDGE ABUSED HIS DISCRETION AND MADE

AN ORDER THAT WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE, WHEN

HE DISMISSED THE PLAINTIFF'S COMPLAINT 'AS A SANCTION, FOR FAILURE

TO ATTEND A DEPOSITION, GIVEN THAT THE PLAINTIFF DID NOT ATTEND THE

DEPOSITION BECAUSE OF ILLNESS AND THE JUDGE WAS ACTING UPON HIS

BIAS AGAINST THE PLAINTIFF."

{¶20} "III. THE TRIAL COURT JUDGE'S BIAS AGAINST THE PLAINTIFF (IN

APPEARANCE AND IN FACT) AND DESIRE TO RETALIATE AGAINST THE

PLAINTIFF (FOR MAKING A COMPLAINT ABOUT THE BIAS) RESULTED IN THE

JUDGE MAKING AN ORDER THAT DISMISSED THE PLAINTIFF'S COMPLAINT

AND A FALSE CLAIM THAT THE ORDER WAS MADE ON 1/31/11."

{¶21 }"IV. THE TRIAL COURT'S FAILURE TO HEAR THE PLAINTIFF'S

2/16/11 MOTION FOR RELIEF FROM THE JUDGMENT DATED 1/31/11 WAS AN

ABUSE OF DISCRETION, DENIAL OF THE PLAINTIFF'S DUE PROCESS RIGHT TO

4Y

oLicking County, Case No. 11-CA-22

BE HEARD BY THE COURT AND TO PARTICIPATE IN THE PROCEEDINGS,

ARBITRARY, CAPRICIOUS, AND UNREASONABLE, AND ADDITIONAL EVIDENCE

OF THE COURT'S BIAS AGAINST THE PLAINTIFF (WHICH RESULTED IN THE

ORDER bATES 1%31/11 BEING MADE).

{122} "V. THE COURT ERRONEOUSLY DISMISSED THE PLAINTIFF'S

COMPLAINT, GIVEN THAT THE ORDER THAT DISMISSED THE COMPLAINT WAS_. ... _... .

MADE AS A RESULT OF FRAUD OF THE COURT (WHICH FALSELY CLAIMED:

THAT THE ORDER WAS MADE ON 1/31/11) AND FRAUD OF THE DEFENDANTS

(WHO MADE MOTIONS FOR SANCTIONS THAT INCLUDED KNOWN FALSE.

CLAIMS, WHICH THE COURT WAS ALSO AWARE WERE FALSE)."

ANALYSIS

L

{123} Appellant argues in her first Assignment of Error the trial court erred byi*

failing to notify Appellant of when she should respond to the joint motion. to dismiss

and for sanctions or notify her of the date of the non-oral hearing on the joint motion.

We disagree.

{¶24} Loc.R, 5 of the Licking County Court of Common Pleas, General

Division, states in pertinent part:

(B) All motions shall be submitted to the Court for docketing at the

time they are filed with the Clerk of Courts. At the time of the submittal of

the motion, the moving party shall submit to the Court an order or notice

of hearing scheduling an oral or non-oral hearing upon the motion. The

motion and order or notice of hearing containing the oral or non-oral

Iib

.Licking County, Case No. 11-CA-22

hearing date shall be served upon all opposing parties or their counsel

by the moving party.

(1) In accordance with Rule 6(D) of the Ohio Rules of Civil

Procedure, the oral or non-oral hearing niay be set no earlier than seven

(7) days after the date of service of the motion, unless the Court in an

order explicitly affixes a shorter time pe(od,

{525.}:.ln this case, Appellees filed their joint motion to dismiss and for

sanctions on December 6, 2010. Pursuant to Loc.R. 5, Appellees included a

statement within the joint motion setting a non-oral hearing for December 21, 2010.

The joint motion was served to Appellant by certified mail. Appellant makes no cfairri

she did not receive the joint motion.

