randy shepherd counsel for respondent: pro se relator ... 7. a copy of defendant's statement,...

IN THE SUPREME COURT OF OHIO

STATE OF OHIO EX REL. CASE NO. 2010-1171RANDYSHEPHERD

Relator,

vs.

MANSFIELD MUNICIPAL COURT

Respondent

ORIGINAL ACTIONIN PROCEDENDO

RESPONDENT'S, MANSFIELD MUNICIPAL COURT,MOTION TO DISMISS

COUNSEL FOR RESPONDENT: PRO SE RELATOR:

David L. Reiny(S. Ct. Reg. #0023702)Law DirectorCity of Mansfield, Ohio30 North Diamond StreetMansfield, OH 44902Telephone: (419) 755-9659Fax: (419) 755-9697E-mail: [email protected].

Randy Shepherd3558 Alvin RoadShelby, OH 44875

MOTION TO DISMISS

Now comes Respondent, Mansfield Municipal Court, by and through counsel, and pursuant

to S. Ct. Prac. R. X, §5, moves the Court for an order dismissing Relator's Complaint for Writ of

Procedendo. Grounds for said motion are fully set out in the Memorandum in Support, which is

attached hereto.

Respectfully submitted,

David L. Remy (S. Ct. I;kg. 4,*3702)Law DirectorCity of Mansfield, Ohio30 North Diamond StreetMansfield, OH 44902

Counsel for Respondent,Mansfield Municipal Court

MEMORANDUM IN SUPPORTTO RESPONDENT'S MOTION TO DISMISS

A. Facts:

The origin of this action lies in a civil case filed in Mansfield Municipal Court under Case

No. 2006 CVH 3913 and entitled "Calhoun, Kademenos & Childress Co. L.P.A. v. Randy D.

Shepherd". It was assigned to the Honorable Jeff Payton, Judge of the Mansfield Municipal Court.

The underlying basis of this case is an attorney fee dispute. It was filed with the municipal court on

November 1, 2006 [Resp. Ex. 1]. Relator, Mr. Shepherd, was served with a copy of this complaint

on November 7, 2006 [Resp. Ex. 2]. On November 30, 2006, Relator Shepherd filed an answer to

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the complaint and a separate counterclaim. [Resp. Ex. 3 and 4]. By an entry dated January 1, 2007,

the case was assigned to Magistrate Donald Teffner. [Resp. Ex. 5]. On January 8, 2007, Attorney

James L. Childress, on behalf of the plaintiff law firm, filed a reply to Relator Shepherd's

counterclaim. [Resp. Ex. 6]. Subsequently, Relator Shepherd filed a motion to dismiss the

plaintiffs reply to his counterclaim and a separate motion for summary judgment. [Resp. Exs. 7

and 8]. The basis of both these motions was that the counterclaim reply had been filed beyond the

twenty-eight (28) day period set forth in Civ. R. 12(A)(2). Subsequently, on January 23, 2007,

Relator filed a motion to amend his counterclaim. [Resp. Ex. 9]. Magistrate Teffner issued two

magistrate's reports with findings of fact and conclusions of law, one dated April 5, 2007 and a

second one dated September 17, 2007, wherein he found, concluded and reiterated that Relator

Shepherd's motion to dismiss plaintiffs reply to his counterclaim should be denied, as should his

motion to amend his counterclaim and his motions for summary judgment and default judgment.

[Resp. Exs. 10 & 11]. The magistrate's reports were adopted in full by Judge Payton. [Resp. Ex.

12]. A;bench trial was conducted by Judge Payton on August 20, 2008, and a decision was rendered

by the Judge on November 26, 2008. [Resp. Ex. 12]. Thereafter, on December 26, 2009, the Relator

filed a timely appeal of that decision, as it related to his counterclaim and motion for default

judgment. The Fifth District Court of Appeals, in Case No. 08-CA-334, heard the appeal and on

July 16, 2009 ruled that Judge Payton's decision relative to the counterclaim should be reversed,

that the Relator should have been able to amend his counterclaim once as a matter of law and, that

the matter should be remanded to the trial court for a hearing on the merits of the Relator's

amended counterclaim and motion for a default judgment. [Resp. Ex. 13].

