IN THE SUPREME COURT OF OHIO, COLUMBUS, OHIO

16 ® 3WilmaJean Hayes ®O^

--Appeal from

220 Airport Road Muskingum County CourtZanesville, OH 43701 of Appeals, Fifth District

Appellant/Plaintiff

Vs

D. Michael Haddox, et al Court ofAppeals27 North Fifth Street Case No. CT2007-0071Suite 201, P.O. Box 189 CH2007-0189Zanesville, OH 43702-0189

Appe)lee/Defendant

MEMORANDUM of SUPPORT

WilmaJean Hayes220 Airport RoadZanesville, OH 43701(740) 454-3905(740) 704-7382

PRO SE, Appellant WilmaJean Hayes

Attorney David HerdJohn C. Nemeth & Associates21 East Frankfort StreetColumbus, Ohio 43206-1069(614) 443-4866

Counsel for Appellee, D. Michael Haddox, et al

'OLE -0'

flliMCLERK OF COURT

StkRRkME^^

1

TABLE OF CONTENTS

Page

Explanation of why case deserves appeal 2

Statement of Case and Facts 3

Argument in Support 4

Conclusion 7

Certificate of Service 9

Appendix 10

Opinion of Muskingum County Court of AppealsJune 30, 2008

Judgment Entry of Muskingum County Court of AppealsJune 30, 2008

Explanation for the Notice of Appeal to the Supreme Court

The purpose of the filing of the Notice of Appeal is to validate the importance of following

rules and procedures for legal processes in domestic relations, civil cases and appeals. Appellant

believed and provided extensive documentation to prove Appellee performed a legal duty with

fraudulent misrepresentation and misconduct, not negligence/malpractice. Appellant provided

pertinent relevancy required to process the law by proceeding and following rules and

procedures, Ohio Revised Code and verification with case laws. When legal servants perform

their duty with misconduct, falsification, and fraudulent misrepresentation, the client loses

equality and constitutional rights guaranteed by the very laws and rules attorneys have sworn to

protect and follow. We live in the twenty-first century were women and men have equal rights

protected by the law. The time period is not synonymous with the 60's and 70's; women have

been granted equal civil rights and should be guarded by those rights. The mannerism and

method of conducting the domestic case and the civil case caused harmful results in this

Appellant. Within the cases, the Appellee performed his duties creating inequality and

inequity during a domestic case to the benefit of the opposing party. An act not permitted

by the Ohio Domestic Laws and when a legal servant utilizes fraudulent misrepresentation,

miscalculations, and falsifying pertinent documentation creating an inequality that servant has

created misconduct not negligence; because the attorney was aware of the legal requirements and

pertinent information which would present a fair, unprejudiced, and justifiable result. A seasoned

attorney who has practiced law for over 20 years and has a goal/plan to be a judge is not going to

commit malpractice; however, an attorney can utilize misconduct, fraudulent misrepresentation

of legal documents and marital assets and debts; while, to follow the lead of the opposing party

in creating an imbalance and inequalities during a domestic case; thus, the purpose of this Notice

of Appeal. The decisions of the Courts continue to follow through with an injustice and

prejudice.

2

Statement of Case and Facts

The case comes forth from the Fifth District Court of Appeals and Muskingum County

Common Pleas Court for a civil case whereas Appellant discovered fraudulent misrepresentation

by the Appellee during a Domestic Case for divorce. The Appellant learned during a municipal

case for attorney fees and from the case file about the misconduct performed by the Appellee.

The municipal judge stated during the hearing the case was for fees and not malpractice. The

Appellee listed excessive fees for the domestic case. Appellee presented a handwritten 8 x 11 %

yellow legal pad document of a marital balance sheet which was in question by Appellant for

creating two marital balance sheet. Also, the document was not date-stamped nor could

Appellant retrieve the document again from the municipal court judge for the case. The

document was requested during the civil case but the distinct descriptive document was not

received. Appellant discovered many more discrepancies in the domestic case which initiated the

civil action.