{¶26) On or about December 6, 2010, Appellant filed an affidavit of

discjualification with the Ohio Supreme Court. Filing an affidavit of disqualification

operates to stay all proceedings pending before a judge. R.C. 2701,03(D)(1). On

January 3, 2011, Appellant sent a letter to the trial court, notifying the trial court it was

her intent to file a response to the joint motion to dismiss and for sanctions. Appellant

requested the trial court advise her of when her response to the joint motion was due

and when the trial court scheduled a hearing on the joint motion. The Ohio Supreme

Court denied the affidavit of disqualification and said judgment entry was filed with the

Licking County Clerk of Courts on January 4, 2011.

{¶27} Appellant never filed a response to the joint motion. On January 31,

2011, the trial court granted Appeilees' joint motion to dismiss and for sanctions.

M

Licking County, Case No. 11-CA-22 . 8

{728} Appellant proceeded in this action pro se. A pro se litigant is presumed

to have knowledge of the law and correct legal procedures so that she remains

subject to the same rules and procedures to which represented litigants are bound.

Carskadon v. Avakian, 5th Dist. No. 11 CAG020018, 2011-Ohio-4423, ¶ 33 citing

Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th

Dist.1996). She is not,.given greater..rights.than represented parties, and.must bear

the consequences of her mistakes. Id. Parties to an action have a duty to. keep

themselves apprised of the.entries on the record and to monitor the progress of their

case. Wiltz v. Clark Schaefer Hackett & Co., 10th Dist. Nos. 11AP-64 & 11AP-282,

2011-Ohio-5616, ¶21 citing CitlMorfgage, Inc. v. Bumphus, 6th Dist. No. E-10-066,

2011-Ohio-4858, ¶36; Yoder v. Thorpe, 10th Dist. No. 07AP-225, 2007-Ohio-5866, ¶

13.

:{¶29} Appellant cites no authority for the proposition it is the trial court's

responsibility to inform the- parties of their duties as to pretrial motions. In this case,

the joint motion put Appellant on notice her response to the joint motion was due on or

before December 21, 2010 because a non-oral hearing would be held on December

21, 2010. Appellant's January 3, 2011 letter to the trial court demonstrates Appellant

was aware of the joint motion and she knew she could file a response to the joint

motion. While Appellant's affidavit for disqualification stayed the matter, on January 4,

2011 the trial court regained jurisdiction and was free to rule on all pending matters.

The trial court did not rule on the joint motion until January 31, 2011. All the while,

Appellant did not file a response to the joint motion or move the trial court for an oral

hearing on the motion.

o Licking County, Case No. 11 -CA-22 g

{130} We find no error by the trial court under Appellant's first Assignment of

Error. Appeiiant's first.Assignment of Error is overruled.

{131 } Appellant argues in her second Assignment of Error the trial count erred

in dismissing her case with prejudice. We disagree.

{132} In her argument, Appellant faiis to comply with App.R. 16(A)(7). The rule

states Appellant shall include in her brief, "(ajn argument containing: the contentions of

the appellant with respect to each assignment of error presented. for review and the .

reasons in support of the contentions, with citations to the authorities, statutes, and

parts of the record on which appellant relies." Appeilant cites no authority for her

argument as to .why the trial court erred in granting Appeilees' joint motion for

sanctions and dismissing her case with prejudice. As such, we review Appellant's

argument under the bare parameters of Civ.R. 41 and Civ:R. 37.

{133} Civ.R. 41 governs dismissal of actions. Subsection (B)(1) states the

following:

(B) Involuntary dismissal: effect thereof

(1) Failure to prosecute. Where the plaintiff faiis to prosecute, or comply

with these rules or any court order, the court upon motion of a defendant

or on its own motion may, after notice to the plaintiffs counsel, dismiss

an action or claim.

{%34} Civ.R. 37 governs failure to make discovery. Subsection (B)(2)(c) states

the following:

(B) Failure to comply with order

M

Licking County, Case No. 11-CA-22 10

(2) If any party or an officer, director, or managing agent of a party or a

person designated under Rule 30(B)(5) or Rule 31(A) to testify on behalf

of a party fails to obey an order to provide or permit discovery, including

an order made under subdivision (A) of this rule and Rule 35, the court in

which the action is pending may make such orders in regard to the failure

as are just, and among others the following:

(c) An order striking out pleadings or parts thereof; or staying further

proceedings until the order is obeyed, or dismissing the action or

proceeding or any part thereof, or rendering a judgment by default against

the disobedient party.

