IN THE SUPREME COURT OF OHIO

ELLA MAE BOWMAN : Case No: 10

Vs.

Plaintiff-Appellant . On Appeal from the Court of AppealsOf the Eighth District

(Originally from East Cleveland MunicipalCourt: Case Number T 1 CVF 00358)County Court of AppealsEighth Appellate District

DEBBIE WILLIAMSAN'.D

CHARLES HOLLEY

Defendant-Appellees C.A. Case No. CA-12-098631

NOTICE OF APPEAL OF APPELLANT ELLA MAE BOWMAN

ELLA MAE BOWMAN, Plaintiff-AppellantBy her Attorney Joseph P. Meissner, 0022366Meissner and Associates, Law Flrm5400 Detroit AvenueCleveland, Ohio 44102Tele: 1-216-273-7323Email: meissnerjosegh^yahoo.com

COUNSEL FOR PLAINTIFF-APPELLANT

DEBBIE WILLIAMS AND CHA-RLES HOLLEYAttorneys for Defendant-AppelleesAlexander B. Reich and William E. Coughlin, AttomeysCalfee, Halter & Griswold, L.L.P.The Calfee Building1405 E. Sixth Street - 4^' FloorCleveland, Ohio 44114

COUNSEL FOR DEFENDANT - APPELLEE

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NOTICE OF APPEAL OF APPELLANT ELLA MAE BOWMAN

Appellant ELLA MAE BOWMAN hereby gives Notice of Appeal to the

Supreme Court of Ohio from the judgment of the Cuyahoga County Court of

Appeals, Eighth Appellate District, entered in Court of Appeals Case No. 98631 on

May 29, 2013. On that day Appellant Bowman's appeal was denied and she now

appeals to the Ohio Supreme Court.

This case raises substantial constitutional questions and is furthermore of

public or great general interest.

ResDeet,fullv submi

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Attor ey J ep^I P. ^Gleissner, 223Me° sner d l^ssociates, La Firm5 00 Detroit AvenueCleveland, Ohio 44102Tele: 1-216-273-73;r ,/Email: meissnerios vahci ra%nn

COUNSEL FWPLAJXTIFF-APPELLANT

IN THE SUPREME COURT OF OHIO

ELLA MAE BOWMAN

Plaintiff-Appellant

Case No:

On Appeal from the Court of AppealsEight District

(Originally from the East ClevelandMunicipal Court)

County Court of AppealsEighth Appellate District District

vS.

DEBBIE WILLIAMSAND

CHARLES HOLLEYS

Defendant-Appellees C.A. Case No. CA-12-098631

MEMORANDUM IN SUPPORT OF JURISDICTIONOFAPPELLAN7C` ELLA MAE BOWMAN

ELLA MAE BOWMAN, Plaintiff-AppellantBy her Attorney Joseph P. Meissner, 0022366Meissner and Associates, Law Firm5400 Detroit AvenueCleveland, Ohio 44102Tele: 1-216-273-7323Email: meissnerjose .phCa^,yahoo.com

COUIdTSEL FOR PLAINTIFF-APPELLANT

DEBBIE WILLIAMS AND CHARLES HOLLEYAttorneys for Defendant-AppelleesAlexander B. Reich and William E. Coughlin, AttorneysCalfee, Halter & Griswold, L.L.P.The Calfee Building1405 E. Sixth Street - 4rE' FloorCleveland, Ohio 44114

COUNSEI, FOR DEFENDANT - APPELLEE

TABLE OF CONTENTS

Pa2e No.

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC ORGREAT GENERAL INTEREST ANI) INVOLVES ASUBSTANTIAL CONSTITUTIONAL QUESTION ......................... .....

STATEMENT OF TI-1E CASE AND THE FACTS .. ................................ 6

TWO PROPOSITIONS OF LAW ........................................................ 10

FIRST PROPOSITION OF LAW: If initially in a proceedingpro se litigants are presumed to have knowledge of the law and legalpractice and are held to the same standards as litigants represented bylegal counsel, when it becomes apparent in the proceeding that this isnot true, that the pro se litigant does not have the required legalknowledge and that relevant crucial evidence is being excluded basedon technicalities, the trial court should so act in order that evidence canbe admitted when this can be done without bias or discrimination.

SECOND PROPOSITION OF LAW: Both by theConstitutions of the U.S. and of Ohio, litigants including pro se partieshave a right to a jury trial. The court should insure that the right to ajury trial is protected and not frustrated by the arbitrary use ofevidentiary rules which are really mean to help parties and not becomeobstacles to th.e admission of relevant and crucial evidence for a jury'sconsideration.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 15

CERTIFICATE OF SI;RVICE .................................................... . .. After p. 15

APPENDIXJudgment Entry and Opinion, Court of Appeals, Eighth District,Cuyahoga County, dated May 2013

Denial of Motion for Reconsideration, Court of Appeals,Eighth District, Cuyahoga County, Dated May 29, 2013

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EXPLANATION OF WHY THIS IS A CASE OF 1-UBLIC AS WELL ASGREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL

CONSTITUTIONAL QUESTION

Our judicial system openly declares pro se litigants are welcome in our courts.

Thousands of pro se litigants every day enter the doors of our Halls of Justice believing they will

receive justice even if they cannot afford or do not choose to be represented by a lawyer. Our

system even proclaims that pro se litigants have a right to ask for a jury trial. But are these

promises merely empty words that actually camouflage the reality of the myriad difficulties and

obstacles confronting pro se litigants in their search for justice? Do pro se litigants really have

the same right to a jury enjoyed by litigants represented by lawyers when the "pro se juries" will

be kept from hearing essential evidence because of legal technicalities while the "lawyer juries"

will hear that evidence since the lawyers easily know how to overcome technicalities? These

are questions Appellant Ella Mae Bowman seeks to raise in her appeal to this Supreme Court.

Let us begin with the legal aspects of Appellant Bowman's tale.