Subsequently, a hearing pursuant to the Court of Appeals' remand instructions, was set for

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and heard on September 8, 2009. Pursuant to an entry filed September 30, 2009, Judge Payton

found that the monetary relief sought by the Relator in his counterclaim, as amended, exceeded the

jurisdictional limits for municipal court and therefore ordered that the matter be transferred to the

Richland County Common Pleas Court. [Resp. Ex. 14]. On October 2, 2009, the matter was opened

in Richland County Common Pleas Court, under Case No. 2009 CV 1434, and was assigned to the

Honorable James Henson. Thereafter, on May 26, 2010, Judge Henson conducted a hearing on

Relator's amended counterclaim, and on June 2, 2010, he filed a judgment entry finding that

Relator submitted no evidence in support of his counterclaim or any of the damages claimed therein

and that therefore all pending claims, motions, filings and any other issues, including but not

limited to Relator's amended counterclaim, were dismissed. [Resp. Ex. 15]. On July 1, 2010, Judge

Henson's entry was timely appealed to the Fifth District Court of Appeals [Case No. 2010 CA 84]

where it is currently pending. [Resp. Ex. 16].

What brings this matter before this honorable court is the Relator's contention that on

remand by the Court of Appeals, Judge Payton was mandated to grant him a default judgment on

his amended counterclaim and this court should order him to do just that.

B. Law and Ar ug ment:

A writ in procedendo is a high prerogative writ of an extraordinary nature. State ex rel.

Ratliff v. Marshall (1972), 30 Ohio St. 2d 101. It is an order from a court of superior jurisdiction to

one of inferior jurisdiction to proceed to judgment in a case before it. It does not in any case

attempt to control the inferior court as to what the judgment should be. State ex rel. Sherrills v.

Cuyahoga Cry. Court of Common Pleas (1995), 72 Ohio St. 3d 461. It is well-settled that the writ

of procedendo will not issue for the purpose of controlling or interfering with ordinary court

procedure, State ex rel. Cochran v. Quillin (1969), 20 Ohio St. 2d 6, nor will the writ issue where

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an adequate remedy exists in the ordinary course of the law. State ex rel. St. Sava v. Riley (1973),

36 Ohio St. 2d 171.

In the current case, Mansfield Municipal Court transferred Relator's amended counterclaim

seeking monetary damages of $245,000 to Richland County Common Pleas Court because the

damage claim exceeded the $15,000 limit prescribed by R.C. 1901.17. Following the transfer, a

hearing was conducted as to Relator's amended counterclaim and such counterclaim was thereafter

dismissed because of failure on Relator's part to present any evidence in support of said claim. That

dismissal was timely appealed and such appeal is currently pending before the Fifth District Court

of Appeals.

As stated in State ex rel. Utley v. Abruzzo (1985), 17 Ohio St. 3d 478:

It is axiomatic that a direct appeal as of right constitutes a plain andadequate remedy in the ordinary cause of the law. State ex rel.Cleveland v. Calandra (1980), 62 Ohio St. 2d 121, the existence ofwhich is fatal to a request for the extraordinary remedy ofprocedendo. State ex rel. St. Sava v. Riley (1973), 36 Ohio St. 2d 171.

The axiom set forth in Utley, supra, precisely fits the facts in the instant case. Relator's

amended counterclaim was properly transferred to common pleas court for consideration. The

common pleas court conducted a hearing on the claim and dismissed such claim after Relator failed

to present any evidence in support of his assertions. In accordance with App. R. 3 and 4, Relator

exercised his right to appeal the common pleas court's judgment entry dismissing his counterclaim.

The Relator's only available and proper remedy at this juncture of the proceedings, is to proceed

with his appeal to the district court of appeals, and if dissatisfied with the outcome of that appeal, to

apply for leave to appeal to this honorable court. Therefore, because Relator has a plain and

adequate remedy in the ordinary course of law, this writ of procedendo must be dismissed.

5


David L. Remy (S.Ct.Law DirectorCity of Mansfield, Ohio30 North Diamond StreetMansfield, OH 44902

CERTIFICATE OF SERVICE

A true copy of the forgoing Motion to Dismiss and accompanying Memorandum In Support

^was served on the following by regular U.S. Mail on July d , 2010:

Relator Randy Shepherd3558 Alvin RoadShelby, OH 44875

David L. Remy (S.Ct. $Zeg./1Vo. 0023702)Counsel for Respondent

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-tIN THE MUNICIPAL COURT OF MANSFIELD, OHT

Calhoun, Kademenos & Childress Co., L.P.A:: Case No. 2006 'LV 14 3 7/ 3

Six West Third Street, Suite 200P.O. Box 268 JudgeMansfield, Ohio 44901-0268

Plaintiff,

vs.

Randy D. Shepherd3558 Alvin RoadShelby, Ohio 44875

Defendant.

COMPLAINT

Now comes Plaintiff, by and through its counsel, and for its Complaint states as follows:

1. Plaintiff Calhoun, Kademenos & Childress Co., L.P.A. ("CKC") is, and at all times

relevant herein was, a corporation duly organized and existing under the laws of the State of Ohio

with its principal place of business in Mansfield, Richland County, Ohio.

