JONATHAN STEINBERG

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IN THE SUPREME COURT OF OHIO(on a Motion brought in theMAHONING COUNTY COURT OF COMMON PLEAS)

VS.

Case No: 2013 1036

RELATOR

Judge JOHN M DURKIN

RESPONDENT

--------------------------------------------------- --------------------------------------------------

MOTION TO STRIKE AND

VERIFIED MEMORANDUM IN OPPOSITION TOMOTION TO DISMISS in PETITION FOR WRIT of

MANDAMI..TS and PROCEDENDO------------------------------------------------------------------------

Jonathan Steinberg200 East 90th St

New York NY 10128212 750 9777

E-Mail: jurist@internationalawyer.org

[PlaintiffThomas Zebrasky, c/o William Ramage #0088734822 Market St, Suite 220, Boardman, Ohio 44512]

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IN THE SUPREME COURT OF OHIO(on a Motion brought in the MAHONING COUNTY COURT OF COMMON PLEAS)

JONATHAN S'I'EINBERG )200E90th St )New York NY 10128 )

)RELATOR )

VS.

)Judge JOHN M DURKIN120 Market St )Youngsown Ohio 44503 )

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RESPONDENT )

)

1.

2.

Case No: 2013 1036

MOTION/AFFIDAVIT IN SUPPORT

Now comes the relator Jonathan Steinberg and pursuant to The Ohio

Rules of Civil Procedure, Rule 12 (A) and Rule 12 (B) requests that the

Court strike the Respondent's Motion to Dismiss for failure to state a

claim upon which the relief set out in the Respondent's said Motion can

be granted. The Relator requests in the alternative an extension of time

to file opposition papers to the said Respondent's Motion, the same being

embodied in the facts and matters set out in this Motion

The Relator has received, late and at the wrong stage in the proceedings,

(and therefore it ought properly to be struck out, see para 7 et seq infra),

a motion to dismiss the instant Petition on procedural grounds. There is

no substantive opposition to the petition where, if appropriate, res

judicata should have been raised.

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3. This Motion to dismiss the Petition which the relator has received late is

stated to be on res judicata grounds, has been served late in that it was

not served by a method which guaranteed service out of State on the

Relator by a date certain, is entirely misconceived and confuses the

distinction between substance and procedure on a point never argued

before by a lawyer in any court: by arguing res judicata, the Respondent

seems to be arguing that where there has been a procedural dismissal of

an action and where there was no judgment (and in effect the substance

of the action was never adjudicated) precisely because of that procedural

dismissal, the substance of that action can not be argued thereafter before

any court.

4. In order to assert res judicata, the party alleging it must show that a final

judgment on the merits of the case is filed with the court administrator; it is

formally known as the "judgment on the merits"; it has to have been entered

in an earlier action.

5. No such judgment was entered in 2013 0375 by this court, it is respectfully

submitted, because the Court accepted that there was a procedural defect, -

the failure to verify the petition properly. With no judgment, there is no

evidence here of any decision on the merits.

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6. Simply asserting that a case has been heard is not the same as asserting that

there is res judicata: The party asserting res judicata, having introduced a final

judgment on the nierits, must then show that the decision in the first petition

was conclusive as to the matters in the second petition. The Respondent

cannot do that with no judgment and when he simply asserted a procedural

irregularity and the court did not deal any legal argument he raised nor with

the merits of the petition. See generally Ex-Im Bank qf U.S. v. Advanced

Polymer Sciences, Inc., 2009 U.S. Dist. LEXIS 18855 (N.D. Ohio Mar. 11,

2009) (applying Ohio law).

7. Because res judicata is envisaged to be based on a judgment, it is a defense to

a petition, and res judicata defenses are not amongst those defenses

specifically enumerated in Civ. R.12(B) that can be made by motion rather

than responsive pleading. See generally State ex rel. Freeman v. Morris

(1991), 62 Ohio St.3d 107, 109, 579 N.E.2d 702; Shaper v. Tracy (1995), 73

Ohio St.3d 1211,1212, 654 N.E.2d 1268.

8. Additionally, Civ.R. 8(C) requires res judicata defenses to be set forth in

pleadings, as follows:

"In pleading to a preceding pleading, a party shall set forthaffirmatively accord and satisfaction, arbitration and award,assumption of risk, contributory negligence, discharge in bankruptcy,

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duress, estoppel, failure of consideration, want of consideration for anegotiable instrument, fraud, illegality, injury by fellow servant,laches, license, payment, release, res judieata, statute of frauds,statute of limitations, waiver, and any other matter constituting anavoidance or affirmative defense." Ramsey v. Rutherford, 2008-Ohio-124 (adding emphasis).

Because it relies wholly on a prior judgment, res judicata is an affirmative

defense not properly decided in a motion to dismiss. See generally Cooper v.