In a Jury Trial at East Cleveland Municipal Court, the non-lawyer plaintiff, Mrs. Ella

Mae Bowman, litigating pro se, although very intelligent and well-spoken, was matched against

trial lawyers possessing extensive legal educations. The lawyers came from Calfee, Halter &

Griswold which is a well-established, major law firm in our city. Clearly this was not a fair

fight. It is the Miami Heat and LeBron James versus a high school teain which however talented

is still a high school team. T'he outcome was preordained. Appellant Bowman's "clumsy"

attempts at her trial to present various important and relevant documents and photographs were

denied after Defendant Calfee attorn.eys raised various technical legal objections.

So why is this seemingly ordinary dog-bite case of public and great general interest? Secondly,

what is the substantial constitutional question involved?

We begin with the Court of Appeals decision at Paragraph 15 (hereinafter referred to as

"Paragraph 15") which starts with this alleged legal principle:

As an initial inatter, we note that pro se litigants are presumed to have knowledge of the law andlegal procedures and are held to the same standards as litigants who are represented by counsel." (State v.Bandaroapalti, 8`s Dist. No. 96319, 2011-Qhio-6158.)

Appellant Bowman is a pro se litigant. Is the Court of Appeals really serious that she has the

same "knowledge of the law and legal procedures" as the lawyers on the other side of the case?

Much of her case turned on various rulings by the trial court judge excluding major pieces of

evidence from the case. That means that the jury-who decided this case-never got to see

crucial items of evidence such as the photographs of the severe bites on Appellant Bowman's

thigh nor the police report filed in this case.

At the trial, Plaintiff Ella Mae Bowman showed the Judge the various evidentiary items

she wanted shown to the jury. These included photographs proving the fact and severity of the

dog bite she suffered. The Defendants including their attorneys had already been given advance

notice of these documents and photos. So there was no element of surprise. Also from the list of

witnesses that Plaintiff Bowman was required to submit before the trial, it was quite apparent

both to the Court and to the Calfee attorneys that PlaintrffBowman was not calling any witnesses

in support of her documents. It is hardly a major leap in reasoning to conclude that Plaintiff

Bowman had no "knowledge of the law and legal procedures" and that she might need witnesses

to back-up offering these documents into evidence for the jury to consider.

Unfortunately, the photographs of her dog-bite injuries, the Police Report, and other

items were ruled inadmissible, based on various legal technicalities. To explain in some detail

just one instance that shows the unfairness of what happened, Plaintiff Bowman wanted to show

photographs to the jury of the dog bite and its severity. Her husband took these photographs. He

was there in court and testified about taking the photographs. But then the short litany of

authentication questions was never asked of him by Plaintiff Bowman and the authentication

answers were never recited by him. This authentication procedure is hardly rocket science and

does not take much time or effort, but Appellant Bowman lacked this "kiiowledge of the law and

legal procedures." These photographs were then excluded and the Jury never saw them.

Referring to the Court of Appeals presumption, was Mrs. Bowman really "presumed" to

know the various legal technicalities for presenting documents and photographs and getting these

authenticated at a trial? Would that not mean that the three years students spend in law school

really are useless for becoming lawyers? Wouldn't that mean they do not need all of the law

courses they take including on Evidence and such doctrines as the Hearsay Rule and all of its

exceptions? To ask these questions discloses how questionable the Court's presumption is.

We will present necessary legal arguments in the Proposition of Law Part of this

memorandum. But for now we would point out that many, many citizens enter our courts as pro

se litigants. If this Supreme Court of Ohio upholds the presumption of the Court of Appeals of

the Eighth Appellate District, then these pro se litigants when confronting opponents represented

by our well-trained lawyers are really "lambs being sent to a judicial slaughter."

Pardon this counsel's extreme wording, but consider if Mrs. Bowman had had attorney

representation. There were many ways an attorney could have gained the acceptance of these

doctunents and photographs including the advance use of admissions and stipulations. At trial,

even a novice lawyer would have known the "magic" questions and words to authenticate the

photographs. This documentary evidence could well have led to a different jury verdict and a

victory for Plaintiff Bowman rather than a loss. Is that the lesson our legal system teaches pro se

litigants, especially those of limited nleans, that without a lawyer they will have significant,

perhaps insurmountable hurdles, in gaining justice?

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This Supreme Court itself welcomes pro se litigants and provides an extensi.ve guide

entitled, "Filing an Appeal in the Supreme Cot2rt of Ohio: A pro se Guide," which lists on its

very first page the nanmes of our justices: "Maureen O'Connor, Chief Justice; Paul E. Pfeifer,

Terrence O'Donnell; Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French, and William

M. O'Neill, Justices." Is there any reality behind this Guide, especially when the case of the pro

se litigant has already been "spoiled" at the trial court level by the imposition. of the presumption

stated in Paragraph 15 of the Appellate Decision?

In conclusion, Appellant Bowman is asking this Supreme Court to consider the situation

confronting pro se litigants. Insure they are treated with a measure of fairness when they present

their cases in our many trial courts. Insure that good rules of evidence are not turned into traps

and obstacles for the unwary. This is certainly an issue of public and great general interest since

so many citizens do come before our courts as pro se litigants, often not as a matter of choice,

but because of financial indigence as well as a serious lack of legal aid and pro bono resources.

What this Supreme Court decides in this case-or fails to decide-will affect thousands and

thousands of Ohioans seelcing justice as pro se litigants.

Secondly, Appellant Bowman declares that her case involves substantial constitutional

issues, particularly concerning her right to a jury trial.

Before discussing this, we do want to deal with a side issue. Normally an appellant can

only argue issues before this Supreme Court which were raised in the original appeal. Thus an

argument could be made that Appellant Bowman cannot now raise a constitutional issue since

none were raised by her attorney in his appeal brief nor referred to in the Appellate decision.

However, it should first be noted that Appellant Bowman herself raised constitutional

issues at the 8th District Appellate level. In the Court of Appeals document initially filed for the

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Conferencing/Mediation I)epartment, Appellant Bowman wrote in her own. hand-vvriting, in

response to one of the items: "Attorney's for Defendants, for the suppress (all) documents to be

given to jury which violated my constitutional rights to present to court, by me being lay - pro

se." In other words, the legally educated attorneys for the defendant were able-unfairly and

unreasonably-to suppress her lay person efforts as a pro se litigant to present her evidence to

the court and jury. Th.us her constitutional rights for a jury were denied.