The Appellee was fired because of a factor concerning Shared Parenting. In April, 2002, when

Appellant received a divorce decree to sign; shared parenting was on the decree. However, the

opposing party stated "there is no shared parenting". Appellant discussed this with Appellee in

May, 2002 and at that time fired him because "shared parenting" was of the utmost importance

to the divorce. The proposals delivered on February 13`h, 2002 included the "father as the

residential parent". Appellant attempted to retrieve the court reporter's original transcripts and

documentation of what was read into the court record by the opposing party's attomey; but was

denied by the magistrate. According to procedure, a cooperative time, place, etc., should be

acquired to view the original transcripts, but Appellant was denied. Appellant believes the denial

was a violation of my constitutional rights and parenting rights.

Appellant filed a grievance with the Disciplinary Counsel, giving reasons to investigate the

Appellee. Such as, following domestic violence rules, shared parenting rights, and the equal

3

division of the profit sharing plan. The response was file malpractice. Appellant supposed the

counsel determined and proceeded with such endeavors.

When Appellee filed in municipal court for legal fees, Appellant discovered the fraud with the

documents in the one accordion file requested from Appellee. During the time, Appellant

investigated the laws and case laws to determine the proper rules and procedures for domestic

law. Upon investigation, Appellant learned many processes of the law were not adhered to by the

Appellant; thus the civil action for fraud misrepresentation, falsification, and conspiracy to

benefit the opposing party.

Areuments for Appeal

1) The Court failed to acknowledge the Appellant's legal information, affidavits, anddocumented information thereby presenting a "genuine issue" for a trial according toRule 56 (E & F) Summary Judgment.

Appellant included affidavits and documents verifying the fact: the Appellee presented

falsified, intentional misrepresentations of legal documents and marital assets during a domestic

relations case. Appellant believes the affidavits were ignored and/or not recognized as evidence

for "cause of genuine issue" because the information substantiated the facts of fraud and

intentional misrepresentation by the Appellee. Appellant Hayes.continued to contend and has

presented factual information, affidavits, documentation, and written statements showing the

existence of a "genuine issue" as provided in following cases: Hall v. Fort Frye Local School

District Bd. of Education (1996), 111 Ohio App.3d 690, 694-695, 676 N.E.2d1241 and Wing

v. Anchor Media, Ltd of Texas (1991), 59 Ohio St,3d108, 570 N.E.2d 1095. Appellant

Hayes' continued to "respond with specific facts showing that there is a genuine issue of material

fact." Furthermore, according to Civ.R. 56(E); Riley v. Montgomery (1984), 11 Ohio St. 3d

75, 79, 11 Ohio B. 319, 463 N.E.2d 1246. `A "material" fact is one which would affect the

outcome of the suit under the applicable substantive law, Russell v. Interim Personnel, Inc.

4

(1999), 135 Ohio App. 3d 301, 304, 733 N.E.2d 1186; utilizing the summary judgment was

inappropriate and in error in the civil action case decision.

2) The Court stated the Appellant was replacing terminology of one tort for another.

Therefore, Appellant will specifically define "malpractice" and "fraud":

Malpractice is "a dereliction of professional duty which causesan injurious negligence"; whereas, fraud is an "intentional perversionof truth in order to induce another to surrender a legal right".

The Appellant firmly believes the claim is not "malpractice" when a professional intentionally

misrepresents valuable marital information to the evaluator, client, and court. The Appellee

intentionally distorted information concerning not only the retirement plan; but the monetary

loan; monetary information within an equity loan; an inheritance account; the retirement account

statement shows where the Appellee physically covered up information, creating fraudulent

misrepresentation and misconduct. The misconduct not negligence performed by Appellee

I-Iaddox allowed Appellant to base her decision upon such information; thus, the case is for

fraudulent misrepresentation, not malpractice. According to Hershman v University of Toledo