{735} The decision to impose sanctions is left to the discretion of the trial court

and will not be reversed on appeal absent an abuse of discretion. Strayer v. Szerlip,

5th Dist. No. 01-CA-28, 2002-Ohio-1577 citing Mills Transfer, Inc. v. Z & Z Distributing

Co., 76 Ohio App.3d 628, 602 N.E.2d 766 (6th. Dist.1991). The decision to dismiss a

case pursuant to Civ.R. 41(B)(1) is also within the sound discretion of the trial court.

Jones v. Hartranft, 78 Ohio St.3d 368, 371, 678 N.E.2d 530 (1997). In order to find

abuse of discretion, we must determine the trial court's decision was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St,3d 217, 219, 450

N.E.2d 1140, (1983).

{136} Appellant did not attend a deposition scheduled for August 10, 2010.

Appellees filed a motion to compel Appellant's attendance and on September 28,

2010, the trial court granted Appellees' motion to compel and ordered Appellant to

appear at deposition on December 6, 8, 9, and 10, 2010. On December 6, 2010,

^-/d

eLicking County, Case No. 11 -CA-22 11

Appellant canceled her attendance at the deposition due to a medical emergency.

Appellant did not attend the deposition on December 8, 2010. Appellees canceled the'

remaining dates for deposition.

{737} Where the record does not indicate that failure to comply with discovery

was due to involuntary inability, such as illness, rather than willfulness, bad faith or

any other fault of the noncomplying party, a trial court does not abuse its discretion by

dismissing the action pursuant to Civ.R. 37(B)(2)(c); Aydin Co. Exchange, Inc. v.

Marting.Realty, 118 Ohio App.3d 274, 279 (9th Dist:1997) citing Shoreway.Circle, Inc.

v. Gerald Skoch Co., L.P.A.; 92 Ohio App.3d 823, 832 (8th Dist.1994).

{138} Appellant did not file a response to the joint motion to dismiss and for

sanctions at the trial court level. She argues on appeal she suffered a medical

emergency on December 6, 2010 and there is evidence within Appellees' Joint motion

that Appellant suffered a medical emergency on December 6, 2010. However, there is

no evidence that Appellant was unable to attend the December 8, 2010 deposition.

{139} Pursuant to the record before us, we find no abuse of discretion for the

a: c^ui..^ _.....iL w yianc_ ___^Lt

nr^Npe

.___ileesu___i ._ jnEe._.. .

motion.ror

_sanctions an

d . .tooIsmi

.. . .trial ,oss Appeilants

complaint with prejudice.

{¶40} Appellant's second Assignment of Error is overruled.

IIL

{¶41 } Appellant argues in her third Assignment of Error that the judge's bias

against Appellant caused the trial court to grant Appeltees' joint motion to dismiss and

for sanctions.

AIt

Licking County, Case No. 11-CA-22 12

{¶42} We overrule Appellant's third Assignment of Error based on the law and

analysis in the second Assignment of Error.

{143} Further, Appellant raised her allegations of bias by the trial court judge

with the Ohio Supreme Court in her affidavit of disqualification, The Court found no

basis for her allegations.

!V.

{¶44} Appellant argues in her fourth Assignment of Error the trial court abused

its discretion in failing to rule on her motion for relief from judgment filed February 16,

2011. We disagree.

{¶45} A final judgment can be the subject of a Civ.R. 60(B) motion requesting

relief from judgment. Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 380, 423

N.E.2d 1105 (1981); Rose v. Zyniewicz, 10th Dist. No. IOAP-91, 2011-Ohio-3702, ¶

15. However, once a party has appealed the uhderlying judgment, the trial court loses

jurisdiction to consider a Civ.R. 60(B) motion for relief from judgment. Howard v.

Catholic Social Servs. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 147, 637 N.E.2d 890

........ .court only

_ ___..,.___ :.._:_^:_u_° .. nt..r, cnio^ :a(^a.y^4). The t ria l̂ cour[ onlacqu^r6s^unsuicuon w wns1uc1 A.,w.rc. vVkD) 1IJuuun n

the appellate court remands the matter to the trial court for such consideration. Id.