Highland Cty. Bd. of Commrs, (May 13, 2002), Highland App. No. OlCA15,

2002-Ohio-2353, at ^11; Hamrick v. Daimler-Chrysler Motors (June 18,

2003), Lorain App. No. 02CA008191, 2003-Ohio-3150, at T7; Charles

Gruenspan Co. v. Thompson (July 10, 2003), Cuyahoga App. No. 80748,

2003-Ohio-3641, at ^(10. Clearly, Civ.R. 8 and 12(B) require res judicata

defenses to be raised in a pleading; here however, despite making reference to

a judgment on the merits in his Motion without exhibiting it to the Motion

(because it does not exist) the Respondent is unable to point to any

adjudication of the facts and matters raised in this petition in any affirmative

defense precisely because there was no judgment. So the Respondent is forced

to raise it in a motion. He ought not to be allowed to do this, especially in

favour of a Plaintiff in the underlying case who didn't oppose the motion in the

lower court in issue and who is acting clearly in. abuse of process.

9. The concept of res judicata relies on courts establishing the Law of the

Case which cannot be challenged in later cases.l-lowever, this law is not of

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conclusive application, most obviously where the prior decision did not

establish the law of the case: The doctrine of the law of the case provides

that the decision of a reviewing court in a case remains the law of that case for

all subsequent proceedings at both the trial court and reviewing levels. Nolan

v. Nolan, 11 Ohio St.3d at 3. The doctrine is considered to be a rule of

practice rather than a binding rule of substantive law and will not be applied

so as to achieve unjust results. This rule of practice "is necessary to ensure

consistency of results in a case, to avoid endless litigation by settling the

issues, and to preserve the structure of superior and inferior courts as designed

by the Ohio Constitution." Id., citing State ex rel. Potain v. Mathews (1979),

59 Ohio St.2d 29, 32. Res judicata is thus entirely dependent on the record in

a case in order that a subsequent court may see whether points raised in earlier

proceedings were decided on the record. Here, the Respondent tries to take

advantage of the failure to file a record of the judgment in the prior case but

with no judgment (because the Court dismissed a case on procedural grounds),

there can be no res judicata State v. McNeil (2000), 137 Ohio App. 3d 34 -- A

trial court may not dismiss claims based on matters beyond the record

without a review of the actual record.

10. It is true to say that the petition known as Case Number 2013 0375 was

filed in this case and that it was filed without a verification. The reason

for this was because the Relator found no reference to the need for a

verification in the Ohio Rules of Civil Procedure and on requesting

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procedural information for filing a Petition of the Supreme Court Clerk's

Office, no reference was ever made to the need to verify a Petition. The

Clerk's Office took in and processed the 2013 0375 petition and checked

to ensure it was procedurally correct and questioned the fact that no

address appeared on the face for the Respondent. For that reason, the

Relator had to change the face page from New York in order (sic) to

render it procedurally correct. However in processing a petition, the

Clerks were not aware of the need to verify a petition either and

submitted it for the attention of the Court and the Respondent.

11. Nevertheless it is acknowledged that verification is a sine qua non to

moving ahead with a petition and a petition filed without one is

procedurally defective; and in default of any substantive answer to the

points put in the Petition, the Respondent successfully challenged the

2013 0375 petition on the grounds that the Supreme Court has struck out

petitions which have been submitted without verification. The 2013

0375 Petition was therefore dismissed without a judgment and it is not

clear whether any judge ever considered any of the points raised in it (see

State v. Pelfrey, 112 Ohio St. 3d 422, 2007-ghio-256- holding, in a

criminal action, that verdict forms must clearly establish the degree of the

offense and proving that res judicata cannot apply to a procedural strike

out entered without a judgment). That procedural dismissal without a

judgment on the merits can hardly give rise to any question of res

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judicata on the substantive issues raised in it. See also Grava v. Parkman

Twp., 73 Ohio St.3d 379, 381, 1995-Ohio-331, 653 N.E.2d 226 where the

Ohio Supreme Court set forth the standard for res judicata of a claim as

follows: "[A] valid, final judgment rendered upon the merits bars all

subsequent actions". See also Norwood v. McDonald, 142 Ohio St. 299,

305, 52 N.E.2d 67, 71 (1943) also referring to the need for "an existing

final judgment rendered upon the merits". Where there is no judgment

because the respondent in the prior action moved on a procedural ground

and the Court gave no indication whatsoever that it was ruling on the

merits, there can be no judgment rendered on the merits.

12. This Petition must now be adjudicated on the facts and law recited in it:

The Ohio Rules of Civil Procedure set out precisely what the obligations

are on a judge in filing a judgment on an unopposed motion in the lower

court.