Furthernlore, Appellant Bowman believes that her constitutional rights should have been

raised by her Appeals Counsel. This failure of the Appeals Counsel to raise these Constitutional

questions constitutes "ineffective legal assistance" by that counsel for Appellant Bowman. Thus

she should not be foreclosed from raising and defending, before this Honorable Supreme Court,

her Constitutional right to a trial by jury.

One of Appellant Bowman's main rights was to have a jury of her peers who would see

and hear her evidence and then make a decision based on the evidence.

Instead, technical rules of evidence-including how to authenticate photographs in court

and how to use the Ilearsay Rule and its exceptions-were einployed by the Defendant lawyers

and allowed by the Court to keep away from the jury what Plaintiff Bowman considered relevant

and crucial evidence. What good is the constitutional right to a trial by jury if necessary

evidence is so easily hidden from the jury and not available for their consideration? Is the

historical and all-important right to a jury so easily undermined and circumvented?

Appellant Bowman rejects such negative views about the right to a jury trial. She wants

her constitutional right to a jury trial to be safeguarded. She wants a jury that will hear and

consider all the relevant and crucial evidence. Furthermore, she is affirming this right not only

for herself but for all pro se litigants who request jury trials. In conclusion, Appellant Bowman

urges this Supreme Court to accept jurisdiction of her appeal and allow her to defend her

constitutional right to a trial in wliich a jury receives all relevant and erucial evidence.

Lastly, we have now presented two bases for why this Court should accept jurisdiction of

Mrs. Ella Mae Bowman's Appeal. In our "Propositions of Law" we will present our proposal for

how pro se litigants should be treated in our courts. We will advocate that the Paragraph 15

Presumption of the Appellate Court decision needs to be modified. We will also provide a new

rule as a Proposition of Law as well as some examples of how it can be used.

STATEMENT OF THE CASE AND THE FACTS

"A dog bite case? In the Ohio Supreme Court?"

Yes, here is a dog bite case coming before this Honorable Court. However humble the

origins of this case, important issues are at stake including the treatment of all pro se litigants in

all Ohio courts and the protection of the constitutional right to a jury trial for pro se litigants.

Let's begin at the factual beginning of the story.

On August 1, 2010, Appellant Plaintiff Mrs. Ella Mae Bowman (the victim of the dog-

bite) was out campaigning for Republican candidates for office in her neighborhood. She was

seeking households that would allow her to place signs on the front laNvns for candidates, She

stopped at one house where Mrs. Debra Williams (hereinafter. "Defendant Williams") resided

and knocked at the front door. When no one answered, upon hearing sounds from the back of

the house, she went around to the backyard.

As she proceeded to the back, two dogs named Sam and Chilly-Willy (who were not

penned up, or enclosed, or leashed) charged Appellant Bowman ("Tri.al transcript" pp. 44-45,

hereinafter "Tr.'") The Appellant plaintiff stated to Defendant Williams that one of the dogs--

Sam-bit her on her hip. (See Tr. 45, 125, and 129.) The Defendant Williams tried

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unsuccessfully to call off the dogs. (Tr. 45.) Defendant Williams then tried to get both dogs to

go inside the house. (Tr. 45.) Defendant Williams next said Appellant Plaintiff Bow.man could

place one of her candidate signs in the front yard. (Tr. 45.) Appellant Bowman repeated again

that she had been bitten by one of the dogs and she left the premises. (Tr. 45.)

Later Appellant Bownnian discovered blood in her clothing and she became concerned

about the dog bite. The following day, August 2, 2010, she returned to the house of Defendant

Williams. She wanted to know about the dogs and their vaccinations. (Tr. 45.) It is well-known

that dogs may have rabies and that bites from such dogs can significantly affect the health of the

victim and can even cause death.

Before Defendant Williams could respond, Defendant Charles Holley arrived at the

premises and told Defendant Williams not to say anything. (Tr. 45-6.) Unable to discuss the

shot-situation of the dogs, Appellant Bowman left the premises and went to the East Cleveland

Police Department to make a police report. Afterward, she went to the Kaiser Permanente

Hospital to report she had been bitten by a dog and seek medical treatment. (Tr. 46 and 126.)

During the course of treatment, she was given a tetanus shot and other medications. (Tr. 126.)

The main concern in all of this was the condition of the two dogs, especially Sam.

Fortunately it eventually turned out the dogs did not have rabies. But Mrs. Bowman still

needed medical treatment for the bites. She also lost time from work. In her view she had

legitimate damages including the cost of the medical treatment and her lost work time as well as

pain and suffering.

Defendants Williams and Holley refused to cooperate, including providing any

information about possible insurance that Mrs. BoNvn-ian thought would take care of everything.

When the two defendants refused to compensate her injuries, Appellant Mrs. Bownian sued in

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the East Cleveland Municipal Court on April 4, 2011, for $10,000.00 in damages, both against

Mrs. Williams and Mr. Holley (especially since it was not clear who was the owner of the dogs

as well as who might be responsible for the dogs' behavior). She also sued those involved with

the ownership of the property. One of these parties based on their Motion for Judgment on the

Pleadings, .filed May 9, 2011, was later dismissed from the case. The second party was also

dismissed. Their involvement in the case is not relevant to this appeal.

The case seemed to drag on for some time, possibly because the East Cleveland Court

may have hoped that this matter could be resolved. After all, there was evidence of the dog bite.

There was a police report and records from Kaiser Permanente Hospital. But nothing was

settled.

Moreover, counsel from the very distinguished law f rm of Calfee Halter showed up in

the case, including two junior litigators and a senior litigator to confront this pro se party.

At the same time, much discovery was conducted by the parties including depositions.

Eventually trial briefs were required. Al1 throughout the discovery, Appellant Bowman

submitted her documents as well as the photographs to all involved.

A final Pretrial was set for October 25, 2011, and a bench trial was set for November 15,

2011. In the meantime discovery was still being conducted by the parties. Since all the

discovery had not yet been completed by the October 25th pretrial, the case was rescheduled for

trial on December 20, 2011, with trial briefs and exhibits and witness lists due for trial.