(1987) 35 Oh Misc. 2d 11 519 NE 2d 817 48 Ed Law; the first element of a misrepresentation

made so that the intended person relied upon and makes it justifiable under the circumstances,

"The fact of misconduct is greater than negligence is a requirementfor an award of punitive damages because there is greater probability

of causing substantial harm. The inisconduct is the final answer to thethree summaries of fraud, intentional misrepresentation, and conspiracy,"

Appellant presented facts and documents to validate the Appellee's misconduct.The Appellee

intentionally misrepresented pertinent, valuable marital assets and debts to the Court through

legal documentation and merely, followed the lead of the opposing party by not verifying facts

with "written findings of facts" pertaining to all marital assets and debts. Thus,

Appellant/Plaintiff believes the Courts erred in determining the Appellee/Defendant acted in

malpractice; instead of fraudulently, intentionally misrepresenting marital assets and debts.

5

Appellant/Plaintiff definitely continues to state the Appellee/Defendant was acting with

misconduct in the domestic case to benefit the opposing party which answers "the three

summaries of fraud, intentional misrepresentation and conspiracy."

3) The Appeals Court stated Appellant was merely changing terminology toaccommodate the four year statute failed to show Appellee's "gain" if hisrepresentation was defective.

According to LoneStar Steakhouse Saloon o(Ohio. Inc. v Quaranta, Ohio App 3d, NE 2d

Ohio App(2002) & Wisecup v Gull'Developrnent, 56 Ohio App 3d 162, 565 NE 2d 865 (1989)

"The four-year limitations period set forth in RC2305.09 does not begin to run until the plaintiff

has suffered an injury as a result of the alleged tortious conduct of the defendant," therefore the

Courts of Appeal erred in stating the case was for "malpractice" and not "fraud". As well,

according to Caston v Bailey, Ohio App 3d, NE 2d, (2003) "a right due to presenting a claim of

`fraud'," intentional misrepresentation and civil conspiracy. Therefore, the Court abused

discretion with a decision based on statute of limitations. The Appellant contends the case is for

fraudulent misrepresentation of marital assets and debts; providing for the four year statute.

Appellee falsely and intentionally misrepresented the information to Appellant for the benefit of

the opposing party. Thus, the Appellee was conspiring to complete an agreement with

knowledge the information contained within the document was false, misrepresented and

calculated incorrectly. One example of the Appellee's "gain"; Appellant stated the Appellee was

facilitating to the benefit of the opposing party. The result would be a gain for the Appellee in his

fees being paid for merely facilitating/following the lead of the opposing party and not

representing the best interest of his client. The Appellee received over $6500 for fees when he

merely followed the opposing party's lead; "easy money"; especially when a discrepancy exists

witli the documentation. The Appellant stated, "I am not aware of what happens behind closed

doors, but fees of over $6500 is an asset". When an attorney facilitates instead of representing his

client's best interest through fraudulent misrepresentation of all valuable marital assets and

6

debts; whereas, receiving excessive, questionable fees, the absolute is a "gain". Appellant has

stated throughout the entire case; the Appellee was conspiring to benefit the opposing party; in

which, the Appellee utilized all forms from the opposing party without validating information

with "written findings of fact" that would equal a "gain"; an easy method of obtaining money

with little or no effort put forth while conducting legal business.

4) Constitutional and Equality Rights under Ohio Domestic Law

A.) According to Ohio Domestic Law, Ohio is an equality state; no fault state.B.) According to Canon Rules, Attorneys are required to represent their client's best

interest.C.) Domestic violence rules were not adhered to. Appellant reported the domestic

violence as requested by Appellee with no follow through by Appellee and inwhich he stated he knew notliing about.

D.) Two other cases whereas Appellee performed misconduct and fraudulentmisrepresentation were discovered by Appellant; therefore, Appellee hasperformed misconduct and fraudulent misrepresentation before with noconsequences

E.) Shared Parenting rights were of the utmost importance to Appellant and the ruleswere not followed by guided by a proposal which can be verified by the courtreporter's original transcript not those retrieved from Tayhi Court Reporting.