{¶46} In this case, Appellant filed her motion from relief from the January 31,

2011 judgment on February 16, 2011. Appellant filed her notice of appeal from the

January 31, 2011 judgment on March 2, 2011. Appellant did not ask for, and we did

not initiate, a remand to the trial court for consideration of Appellant's post-judgment

motion. The trial court correctly did not rule on Appellant's request for relief because it

lacked jurisdiction to do so.

Licking County, CaseNo. 11-CA-22 13

{147} Appellant's fourth Assignment of Error is overruled.

V.

{148} Appellant appears to argue in her fifth Assignment of Error the trial court

erred in granting Appellees' joint motion for sanctions and to dismiss. Appellant also

argues the date time-stamped on the January 31, 2011. judgment entry is false.

149} Based on the law and analysis in Appellant's second Assignment of Error

as to the merits of Appellees' joint motion, we overrule Appellant's fifth Assignment of

Error.

{¶50} A review of the trial court case file shows an original judgment entry

granting Appellees' joint motion to dismiss and for sanctions was time-stamped by the

Licking County Clerk of Courts for the Licking County Court of Common Pleas on

January 31, 2011 at 2:08 p.m. We find no evidence this time-stamped date is false.

{151) Appellant's fifth Assignmeht of Error is overruled.

415

; Licking County, Case No. 11-CA-22 14

CONCLUSION

{152} Accordingly, we overrule Appellant's five Assignments of Error.

{¶53} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Delaney, J.

Gwin, P.J. and

Wise, J. concur.

9M/1/l /^A an

?,

PAD:kgb

ON. PATRICIA A. DELANEY

/,) 41"" sON. W. SCOTT GWIN

4i^

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHI(^ ^LED

FIFTH APPELLATE DISTRICT 20,2 AM 1 2 AH i F: 46

CASSANDRA WILTZ . CLL ;C 0= C0iiF;T

• E lui`,'i;G LXJU.`v i l'`• ^=.^ ^ ^ , ^. ';L='S

Plaintiff-Appellant

-vs- JUDGMENT ENTRY

MOUNDBUILDERS GUIDANCECENTER, et al.

Defendants-AppelleesCase No. 11-CA-22

For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.

`HON. PATRICIA A. DELANEY

^f5

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIR 1L ^`aFIFTH APPELLATE DISTRICT

CASSANDRA WILTZ

Plaintiff-AppellantJUDGMENT ENTRY

-vs-

MOUNDBUILDERS GUIDANCECENTER, et al.

Defendants-Appellees : Case No. 11 -CA-22

0 xm (i: o;3

This matter is before the Court upon Appellant's Motion for an order that

compels defendants/appellees to put the transcript of the trial court's 9/24/10 hearing

into the record and to provide a copy of the transcript to the appellant and a motion

for an order granting the plaintiff/appellant leave to amend the conclusion of her

appeal brief. Appellees filed a joint response opposing the motion.

Upon due consideration, the Court finds the motions to be not well taken and

DENIES the same.

IT IS SO ORDERED.

HON. PATRICIAA. DELANEY ^

r

fl/6 WN

FILEDIN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT jpJZ MAY I S A8: S4

CASSANDRA WILTZ CLERK OF COUR7SOF APPEALS

Plaintiff -Appellant : Case No. 11-CA-22 LiCKWU Cdl7NTY 09'G ARY R. WAt_TERS

-vs-

JUDGMENT ENTRY--M91J-N-D BU',LDER' 3-CkJ-10 A N G E-

CENTER; et al.

Defendants-Appel lees

This matter is before the Court upon a Motion to Certify a Conflict and an

Application for Reconsideration filed by the Appellant on April 25, 2012.