Some discovery problems and court scheduling led to a new date for trial, set for April

27, 2012. In the meantime on February 1, 2012, Mrs. Bowman asked for a jury trial and paid the

necessary advanced costs. On March 14, 2012, the Judge heard a Motion for Summary Judgment

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filed by the attonieys for the two Defendants. Appellant Mrs. Bowman fought that Motion and

won; and her case survived this legal challenge.

Despite efforts to resolve the case by both sides and due to a lack of jurors, trial had

again to be reset for June 1, 2012. The jury trial finally took place on June 1.

During the trial, Mrs. Bowman sought to present various documents and pliotographs

showing the dog bite for consideration as evidence by the jury. Defendants' Counsel

successfully used various evidence technicalities to keep out these evidentiary documents and the

photographs. The court in no way assisted this pro se party with the legal technicalities but

instead ruled the evidence inadmissible.

The jury returned a unanimous verdict against Appellant Bowman., finding that the

Defendants were not liable to her.

On June 23, 2012, Appellant Bowman timely filed an appeal with the Court of Appeals

for the &rn Appellate District. She did manage to obtain an attorney to help her with this Appeal.

He did file a Brief for her on November 9, 2012, raising Two Assignments of Error. The First

was that "The Trial Court erred in not allowing Plaintiff-Appellant to present sufficient evidence

which resulted in a verdict being rendered against Plaintiff-Appellant." The second Assignnient

of Error was that "The verdict rendered against Plaintiff-Appellant is against the manifest weight

of the evidence."

The Defendants' Counsel timely filed a Brief in opposition arguing in sununary that the

"Trial Court [had] properly exercise[d] its discretion in excluding documentaiv, hearsay

evidence which is not authenticated through a sponsoring witness or otherwise at trial" and that

"inadmissible evidence excluded at trial can [not] be used to challenge a unanimous jury verdict

as against the manifest weight of the evidence,"

9

The Appeal was heard by a three judge panel. Their unanimous decision denying the

Appeal was released and journali7ed on May 2, 2013. Appellant Bowman did file a"Motion for

Reconsideration" but this was denied in a Journal Entry of this Court of Appeals, dated May 29,

2013. Copies of the Appellate Court's decision are attached in the Appendix to this

Memorandum along with the Journal Entry denying Appellant Bowman's Motion for

Reconsideration. Appellant Bowman through her new Counsel Attorney Joseph Patrick

Meissner is filing this Memorandum of Jurisdiction along with the necessary accompanying

documents as required by the Rules of Practice of this Honorable Supreme Court of Ohio.

TWO PROPOSITIONS OF LAW

Appellant Bowman is presenting two propositions of law along with the legal support for

each of these Propositions.

As a preliminary matter, we note how often the Court of Appeals Decision for the Eighth

Appellate District as well as the Appellee Brief filed in that court refer to matters of discretion in

defense of various rulings by the Trial Court and that these are not to be overturned unless there

has been "an abuse of discretion.." The Appellant Bowman alleges there has been abuse of

discretion. This is not due, however, to any ill will on the part of the Trial Judge, but to the very

limitations now iniposed on pro se litigants by the Paragraph 15 presumption. Furthermore, the

Appellant argues that the deprivation of her right to a jury trial was caused by the very system of

justice itself which allowed legal and evidentiary technicalities to be used to obstruct her right to

a jury which could consider all of her relevant and substantial docurnentary evidence.

Let us now turn to the Appellant's Propositions of Law:

FIRST PROPOSITION. OF LAW: If initially in a proceeding pro se litigants arepresumed to have knowledge of the law and legal practice and are held to the same standards as

10

litigants represented by legal counsel, when it becomes apparent in the proceeding that this is nottrue, that the pro se litigant does not have the required legal knowledge and that relevant crucialevidence is being excluded based on technicalities, the trial court should so act in order thatevidence can be admitted when this can be done without bias or discrimination.

The approach of the Court of Appeals in its Paragraph 15 to pro se litigants contrasts

sharply with what other courts have declared about pro se litigation. 1lere are some examples:

In Estelle, Corrections Director, et al, v, Gam:ble 29 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d

251 (1976), the U.S. Supreme Court declared:

We now consider whether respondent's complaint states a cognizable 1983 claim. The handwrittenpro se document is to be liberally construed. As the Court unanimously held in Haines v. Kemer, 404 U.S.519 (1972), a pro se complaint, "however inartfully pleaded," must be held to "less stringent standards thanformal pleadings drafted by lawyers°" and can only be dismissed for failure to state a claim if it appears"beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him torelief." I.d.; at 520-521. quotin Conley v. Gibsons 355 U.S. 41, 45-46 (1957).

In Baldwin Courity Welcome Center v. Brown, 466 U.S. 147,104 S. Ct. 1723,80 L. Ed.

2d 196,52 U.S.L.W. 3751 (1984), the U.S. Supreme Court stated:

Rule 8(f) provides that 'pleadings shall be so construed as to do substantial justice.' We frequentlyhave stated that pro se pleadings are to be given a liberal construction.

Finally, here is Justice Hugo Black in Conley v. Gibson, 355 U.S. 41 at 48, 78 S.Ct. 99, 2L.Ed.2d 80 (1957)

'The Federal Rules rejects the approach that pleading is a game of skill in which one tnisstep bycounsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitatea proper decision on the merits.

But it is not just a matter of liberally construing pleadings. Here are further judicial

statements that a Court should actually assist the pro se litigants.

In Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987), the Court declared: "The trial judge

should inform a pro se litigant of the proper procedure for the action he or she is obviously

attempting to accomplish." In Plaskey v CIA, 953 F.2nd 25 (11991), the Court stated, "Court

errs if court dismisses pro se litigant without instructions of how pleadings are deficient and how

to repair pleadings."

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These judicial statements on pro se pleadings recognize that non-lawyers, however

brilliant and articulate, are not the same as lawyers in their skills and knowledge of the law.

Tllese statements display far more wisdom and a sense for what is real than Paragraph 15 of

Court of Appeals.