F.) The procedure for a separation agreement should have been conducted in June2001 initiated by the Appellee in the best interest of the Appellant. Therefore anopportunity for any proposals would not have occurred at "the eleventh hour" fora decision. Appellant believes the Appellee's conduct was definitivelyperforming as a facilitator in the interest of the opposing party; which harms theAppellants civil and equality rights.

In summary, Appellant provided the facts to conducting fraudulent activity which

denoted a "genuine issue" for trial and a denial of summary judgment; thus, facts proving

misconduct and not negligence. Verifying facts with documentation of Appellee intentionally

misrepresented and/or conducted fraud to harm the Plaintiff. According to Doyle vs. Fairrield

Machine Company Inc. (1997) 120 Ohio App 3d 192 697NE2d 667 & Nilavan vs. Osborn

(1998) 127 Ohio App 3d 1 711 NE2d 726. "evidence of misrepresentation with knowledge of

falsity with reckless disregard as to their truth or falsity and with intent to induce plaintiff to rely

on such representations" is validity for intentional misrepresentation and conducting fraud not a

7

decision of malpractice. Furthermore, fraud is based on a representation or a concealment as

noted in case Burr v Board of Citv Commissioners of Stark County and Russ vs TRW, Inc.

(1991) 59 Ohio St 3d 42 570 NE2d 1076. "The terms fraud and intentional misrepresentation of

fact forms the basis for a cause of action for fraud" as depicted in case Welfley vs Vrandenbur,e,

(1996) Franklin App No 95 APE 11-1409; therefore, the civil case and the appeal case were

decided in error of a decision of malpractice instead of fraud. The fact remains the Appellee had

three opportunities to perform to his legal capacity and not conduct fraudulent misrepresentation.

One, Appellant had presented Appellee with all pertinent marital assets and debts in June 2001,

except opposing party's marital bank account and "written history of profit sharing plan". Two,

letter December 10, 2001 stating the opposing party would be sending "proposals" and not to

wait until the last minute. Thirdly, the proposals arrived on February 13, 2002 and the hearing

was February 14, 2002. Therefore, the Appellee was fully aware of circumstances which

would need his legal attention well in advance. The fact Appellee waited until "the eleventh

hour" for the marital assets to be evaluated shows he created the intentional misrepresentations to

benefit the opposing party, The Appellee had ample time in which to have the marital assets and

debts evaluated with "written findings of fact" for the Appellant's best interest. Instead,

Appellant believes the Appellee chose to follow the lead of the opposing party as depicted by the

documentation. The culmination of the Appellee's misconduct has created an inequality and

injustice to the Appellant in economic standards, legal representation during a domestic case, and

constitutional rights. The Appellee was not negligent or performing a malpractice. The Appellee

lias aspirations of being a judge and committing malpractice would not be acceptable. Appellee

was aware of his misconduct, fraudulent misrepresentations, and conspiracy. However, the

Appellee created evidence to validate the fraud and Appellant discovered the documentation,

Ohio Revised Code, and case laws to verify the activity. Appellant believes the Courts have

continued to create an injustice by the affirmation and allowance of the summary judgment.

8

Appellant believes all of the cases beginning with the domestic relations case is a deliberate

infringement, disregard, and processes inequalities upon the Appellant's rights in the Twenty-

first Century. The three cases are of a great magnitude which has failed to be recognized by the

other courts. 'fhe domestic case and the civil case involves equality, constitutional and civil

rights being distorted and disregarded as well as demeaning to women.

ullvXubmitted

1maJeWHayes,

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy was served to the Ohio Supreme Court by handdelivery and upon Attorney David Herd, John C. Nemeth & Associates, 21 East Frankfort Street,Columbus, Ohio 43206-1069 by regular mail delivery service fronyrWilmaJeanjlayjuon August13, 2008.

ayes, Pro

FILEDFIFTH DISTRICT

COURT OFAPPEALS

COURT OF APPEALSMUSKINGUM COUNTY, OHIOFIFTH APPELLATE DISTRICT

WILMA JEAN HAYES

Plaintiff-Appellant

JUDGES:

JUN 30 2008 ,

MLA81tiNCUM COUNTY, OHIOTODD A. BICKLE, CLERK

Hon. William B. Hoffman, P.J.Hon. W. Scott Gwin, J.Hon. Sheila G. Farmer, J.