13. All such requirements are clearly set out in the petition and the

Respondent has never even begun to address the exercise of discretion in

the judge to deny a motion: As clearly set out in the Petition, the wording

of the Rule specifically states that where a motion is unopposed, the judge

SHALL sign judgment. It does not state `in his discretion may sign

judgment". The Respondent has simply said that the operative rule only

applies to motions for partial summary judgment (there is no such

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distinction in the rule itself and none in logic) and that he was "within his

discretion" in denying the motion, where the Rule allows no such

discretion. It is respectfully submitted that where the Rule carefully

doesn't use the word MAY, the words "if appropriate" can only refer to

the request being procedurally appropriate as opposed to substantively

appropriate. Thus if a motion accidentally requested a criminal remedy or

specific performance of a contract in a tort claim or requested punitive

damages where such relief cannot be awarded, the Rule provides for it

not to be within the power of the court to grant it (whether opposed or

not) because it would not be appropriate. But in Petition Number 2013

0375, this honourable Court did not even rule on this point. It is now of

clear importance to the administration of law in the State of Ohio that the

Supreme Court adjudicate a Petition in which a lower court judge

assumes discretion to avoid proper adjudication according to the rules [of

an unopposed motion] where those rules afford no such discretion.

14. It is also clear that the Respondent's judgment simply denying the relief

requested and saying that `triable issues arise' (especially where the

Plaintiff himself in not being able to oppose the motion doesn't seem to

agree!) without stating what they are is not in compliance with the Ohio

Rules of Civil Procedure; the Rule affords no such discretion. It sets out in

clear terms that the judge has to write a judgment stating the facts in

issue, the facts not in issue and the legal arguments in issue between the

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parties so that the case may move forward to trial. This is especially

relevant in an abuse of process case such as this one where the attorney

for the plaintiff has been filing papers for nearly three years which

disclose no conceivable cause of action on his client's behalf. However as

the Respondent cannot address this issue, he is forced to try to prevent it

being considered by this Court by (again) moving on procedural grounds

without consideration of the merits of the Petition.

15. The case as presently formulated is inchoate and cannot move forward to

trial precisely because

a. Judge Durkin failed to rule on abuse of process and

b. (despite a wait of over a half a year and on an unopposed petition) has

failed or refused to define any issues which arise in this case or law

and

c. the Plaintiff states a refusal to respond to interrogatories and

refuses to give discovery of any paperwork in support of his case, -

flouting the specific directions of the Mahoning County Court of

Common Pleas that he respond to interrogatories and disclose his

evidence, if any, supporting his case.

16. For the reasons set out herein, because the Relator did not receive notice

of the motion to dismiss in good time, because the Respondent has raised

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it at the wrong stage in the proceedings and because of the total lack of

merit to the motion to dismiss (which may be why the Respondent's

motion referring to judgments on merits that don't exist is unsupported

by any sworn affidavit), the motion to dismiss ought properly to be struck

and/or denied and, where res judicata ought properly to have been

raised, if at all, in opposition to the petition, in default of opposition, the

Petition granted.

The Relator further hereby moves, should the same be necessary, for a stay of

proceedings before the Mahoning County Court of Common Pleas pending

resolution of this petition.

State of New York )SS

County of New York )

VFRIFICATION AFFIDA'VIT IN OPPOSITION

I am the Petitioner in the above-captioned matter. I am familiar with the contents ofthe Petition herein and the opposition to the Motion to Dismiss. The informationsupplied therein is based on my own, supplied and/or compiled from availabledocuments and is therefore provided as required by law. The information containedin the foregoing document is true, except as to the matters which were provided byother agents or compiled from available documents, including all contentions andopinions, and, as to those matters, I am informed and believe that they ar,e true.

espectfully submittedJonathan Steinberg

200 East 90th StS}ji' PA A SHC:TY

S:otary Pu tic - State of Nevd York New York NY 10128NO. O1Sk;62111ES 212 75Q 9777

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CERTIFICATE OF SERVICEI hereby swear that this 1St day of August 2013, the accompanying affidavit inopposition to the motion to dismiss was served on the Respondents by electronicmeans directed to the address set out on the Motion to Dismiss, Paul Gains, theProsecuting Attorney, Civil Division gbrickerC«@rnahoni_nncountyoh.gov and bydepositing the same in a prepaid envelope addressed to the attorney for theRespondent, the Prosecuting Attorney, Civil Division at 21 West Boardman St Sth Fl,Youngstown Ohio 44503

SN;t.PA A aNETTYp Yo[k

Notary Pu^^1o - State of N^wNfl. 0 1 S41 624 '1F8

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athan Steinberg200 East 90th St

New York NY 10128212 750 9777

E-Mail: jurist@internationalawyrorg

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