We have to assume that all of these documents and photographs are relevant on the

various issues of this case. Although the jury ruled unanimously for the defendant, we do not

know why the jury ruled as it did. There were the following main issues and questions to be

considered by the jury in reaching its decision:

1. Did the Plaintiff Mrs. Bowman suffer a bite or bites from a dog?2. Was the dog owner responsible for the behavior of the dogs, including any harm

the dogs caused to someorie?3. Did the victim Mrs. Bowman suffer darnages from the dog bites? How much

were those darnages for medical expenses, loss of wages, possible long-termdamages including need for therapy, andlor pain and suffering?

We do not know which of these issues the jury used for its decision. Also it could have

been more than one of these questions, or even all of them. We thus have to consider each of the

documents and photographs submitted by Plaintiff Bowman as relevant and crucial.

For purposes of this Memorandum, let us take a few examples of what the Trial Court

Judge excluded and thus prevented the jury from knowing about these.

First, let us consider the photographs which showed the actual dog bite into Mrs.

Bowman's thigh. These photographs were taken by an individual who was present and did testify

at the trial. fle swore he was the one who took the photos. The photographs would show the

jury that a bite actually happened, the seriousness of the dog bite, and that the Plaintiff Mrs.

Bowman was the one bittetl. These photographs could also help a jury determine what damages

might be appropriate for Mrs. Bowman's pain and suffering.

These photographs were not admitted because the plaintiff did not chant the right

terminology to authenticate that the photographs actually showed what was the true situation.

12

Here was an easy place where the Trial judge could have without any discrimination and bias

toward one side or the other insured that this relevant and important evidence did reach the jury.

A few objective questions from the trial judge could have allowed the witness to authenticate

these photographs and thus made them admissible. Moreover, the photographer was available

for any and all cross examination by counsel for the Defendant about the photographs. So there

would have been no discrimination against the defendant.

Second, a number of the documents were kept away from the Jury's consideration by the

Hearsay Rule. Most attorneys do not fully understand this Rule, let alone the average non-legal

person. The rule is designed to insure that testimony for the trier of facts, such as the jury,

comes from parties who are present in the court and can be cross-examined. If some item is

ruled hearsay and the actual custodian or maker of the document is not in court, then the Hearsay

Rule prevents its introduction as evidence. But there are many exceptions to the Hearsay Rule.

While the learned trial counsel of Calfee Halter may know all of these, it is grossly unfair for the

Court to place the burden for knowing these exceptions and how to use them on a pro se party.

Let us consider, for example, the Police Report. Here again the Trial Court with a little

effort could have insured that this necessary evidence was available for the jury's consideration.

While the document may not normally be used as evidence of the dog bite, it is evidence of the

plaintiff's actions very soon after the event which adds to the plaintiff s credibility. While there

were some markings on the Police Report, these seem easily explainable. The point is that a

very important piece of evidence was not admitted and that may have affected how the jury

viewed the case.

Consider also that Appellant Bowman had provided all of these documents in advance of

the trial to everyone. Under the Admission procedure, a party in advance of the trial provides

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copies of documents to other parties and asks them to admit these are proper, official, and

authentic. Ordinary people, including pro se parties, no matter how well educated they are,

might not know about using the Admission Procedure which is one of the tools of discovery.

Here again an observant court might have been helpful. Here is where a judge in a

pretrial conference could have gently asked the plaintiff if she intended to use these documents

and photos at the trial and then told her about the Admissions Discovery tool as well as a

possible need for authenticating witnesses at the trial.

The overall goal of a trial is to present the fact trier, such as a jury, with all the relevant

evidence. The trial judge in this case should have insured that important documents -%vere not

kept from the jury by the arbitrary application of legal technicalities.

SECONID PROPOSITION OF LAW:Both by the Constitutions of the U.S. and of Ohio, litigants including pro se parties have

a right to a jury trial. The court should insure that the right to a jury trial is protected and notfrustrated by the arbitrary use of evidentiary rules which are really mean to help parties and notbecome obstacles to the admission of relevant and crucial evidence for a jury's consideration.

Let us first consider whether this case involves a "substantial constitutional question."

Both the Constitution of the State of Ohio and the U.S. Constitution have provisions

guaranteeing the right to a jury trial in civil cases.

In Article 1, entitled Bill of Rights in the Ohio Constitution, there is this language:

Trial by, jury.§5 The right of trial by jury shall be inviolate, except that, in civil cases,

laws may be passed to authorize the rendering of a verdict by the concurrenceof not less than three-fourths of the jury.

In our U.S. Constitution in the Bill of Rights, the Fifth Amendment, provides in pertinent

part that one cannot "be deprived of life, liberty, or property, without due process of law..." The

14

Seventh Amendment, provides in pertinent part that "In suits at common law, where the value in

controversy shall exceed twenty dollars, the right to trial by jury shall be preserved..."

The issue is whether. Plaintiff Bowman was denied her U.S. Constitutional and Ohio

Constitutional riglits to a trial by jury when important relevant evidence was withlield from the

jury by unfair and unxeasonable conduct of the Trial Court Judge regarding adnxission of relevant

and crucial evidence The right to a jury trial should not become a game of "got-cha." As

Justice Black states the outcome of a trial should be a judgment on the merits. Here Appellant

Bowman suffered from the "manipulation" of a jury through the use of legal technicalities which

effectively "handcuffed" her jury. All the blocking of relevant and crucial documentary evidence

including the photographs resulted effectively in a denial of her right to a jury trial of her peers.

CONCLUSION

For the above stated reasons, the Honorable Court should accept jurisdiction.

Respectfully su

r

,Attor,&y Jose . , P. Meissner ,/022366Meissner an fAssociates, L 'rm5400 Detroif AvenueCleveland, Ohio 44102

...,^._.,.Tele: 1-216-273-

Email: sneri ^i vahoo.com

COUNSEL FOR AINTIFF-APPELLANT BOWMAN

15

CERTIFICATE OF SERVICE

I hereby verify that a copy of the foregoing Notice of Appeal was forwarded

by regular U.S. Mail, to Attorneys Alexander Reich and William E. Coughlin at

Calfee, Halter & Griswold, L.L.P., at the Calfee Building, 1405 East sixth Street -

4rh Floor, Cleveland, Ohio 44114, on this day of July, 2013.