In order to qualify for certification to the Supreme Court of Ohio pursuant

to Section 3(B)(4), Article !V of the Ohio Constitution, a case must meet the

following three conditions:

First, the certifying court must find that its judgment is in conflictwith the judgment of a court of appeals of another district and theasserted conflict must be 'upon the same question.' Second, thealleged conflict must be on a rule of law--not facts. Third, theIOurnal entrv or oninion of tha r.artifvinn r.nnrt mnet rrAnrrxf eo+. _- _ _ -___. _. _.._ -_._.^. .^ _.,-... ......... ........ J ....

forth the rule of law which the certifying count contends is inconflict with the judgment on the same question by other districtcourts of appeals. Wfiitlock v.. Gilbane 8/dg. Co. (1993), 66 OhioSt.3d 594, 596, 613 N.E.2d 1032.

The test generally appiied to a Motion for Reconsideration is whether the

motion calls the Court's attention to an obvious error in the decision or raises an

issue for consideration, which was not considered or not fully considered by the

Court. See, e.g., Erie Insurance Exchange v, Colony Development Corp., 136

Ohio App.3d 419, 736 N.E.2d 950 (2000). "An application for reconsideration is

not designed for use in instances where a party simply disagrees with the

4`17

conclusions reached and the logic used by an appellate court." Norris v.

Philander Chase Co., 5th Dist. No. 10-CA-04, 2010-Ohio-6653 citing State v,

Owens (1997), 112 Ohio App.3d 334, 336, 678 N.E.2d 956.

Upon due consideration of Appellant's arguments within her motion to

certify a conflict and her motion to reconsider our decision of April 12, 2012, we

find-the-rrtot;m rs io- be-nat w

MOTIONS DENIED.

IT IS SO ORDERED.

e-same:

^^^ ^J (^, 2^^'"HON. PATRICIA A. DELANEY ^

Ats' Ws1

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIOFIFTH APPELLATE DISTRICT ?112 MY 15 A3-5U

CASSANDRA WILTZ .,L c;?^ OF CCt}RTSQF APPcALS

L+,CKING COUNTY OHPlaintiff - Appellant : Case No. 11-CA-22 GARY P.V4ALTERS

-vs-

MOUNDBUILDERS GUIDANCECENTER, et al.

JUDGMENT ENTRY

Defendants-Appellees

This matter comes before the Court upon a Motion for En Banc

Consideration. The Court has reviewed the motion as well as the cases cited

and denies the motion for en banc consideration as no majority in favor of

granting the motion could be reached.

MOTION DENIED.

IT IS SO ORDERED.

JUDGE

C Cc C-C)JUDGE

JUDGE

Ai9 309

IN THE SUPREME COURT OF OHIO

CASSANDRA WILTZ,

Plaintiff,

vs.

MOUNDBUILDERS GUIDANCECENTER ET AL.,

Defendants.

Conunon Pleas Case No. 09-CV-0212

From the Licking CountyCourt of Common Pleas

Supreme Court Case No. 10-AP-117

Judgment Entry

Cassandra Wiltz has filed an affidavit with the Clerk of this Court under R.C. 2701.03

seeking to disqualify Judge W. David Branstool from further proceedings in case No. 09-CV-

0212, a civil matter now pending in the Court of Common Pleas of Licking County.

Wiltz alleges that Judge Branstool is biased against her and in favor of the defendants.

According to Wiltz, the judge has denied her due process by refusing to hear and rule on her

motions. She also alleges that Judge Branstool's "past and current/expected relationships" with

certain defendants are in large part the source oi his bias against her ana "his aesire to eriect a

dismissal of [her] case against the defendants."

Judge Branstool has responded in writing to the concerns raised in the affidavit of

disqualification. The judge states that when he began serving on the common pleas court,

Wiltz's case was part of the docket that he inherited from his predecessor. He avers that he had

no knowledge at that time of the issues or the parties involved. The judge concedes that he

knows several of the defendants named in the underlying lawsuit on a professional basis, but he

maintains that nothing about these relationships would prohibit him from presiding over the case

in a fair and impartial manner.

For the following reasons, I find no basis for ordering the disqualification of Judge

Branstool.

Judge's AIIeged Prejudicial Decisions

As evidence of the judge's bias and prejudice against her, Wiltz subnuts that Judge

Branstool (1) denied her motion to amend her complaint without stating a justifiable reason, (2)

failed to promptly rule on certain motions, (3) refused to schedule oral hearings on certain

motions, (4) issued an incomplete order that only partially addressed issues that she had raised,

(5) failed to provide her with a copy of an order, and (6) ordered her to attend an "unreasonable"

four-day deposition. Wiltz further claims that, in contrast, the judge has responded immediately

to all of the defendants' motions, granted all of the defendants' discovery-related motions, and

provided defendants with copies of all orders.