-vs-Case No. CT

D. MICHAEL HADDOX

Defendant-Appellee 0 P I N 10 N

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellant

WILMA J. HAYES PRO SE220 Airport RoadZanesville, OH 43701

Civil appeal from the Muskingum CountyCourt of Common Pleas, Case No.CH2007-0189

Affirmed

For Defend ant-Ap pel lee

DAVID A. HERD21 East Frankfort StreetColumbus, OH 43206

2007-0071

Muskingum County, Case No. CT2007-0071 2

Gwin, J.,

{¶1} Plaintiff Wilma Jean Hayes appeals a summary judgment of the Court of

Common Pleas of Muskingum County, Ohio, entered in favor of defendant D. Michael

Haddox. Appellant does not set forth an assignment of error in her pro se brief, but

argues the court abused its discretion because the matter presented genuine issues of

material fact.

{¶2} Civ. R. 56 (C) states in pertinent part:

{¶3} "Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. No evidence or stipulation may be considered except as

stated in this rule. A summary judgment shall not be rendered unless it appears from

the evidence or stipulation, and only from the evidence or stipulation, that reasonable

minds can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being entitled to

have the evidence or stipulation construed most strongly in the party's favor. A summary

judgment, interlocutory in character, may be rendered on the issue of liability alone

although there is a genuine issue as to the amount of damages."

{14} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts, Houndshell v. American States Insurance Company (1981), 67 Ohio

Muskingum County, Case No. CT2007-0071 3

St. 2d 427. The court may not resolve ambiguities in the evidence presented, Inland

Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio

St. 3d 321. A fact is material if it affects the outcome of the case under the applicable

substantive law, Russell v. Interim Personnel, Inc. (1999), 135 Ohio App. 3d 301.

{¶5} When reviewing a trial court's decision to grant summary judgment, an

appellate court applies the same standard used by the trial court, Smiddy v. The

Wedding Party, Inc. (1987), 30 Ohio St. 3d 35. This means we review the matter de

novo, Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186.

{16} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrate the absence of a genuine issue of fact on a material element

of the non-moving party's claim, Drescher v. Burt ( 1996), 75 Ohio St. 3d 280. Once the

moving party meets its initial burden, the burden shifts to the non-moving party to set

forth specific facts demonstrating a genuine issue of material fact does exist, Id. The

non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary material showing a genuine dispute over material

facts, Henkle v. Henkle (1991), 75 Ohio App. 3d 732.

{17} The trial court found appellee is an attorney who represented appellant in

her divorce action. She became dissatisfied with appellee's efforts and fired him in May

2002. Appellant filed a complaint with the Office of Disciplinary Counsel, which found

no unethical behavior. Disciplinary Counsel advised appellant she had the right to

pursue a malpractice action. In 2004, appellee sued appellant in Zanesville Municipal

Court to recover attorney fees, and appellant raised the issue of his allegedly deficient

Muskingum County, Case No. CT2007-0071 4

performance. The municipal court found in favor of appellee in July 2005. In August

2005, appellant filed an action against appellee asserting claims for fraud and

misrepresentation. She voluntarily dismissed the case in 2006, and re-filed it in March

2007.

{¶8} The trial court found appellant's claims of fraud and misrepresentation arise

out of the manner in which her ex-husband's 401 (k) pension was treated in the divorce

action. The 401(k) was worth about $92,000, but only $42,000 was determined to be a

marital asset to be divided equally. Appellant argues if appellee had handled the matter

properly, the divorce court would have found the entire 401(k) to be a marital asset and

divided it equally. The trial court here concluded that regardless of the terms appellant

uses in characterizing appellee's actions, her claim against appellee is for legal

malpractice.