Respectfully submitted,

/Attor^y ^5se^h^'. Meissne., 022366Mei sner Jand ssociates, a^v Finn5400 Detroit AvenueCleveland, Ohio 4410Tele: 1-216-273-73Email: meissner'^ `r h ' ^om

EL M^PLAINTIFF-APPELLANT

IN THE SUPREME COURT OF OHIO

ELLA MAE BOWMAN : Case No:

Plaintiff-Appellant : On Appeal from the Court of AppealsEight District

(Originally from the East ClevelandMunicipal Court)

County Court of AppealsEighth Appellate DistrictDisrrict.

Vs.

DEBBIE WILLIAMSAND

CHARLES IIOLLEYS

Defendant-Appellees C.A. Case No. CA-12-09863I

APPENDIX TO

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT ELLA MAE BOWMAN

Court of Appeals of Ohio, Eighth DistrictCounty of Cuyahoga

Andrea Rocco, Clerk of Courts

ELLA MAE BOWMAN

Appellant COA NO. LOWER COURT NO.98631 11 CVF 00358

EAST CLEVELAND MUNI.-vs-

DEBBIE WILLIAMS & CHARLES HOLLEY

Appellee

Date 05/29/13

MOTION NO. 464865

Journal Entry _

Motion by Appellant for reconsideration is denied.

P4

Presiding Judge FRANK D. CELEBREZZE, JR.,Concurs

Judge KATHLEEN ANN KEOUGH Concurs

RECEIVED FOR F1LlNG

MAY 2 8 ZOls,

Cuti 0 Y CLERK0F TH 0'i' C PPEALSF3y Deputy

ARY El EEN KILBANEJudge

c

LE

CC 90

Ebe 6tatY of ObCO, ss. T, Andrea g: Roccv, Clerk of theCOUNTY OF CUYAHOGA

Common Pleas Court within and for said County, and in whose custody the Files, Journalsrl^

and Records of said Court are required by the laws of the State of Ohio, to,---. _ .

certify that the foregoing is taken and copied from the Journal

of the proceedings of the Common Pleas Court within and for said (,'iiyahoga Cou

that the said fore o c y has been compared by me with the original entry on said

Journal °^ nd that the same is a correct transcript thereof.

^ln^ ^tittt^t^p ^l)ereof, I do hereunto subscribe my nanle

officially and affix the seal of said Court, at the C urt House in

the City of Cleveland, in said County, this

day of, , A.D. 20 ^

F P4co, Clerk of Courts

By iL4Deputy Clerk

17 5a oe,t. ^<,P ,a.

MAY0 2 Z013

^CnUrt of ppeat.5 of ObiAEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 98631

ELLA MAE BOWMAN

PLAINTIFF-APPELLANT

vs.

DEBBIE WILLIAMS AND CHARLES HOLLEY

DEFENDANTS-APPELLEES

JUDGMENT:AFFIRMED

Civil Appeal from theEast Cleveland Municipal Court

Case No. 11 CVF 00358

BEFORE: Kilbane, J.; Celebrezze, P.J., and Keough, J.

RELEASED AND JOURNALIZED: May 2, 2013

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ATTORNEY FOR APPELLANT

Samuel R. Smith, II75 Public SquareSuite 1111Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

Alexander B. ReichWilliam E. CoughlinCalfee, Halter & Griswold, L.L.P.The Calfee Building1405 E. Sixth Street - 4th FloorCleveland, Ohio 44114

-1.-

FILED AND JOURNALIZEDPER APP.R, 22(C)

MAY 0 '2 2013

CUYAHOGA C 9UNT`r` CLERKOF TH C^T OF APPEALSBy Deputy

MARY EILEEN KILBANE, J,:

{T 1} Pro se plaintiff-appellant, Ella Mae Bowman ("Bowman"), appeals

from the defense verdict in her lawsuit against defendants-appellees, Debra,

Williams ("Williams") and Charles Holley ("Holley") (collectively referred to as

"defendants") for damages from an alleged dog bite. For the reasons set forth

below, we affirm.

{T2) On April 4, 2011, Bowman filed this action against defendants and

their insurers, alleging that on August 1, 2010, she went to Williams's home

and was bitten by a dog. Defendants denied liability, and the matter proceeded

to a jury trial on June 1, 2012.

{¶31 Bowman testified that she went to Williams's home to inquire about

placing a campaign sign in her yard. As she stood at the side door, she noticed

two dogs loose in the backyard, one of which charged her. Williams called for

the dogs and tried to get them inside. At that point, Bowman testified that she

asked if she could place the sign in the yard, and Williams agreed. During that

brief encounter with Williams, Bowman stated that she was bitten on her hip.

{¶4} Bowman further testified that the next day she observed blood on

her clothing, so she returned to Williams's house to determine whether the dogs

had been vaccinated. As Bowman was speaking with Williams, Holley

instructed Williams not to give her any information. Bowman then filed a

police report with the city of. East Cleveland, and her husband took her to

Kaiser Permanente for treatment.

{¶5} At the conclusion of Bowman's testimony, the court asked if she had

any exhibits. Bowman indicated that she had various documents that were

appended to her trial brief, including pictures of her injuries, medical records,

police reports, copies of journal entries from a dismissed criminal prosecution

against Holley for violating East Cleveland Codified Ordinances Section

505.03,' pictures of dogs allegedly kept at Williams's property, records

concerning the quarantine of the dogs, the county department of health dog bite

records pertaining to this matter, and copies of correspondence that she sent to

the defendants regarding their insurance.

J¶6} The defendants stipulated that each owns one of the dogs kept at

Williams's home, and they waived any objection to Bowman's photographs of

the dogs. The defendants objected to the police report, noting that it contained

handwritten marks, crossed-out words, and the investigating officer's hearsay

statements. Defendants also objected to docket entries concerning the criminal

charge against Holley, the quarantine records, and Bowman's hospital bills,

complaining that these items were not authenticated by the custodians of those

particular records.