Wiltz's views about Judge Branstool's rulings and other legal matters do not provide a

basis for his disqualification. It is well settled that disagreement or dissatisfaction with a court's

legal rulings, even if those rulings may be erroneous, is not grounds for disqualification. In re

n)CnJ/nl)TI!'ntlnn....,n........ ^..,»...,,. nf F7nvr1 101 (lhin Ct 3A 1')17 7!1(12_(lh;n_7251 Q d CaP atcn Ira ra

Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484,. ¶ 4 (an affidavit of

disqualification "is not a vehicle to contest matters of substantive or procedural law"). Likewise,

a judge's alleged failure to promptly rule on a party's motions or to schedule hearings on such

motions is not grounds for disqualifying a judge. A judge's action - or inaction - on a motion is

within the judge's sound discretion and is not evidence of bias or prejudice. In re

Disqualification of Eyster, 105 Ohio St.3d 1246, 2004-Ohio-7350, ¶ 4. The issues that Wiltz

raises here are ones that she may be able to pursue on appeal, but they do not demonstrate bias or

prejudice on the part of the trial judge. In re Disqualifzcation of Russo, 110 Ohio St.3d 1208,

2005-Ohio-7146, ¶ 6.

2

Judge's Alleged Relationships with Defendants

Wiltz also contends that Judge Branstool has "friendships/relationships" with certain

defendants that require his disqualification. Each of Wiltz's allegations will be addressed in turn.

1. Judge's Membership in Kiwanis Club

According to Wiltz, the judge has formed relationships with defendant John Kozak,

several officers of defendant Park National Bank, and defendant Laura Edelblute, through their

"long-term mutual memberships in the Kiwanis Club of Newark." Wiltz claims that Judge

Branstool, Kozak, and other (unnamed) officers of Park National Bank were active members in

the Kiwanis Club from 2005 to December 2009. Wiltz asserts that it.is "reasonable to conclude"

that the "friendships/relafionships (that are likely life-long friendships)" between the judge,

Kozak, and the bank officers started around the time that they first became members. Wiltz

fiirther contends that Edelblute applied for membership in the Newark Kiwanis Club in October

2009. Wiltz believes that Edelblute applied for membership to the Kiwanis "for the purpose of

developing a relationship/friendship with Judge Branstool (like defendant John Kozak already

'^^au..I.>,^.^

"Generally, the more intimate the relationship between a judge and a person who is

involved in a pending proceeding, the more acute the concern that the judge may be tempted to

depart from the expected judicial detachment or to reasonably appear to have done so." In re.

Disqualification of Shuff, 117 Ohio St.3d 1230, 2004-Ohio-7355, 884 N.E.2d 1084, ¶ 6. And

disqualification is appropriate where a judge has significant personal or professional connections

to one of the parties; In re Disqualification of Celebrezze, 105 Ohio St.3d 1241, 2004-Ohio-

7360, or enjoys a close relationship with or holds particularly strong emotional ties to a person

involved in an action before the judge, In re Disqualification ofNadel ( 1989), 47 Ohio St.3d 604,

546 N.E.2d 926.

. 3

The affidavit in this case, however, does not provide convincing proof that Judge

Branstool's disqualification is justified. As an initial matter, Wiltz alleges that Judge Branstool

has disqualifying relationships with "several officers of defendant Park National Bank," but she

does not identify who those officers are. Thus, I have no way of determining the truth of this

allegation. Wiltz did submit evidence that Judge Branstool and defendant Kozak were active

members in the Kiwanis between 2005 and 2009. Wiltz offers no evidence, however, that the

judge and Kozak share a close friendship or social relationship. As to defendant Edelblute, the

record before me reflects that she applied for membership to the Kiwanis in late September or

early October 2009. But Judge Branstool resigned his membership in the Kiwanis Club

sometime in November or December 2009, undercutting Wiltz's claim that the judge and

Edelblute developed a significant relationship while both were members.