{¶9} The trial court noted the time within which a party must bring an action for

legal malpractice is governed by R.C. 2305.11 (A), which provides the claim must be

commenced within one year after the cause of action accrued.

{110} In Zimmie v. Calfee, Halter & Griswold (1989), 43 Ohio St. 3d 54, the Ohio

Supreme Court set a two-prong test to determine when the statute of limitation begins to

run on claims for legal malpractice. The court found the statute of limitations begins to

run when there is a cognizable event, whereby the client discovers or should have

discovered his injury was related to his attorney's act or failure to act, and the client is

put on notice of the need to pursue his possible remedies against the attorney, or when

the attorney-client relationship for that particular transaction or undertaking terminates,

whichever occurs later.

Muskingum County, Case No. CT2007-0071 5

{¶11} The trial court found appellant was aware of appellee's actions no later

than May 2002, when she fired him. In July 2002, Disciplinary Counsel notified her of

her right to pursue a malpractice action. The trial court found appellant cannot extend

the one-year statute for malpractice by labeling the action as some other tort, see, e.g.,

Accelerated Systems Integration, Inc. v. Hausser & Taylor, L.L.P., Cuyahoga App. No.

88207, 2007-Ohio-2113, at 25. We agree appellant's claims are for legal malpractice.

{112} We address appellant's allegation appellee acted fraudulently separately.

{113} In order to establish fraud, a party must establish the following elements:

(1) a representation or, where there is a duty to disclose, concealment of a fact; (2)

which is material to the transaction at hand; (3) made falsely with knowledge of falsity or

with such utter disregard or recklessness as to whether it is true or false that knowledge

may be inferred; (4) with the intent of misleading another into relying upon it; (5)

justifiable reliance on the representation or concealment; and (6) a resulting injury

proximately caused by the reliance, Prosser v. Lutz, Richland App. No. 07CA73, 2008 -

Ohio- 845 at paragraph 11, citation deleted.

{114} In F & J Roofing v. McGinley & Sons, Inc. (1987), 35 Ohio App. 3d 16, 518

N.E. 2d 1218, the Summit County Court of Appeals held the circumstances surrounding

the fraud must be pled with particularity and must set forth the time, place, and content

of the false representation, the fact of misrepresentation, and the nature of what the

defendant obtained or the plaintiff gave as a consequence, Id., syllabus by the court.

{¶15} In his concurrence in Heiss v. Gragg (October 31, 1989), Ross App. No.

1560, Judge Harsha noted courts grant relief for fraud, not for moral wrongs, but where

Muskingum County, Case No. CT2007-0071 6

a party has been misled to his injury or made some irretrievable change of position,

especially where the defendant has secured an unconscionable advantage.

{116} Here, it is difficult to see what advantage appellant believes appellee

gained if his representation was defective. We find appellant cannot prevail on her fraud

claim, and her claims are strictly for legal malpractice.

{¶17} We conclude the trial court was correct in finding appellant's action was

an action for legal malpractice and the statute of limitations had run on her claim.

{118} For the foregoing reasons, the judgment of the Court of Common Pleas of

Muskingum County, Ohio, is affirmed.

By Gwin, J.,

Hoffman, P.J., and

Farmer, J., concur

c c^GWIN

WSG:clw 0609

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

WILMA JEAN HAYES

Plaintiff-Appellant

-vs-

D. MICHAEL HADDOX

FILEDFIFTH DISTRICT

COURT OF APPEALS

JUN 3 02008

MU,0AKINCUit1 CC');JNTY, OHIOTOD0 A. BICKLl;, CLERK

JUDGMENT ENTRY

Defendant-Appellee : CASE NO. CT2007-0071

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Muskingum County, Ohio, is affirmed. Costs to

appellant.

HON. W. SCOTT GWIN

HON. SHEILA06. ^ARMER