'This ordinance provides that no person "shall allow any dog to disturb the peaceand quiet of any person by barking, yelping, biting or howling."

{¶7} Defendants also objected to Bowman's photographs of her injuries,

complaining that they were taken by her husband, and that the photographs

had not been authenticated. Over the objection of the defense, the trial court

permitted Bowman to call her husband as a witness to testify regarding the

photographs. The court also permitted her to resume her testimony.

{¶8} Bowman further testified that she was seen by a doctor in the

emergency room at Kaiser Permanente, but she could not provide him with

information concerning the dogs. According to her testimony, the doctor gave

her a tetanus shot, another injection for infection control, a prescription, and

then instructed her on the care of her wound. She stated that the damages

incurred as a result of the dog bite totaled $3,797.47. She admitted on cross-

examination, however, that the majority of this sum related to legal costs and

expenses.

{¶9} Bowman's husband ("Fred") testified that on the day after his wife

went to Williams's house, he observed swelling and scarring on her hip and took

her to the hospital. He also testified that he photographed her injuries.

I¶1Q} Bowman next called Holley upon cross-examination. Holley stated ^

that on August 2, 2010, Bowman came to Williams's home to speak to her about

the dog bite from the previous day. She showed Holley a dress with tiny holes

in it and told him that she had been bitten on her hip.

{¶ 21} Bowman next called Williams upon cross-e:xamination. Williams

stated that she was in her backyard with the two dogs when Bowman

approached her. When Bowman entered the backyard, one of the dogs

remained in the backyard and the other dog ran toward her but did not bite her.

Williams testified that this dog has received its required immunizations.

{T 12} The defendants elected to present evidence. Williams testified that

after the dog ran toward Bowman, she asked if she was okay. Bowman stated

that she was fine. The next day, however, Bowman returned demanding

insurance information and claiming that the dog had bitten her on the hip.

Williams also testified that the dogs were not vicious or dangerous and had

never bitten anyone in the past.

{¶13} The matter was submitted to the jury that found in favor of

defendants. Bowman now appeals and assigns two errors for our review.

Assignment of Error One

The trial court erred in not allowing Plaintiff-Appellant to presentsufficient evidence which resulted in a verdict being renderedagainst Plaintiff * * *.

{¶14} Within this assignment of error, Bowman argues that the trial

court erred in refusing to permit her to admit her medical records, her medical

bills, the county animal bite report pertaining to this matter, the police report,

court documents pertaining to the criminal charges filed against Holley, the

animal quarantine report pertaining to this matter, Fred's written statement,

and pictures of her injuries.

}¶ 15} As an initial matter, we note that pro se litigants are presumed to

have knowledge of the law and legal procedures and are held to the same

standards as litigants who are represented by counsel. State u. Bandarapalli,

8th Dist. No. 96319, 2011-Ohio-61:58.

{¶ 16} Additionally, we note that the decision to admit or exclude evidence

rests within the trial court's sound discretion. State v. McGuire, 80 Ohio St.3d

390, 400-401,1.997-Ohio-335, 686 N.E.2d 1112. Thus, a reviewing court will not

reverse the trial court's decision absent an abuse of discretion. State v.

Apanovitch, 33 Ohio St.3d 19, 25, 514 N.E.2d 394 (1987). The term "abuse of

discretion" implies that the court's attitude is unreasonable, unconscionable, or

arbitrary. State v. Adams, 62 Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980).

{¶17} As, to the medical records, veterinary records, county dog bite

report, police report, and record of the charges filed against Holley, we note that

it is well established that proving the contents of a writing presents problems

with hearsay, authentication, and the best evidence rule. SFJV v. Ream, 187

Ohio App.3d 715, 2010-Ohio-1615, 933 N.E.2d 819, ¶ 46-48 (2d Dist.), citing

State v. Carter, 4th Dist. No. 99 CA 2479, 2000 Ohio App. LEXIS 4558 (Sep. 26,

2000).

{¶18} Evid.R. 801(C) defines hearsay as a°`statement, other than one

made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted." Pursuant to Evid.R. 802,

hearsay is generally inadmissible u nless the declaration is subject to an

exception or exclusion to the hearsay rule. Fackelman U. Micronix, 8th Dist, No.

98320, 2012-Ohio-5513, ¶ 17. The relevant exceptions to the hearsay rule

include business records and public records set forth in Evid.R. 803(6), (8).

These rules describe hearsay exceptions for the following:

{¶19} Evid.R. 803(6):

A memorandum, rep.ort,.record, or data compilation, in any form,of acts, events, or conditions, made at or near the time by, or frominformation transmitted by, a person with knowledge, if kept in thecourse of a regularly conducted business activity, and if it was theregular practice of that business activity to make thememorandum, report, record, or data compilation, all as shown bythe testimony of the custodian or other qualified witness or asprovided by Rule 901 (B)(1®), unless the source of information or themethod or circumstances of preparation indicate lack oftrustworthiness. * * *

Id. (Emphasis added.)

{¶20} Evid.R. 803(8):

Records, reports, statements, or data compilations, in any form, ofpublic offices or agencies, setting forth (a) the activities of the officeor agency, or (b) matters observed pursuant to duty imposed by lawas to which matters there was a duty to report, excluding, however,in criminal cases matters observed by police officers and other lawenforcement personnel, unless offered by defendant, unless thesources of information or other circumstances indicate lack oftrustworthiness.

Id. (Ezuph.asis added.)

{¶21} The requirement of authentication or identification as a condition

precedent to admissibility is satisfied by introduci.n.g "evidence sufficient to

support a finding that the matter in question is what its proponent claims."

Evid.R. 901(A); SFJV, 187 Ohio App.3d 715, 2010-Ohio-1615, 933 N.E.2d 819,

citing State v. Moshos, 12th Dist. No. CA2009-06-008, 2010-Ohio-735, ¶ 11.

{¶22} The authentication of hospital and medical records is governed by

R.C. 2317.422, which provides in relevant part:

[I]n lieu of the testimony in open court of their custodian, personwho made them, or person under whose supervision they weremade, may be qualified as authentic evidence if any such personendorses thereon his verified certification identifying such records,giving the mode and time of their preparation, and stating thatthey were prepared in the usual course of the business of theinstitution.