Even if Wiltz had established that Judge Branstool had personal or social relationships

with these defendants, that fact alone would not require the judge's disqualification. A judge

will not be disqualified based on the mere existence of a friendship or social relationship with a

pcrsvn invvivcLL iu a pending aliuon, abs8nt Svlile cviUCUCG uld6 ihP. judgeS reiatiun$iup wiil

affect the judge's consideration of the case. See In re Disqualification of Bressler (1997), 81

Ohio St.3d 1215, 688 N.E.2d 517 (judge's admitted friendship with police detective who would

be called as a witness was not grounds for disqualification); In re Disqualification Cunningham

(1999), 88 Ohio St.3d 1219, 723 N.E.2d 1105 (admitted friendship between judge and expert

witness was not grounds for disqualification); and In re Disqualification of Ward, 100 Ohio St.3d

1211, 2002-Ohio-7467 (friendship between judge and attorney would not automatically result in

judge's disqualification from attorney's cases). Wiltz claims that Judge Branstool's adverse

rulings are evidence that he favors these defendants, but I see nothing here that links the judge's

rulings to any alleged relationships with the defendants. Thus, the affidavit contains no evidence

4 ^Z-^ .

that Judge Branstool's alleged relationships with these defendants will impact his consideration

of Wiltz's case. Accordingly, this allegation is rejected.

2. Judge's Alleged Relationship with Defendant Williams

Wiltz also seeks Judge Branstool's disqualification because of his alleged professional

relationship with Wendy Williams, the Executive Director of defendant Community Meiital

Health and Recovery Board of Licking and Knox Counties ("CMHRB"). Wiltz alleges that the

judge has acted to protect the interests of Williams and CMI-IRB because "Williams was a

member of a special judicial panel that caused the appointment of Judge Branstool to the Licking

County Common Pleas Court."

Williams did serve in early 2010 on a panel that recommended to Governor Strickland

that Judge Branstool be appointed to the Licking County Common Pleas Court. Williams served

on one of two separate judicial appointment panels, each panel consisting of five members. Both

panels unanimously recommended that Judge Branstool be appointed to fill the seat vacated by

Judge Spahr's retirement.

Witty hni^,vevar^ nverstates the role that Williams played in Judge Branstool's

appointment. The record before me reflects that Judge Branstool was the only person who

applied to fill the vacant common-pleas-court seat. Moreover, Wiltz offers no evidence that

Williams had any particular influence over the other nine panel members, further undercutting

her claim that Williams is responsible for Judge Branstool's appointment. Nor does she present

any evidence that Williams tried to advocate for Judge Branstool. In sum, Wiltz has failed to

establish that any significant professional relationship exists between Judge Branstool and

Wilfiams.

5

3. Judge's Alleged Relationship with Defendant Moundbuilders

Wiltz maintains that Judge Branstool has a relationship with defendant Moundbuilders

Guidance Center, and other entities related to Moundbuilders, that mandates his disqualification.

Wiltz states that Judge Branstool, while serving as a judge on the Licking County Municipal

Court, developed a specialized program for offenders who suffered from mental-health and

substance-abuse problems. Wiltz asserts that the program included referring offenders to

Moundbuilders and certain facilities controlled by Moundbuilders. Wiltz refers to a campaign

statement made by Judge Branstool that this program was "one of his chief accomplishments at

Municipal Court," and that "he is currently working to develop a similar program at the Common

Pleas Court level." In a supplemental affidavit filed on December 17, 2010, Wiltz states that

Judge Branstool recently sentenced a defendant to a facility associated with Moundbuilders,

proving that the judge is "already using the referral program in the Licking County Common

Pleas Court."

Wiltz believes that Judge Branstool is protecting Moundbuilders and these other facilities

"tn Pnsiire that th? Pntitiec that arP the nnclene fnr his `cnecial nrniect' and `chief___ r____- r__^ _

accomplishment' are not subjected to a trial during which felonies and other crimes that they

engaged in will be exposed." Wiltz notes that the judge denied her motion to amend her

complaint to add certain persons and facilities associated with Moundbuilders. The only

reasonable conclusion - according to Wiltz - is that Judge Branstool was protecting

Moundbuilders and its associated facilities when he denied her motion to amend. This allegation

is rejected for the following reasons.