{^23$ Pursuant to Evid.R. 901(B)(7), public records or reports are

authenticated through extrinsic evidence that the writing "is from the public

office where items of this nature are kept." Seringetti Constr. Co. v, Cincinnati,

51 Ohio App.3d 1, 9-10, 553 N.E.2d 1371 (lst Dist.1988). Evid.R. 902(4)

provides that a public record is self-authenticating if it has been "certified as

correct by the custodian or other person authorized to make the certification[.]"

{¶24} Applying these principles, we cannot conclude that the trial court

abused its discretion in denying Bowman's request to admit the medical records

because she did not present any authentication for the records in accordance

with R.C. 2317.422. The records were not endorsed as such and the custodian

of records did not testify.

{¶25} Similarly, the county dog bite records and the East Cleveland

Municipal Court records of the charges against Holley were not authenticated

in accordance with Evid.R. 901(B)(7) or Evid.R. 902(4). The documents

pertaining to the quarantine of Holly's dog were likewise not authenticated.

{¶2fa} The police report was not authenticated in accordance with Evid.R.

901(B)(7) or Evid.R. 902(4), and also contained inadmissible hearsay under

Evid.R. 803(8).

{¶27} Therefore, the trial court acted within its discretion in refusing to

admit these exhibits into evidence.

{¶28) With regard to the trial court's refusal to admit the affidavit of

Fred, we note that in accordance with the best evidence rule, the best'evidence

is the testimony of an affiant, rather than the affiant's affidavit. Burchfietd v.

McMillian-Ferguson, lOth Dist. No. 10A1°'-623, 2011-Ohio-2486, ¶ 25. The court

explained:

Ohio courts have held that"[a]ffidavits are not generally admissibleover objection at the trial to establish facts material to the issuebeing tried." Natl. City Bank u. Natl. City Window Cleaning Co.(1963), 174 Ohio St. 510, 516, 190 N.E.2d 437. Because an affidavitis not subject to cross-examination, standing alone, it isinadmissible at trial. Midstate Educators Credit Union, Inc. v.Werner, 175 Ohio App.3d 288, 2008-Ohio-641, 886 N.E.2d 893.Also, a trial court is unable to adjudge the credibility of an affiantas it would a live witness.

{¶29} Therefore, the trial court did not err in refusing to admit this

exhibit.

{¶30} As to the photographs, the admission of photographic evidence is

left to the discretion of the trial court. State v. Azvkal, 76 Ohio St.3d 324, 333,

667 N.E.2d 960 (1996). A proper foundation is required in which there must be

testimony that the photograph is a fair and accurate representation of that

which it is purported to be. State U. Hill, 12 Ohio St.2d 88, 90, 232 N.E.2d 394

(1967). In this matter, there was no such testimony, therefore, we find no abuse

of discretion.

{¶31} As to Bowman's remaining claims, we note that despite her

contention that the trial court refused to admit photos of the dogs kept at

Williams's home, the record reflects that the trial court did in fact admit these

photos. Therefore, this claim lacks support in the record. Bowman also

contends that the court erred in refusing to admit her medical bills, but the

record does not support her claim that they were offered into evidence.

{¶32} In accordance with the foregoing, the first assignment of error is

without merit.

M33} Bowman's second assignment of error states:

The verdict rendered against Plaintiff-Appellant is against themanifest weight of the evidence.

{T34} The determination of credibility of testimony and evidence must not

be encroached upon by a reviewing tribunal. Seasons Coal Co. Inc. v. Cleveland,

10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Further, an appellate court

should not substitute its judgment for that of the trial court when there exists,

as in this case, competent and credible evidence supporting the findings of fact

and conclusions of law rendered by the trial judge. Id.

(¶35} In this matter, the record does contain competent and credible

evidence that a dog charged at Bowman while she was on Williams's property,

but it did not bite her. Further, Bowman stated at that time that she was okay.

Therefore, we cannot overturn the credibility determination made in this matter

and cannot substitute our judgment for that of the jury.

I¶36) The second assignment of error is without merit.

{¶37} Judgment affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the East Cleveland

Municipal Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

MARY EI . EEN KILBANE, JUDGE

FRANK. D. CELEBREZZE, JR., P.J., andKATHLEEN ANN KEOUGH, J., CONCUR

CC 97 ! 2783

sbQ iktate Df (IDbto' I, GERALD E. FUERST, Clerk of the Court ofCuyahoga County.

Appeals within and for said County, and in whose custody the files, Journals and records of said Court are

required by the laws of the State of Ohio, to be, kept, hereby certify that the foregoing is taken and copied

from the Journal entrey daeed on 5l2/2013 CA 28531

of the proceedings of the Court of Appeals within and for said Cuyahoga County, and that the said foregoing

copy has been compared by me with the original entry on said 7ournai entry dated on 5/212013

48631 and that the same is correct transcript thereof.

.31r M¢gtfntottp lVljereuti, I do hereunto subscribe my name officially,

and affix the seal of said court, at the Court House in the City of

Cleveland, in said County, this 3rd

day of MAY A.D. 20 13^.

G ^E fi Clerk of Cottrts

By Deputy Clerk

e -

i` .

CC 90

^^^e '-%tatf 0f-bt0, } ss. I, Andrea F. Rocco, Clerk of the

COUNTY OF CUYAtIOGA

Common Pleas Court within and for said County, and in whose custody the Files,lournals

and Records of said Court are required by the laws of the State of Ohio, tQ be kept, hereby

certify that the foregoing is taken and copied from the Journal

of the proceedings of the Cominon Pleas Court within and for said Cuyahoga County, and

that the said foregoing copy has been compared by me with the original entry on said

Journal 4-^ arid that the same is a correct transcript thereof.

fix^ ^eMirnonp IVocreof, I do hereunto subscribe my name

officially and affix the seal of said Court, at the Court House in

the City of ]eveland, in said County, this

of, A.D. 2(1daY

^ Andrea ^: ' , erk of Courts

ByClerk

^^t^'°1758 11<4