First, Wiltz has offered no documentation of any relationship between Moundbuilders

and the judge that would raise concerns about the judge's impartiality in the underlying case.

Wiltz's primary argument here is that Moundbuilders and certain associated facilities form the

6 1145

"nucleus" of Judge Branstool's diversion program. But Wiltz identifies only one occasion where

Judge Branstool referred an offender to a Moundbuilder facility. This hardly makes

Moundbuilders a "nucleus" of the diversion program.

Second, Wiltz offers no explanation as to why Judge Branstool would need to protect

Moundbuilders. Standing alone, the fact that Judge Branstool may have sentenced offenders to

Moundbuilders or its associated facilities for treatment does not demonstrate a disqualifying

interest. Judges often use sentencing diversion programs as an alternative to incarceration for

offenders whose offenses were infltienced by drug and alcohol addictions or mental illness.

These programs have proven to be effective sentencing alternatives and have been credited for

reducing costs and preventing future crime among offenders suffering with mental health and

substance abuse problems.

R.C. 2701.03(B)(1) requires that an affidavit include the "specific allegations on which

the claim of interest, bias, prejudice, or disqualification is based and the facts to support each of

those allegations." Wiltz suggests that Judge Branstool has an interest in protecting

NfniintlhirilrlPrc^ hiit ghP rlneg nnt gpacifv wbat that interegt is, it ie nnt thic rniyrt'c rhity tn

speculate as to what interest the affiant considers disqualifying. See In re Disqualification of

Mitrovich, 101 Ohio St.3d 1214, 2003-Ohio-7358, ¶ 4 ("An affidavit must describe with

specificity and particularity those facts alleged to support the claim of bias or prejudice"). Due

to the highly speculative nature of Wiltz's claim, it is impossible to discern any basis for Judge

Branstool's disqualification. See In re Disqualification of Walker (1988), 36 Ohio St.3d 606

(vague or unsubstantiated allegations are insufficient to establish bias or prejudice).

In sum, Wiltz has failed to establish that Judge Branstool has either a substantial

relationship with, or a disqualifying interest in, defendant Moundbuilders or its associated

facilities. On this record, no reasonable and objective observer would harbor serious doubts

7 g2,b

about the judge's impartiality. In re Disqualifzcation of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-

7359, ¶ 8 (setting forth the proper_test for disqualifying ajudge).

Changes to Court's Docket

Wiltz claims that, after she filed her affidavit ofdisqualification, improper changes were

made to the trial court's docket. Wiltz states that David Edelblute, the Licking County Common

Pleas Court Clerk and the husband of defendant Laura Edelblute, "could have been responsible

for the inappropriate/erroneous changes."

Wiltz does not explain here what Judge Branstool has done - or failed to do - that would

warrant his disqualification. If there are reasons why the judge cannot serve fairly and

impartially in the underlying case, Wiltz must explain those reasons and provide supporting

evidence as R.C. 2701.03 requires. See In re Disqualiftcation ofSolovan, 100 Ohio St.3d 1214,

2003-Ohio-5484, ¶ 5-6 (denying affidavit of disqualification where it was :"impossible to

discern" from the information in the affidavit "any evidence of bias or prejudice"). Wiltz's

failure to carry her burden under R.C. 2701.03 results in a rejection of this claim.

Conclusion

"A judge is presumed to follow the law and not to be biased, and the appearance of bias

or prejudice must be compelling to overcome these presumptions." In re Disqualiftcation of

George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have

not been overcome in this case.

Accordingly, the affidavit of disqualification is denied. The case may proceed before

Judge Branstool.

8 #, ^ 7

Dated thi day of December, 2010.

ERIC BROWNChief Justice

Copies to: Kristina D. Frost, Clerk of the Supreme CourtHon. W. David BranstoolLicking County Clerk of CourtsCassandra WiltzDavid A. Nenni, counsel for defendant CMHRBMichael S. Loughry, Counsel for defendant Moundbuilders Guidance Center

^ar