2. Defendant Randy D. Shepherd is a person residing in Shelby, Ohio.

3. Defendant contacted Plaintiff at its place of business in Mansfield for the purpose

of having legal services provided.

4. Defendant has received the benefit of Plainti$'s legal services in numerous

instances.

5. Plaintiffhas sent Defendant monthly statements for legal services rendered.

Respondent Exhibit #1

6. Defendant has made no payments towards the invoices sent it by Plaintiff since June

25, 2004.

7. A copy of Defendant's statement, attached hereto and incorporated by reference,

show that the amounts owing on account are past due..

8. There is now due, owing and unpaid by Defendant to Plaintiff on account the sum

of Six Hundred Twenty Dollars ($620.00) plus court costs and interest.

WHEREFORE, Plaintiff demands judgment against the Defendant in the principal amount

of Six Hundred Twenty Dollars ($620.00), along with the costs of this action, interest at the current

statutory rate, and for such other and fnrther relief as the Court may deem just and proper.

Respectfiilly submitted,

Jam . Childress (#0030281)C oun, Ka.demenos & Childress Co., L.P.A.Six West Third Street, Suite 200P.O. Box 268Mansfield, Ohio 44901-0268Telephone: (419) 524-6011Facsimile: . (419) 525-9453E-mail: jimcna chklaw.comAttomey for the Plaintiff

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CALHOUN, KAL IENOS, HEICHEL & CHILDi. )S CO., L.P.A.Six West Third Street - Suite 200

Post Office Box 268Mansfield, Ohio 44901-0268

PH: 419-524-6011 FAX: 419-525-9467Email: [email protected]

STATEMENT OF ACCOUNTOctober 26, 2006

MR. RANDY D. SHEPHERD3558 ALVIN ROADSHELBY, OH 44875

Please include this accouut# ou your check: 400193698

Our records indicate that the following invoices are outstanding:

Invoice # Invoice Date Invoice Balance Due

13704 07/31/04 $457.50

15314 08/31/04 $162.50

$457.50

$162.50

Total balance due, please pay this amount .......... $620.00

THANK YOU FOR YOUR PROMPT ATTENTION

Mansfield Municipal CourtOffice of the Clerk - Civil Division

30 North Diamond StreetMansfield, OH 44902

(419) 755-9637, 755-9638, 755-9639, 755-9641

SUMMONS IN CIVIL ACTION

Amount of Suit: $620.00Court Costs: $86

11/06/2006 Case Number: 2006CVH03913

Calhoun Kademenos & Childress Co LPA VS. Randy D. Shepherd

To: Randy D. Shepherd 3558 Alvin Road Shelby,OH 44875

You have been named a defendant in a complaint filed in the Mansfield Municipal Court. Acopy of the complaint is attached.

The name and address of the plaintiff's attorney is:Attorney James Childress L6 West Third St Suite 200 Mansfield, OH 44901 0268

Phone Number: (419) 524-6011

You are hereby summoned and required to serve upon the plaintiff's attorney, or upon theplaintiff, if he has ho attorney of record, a copy of an answer to the complaint within twenty-eight days after service of this summons on you. Your original answer must be filed with theClerk of Mansfield Municipal Court within three days after you served a copy of the answer onthe plaintifYs attomey.

If you fail to answer, appear or defend, judgment by default will be rendered against you for therelief demanded [n the complaint.

DANIEL F. SMITHClerk of: Mansfield Municipal Court

P..roof of ServiceSummonS and copy of complaint

deposited in U.S. Mail by

certified mail with returnreceipt requested

By: Norma Davis, Deouty Clerk

ReturnDate ReceivedBailiff:Service made to:

For: Date of Service:This day of , 20_ RETURN FEES:

DANIEL F. SMITH, Clerk of Court Service:By Mileage:

Deputy Clerk Copies:Total:

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W ^^ ^^Yn l M^^ ti^^7160 3901 9849 1 42 93311

Ice Type CERTIFIEDMAIL

4. ResVicted Delivery7 (Exhs Fee)

1. AMycle Addressed to:

Rand+9y D. Shepherd;3558 Alvin Road:Shelby, OH 44875

A. Receivetl by (Please Print Clearly)

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INTHE MUNICIPAL COURT OF

MANSFIELD, OHIO

PLAJiJTIFF

Calhoun, Kademenos &ChildressCo. LPA611Uest Third Street Suite 200Mansfield, Ohio 44901-0268

3 13CASE NO.2006-CVH-3193

ANSWER

DEFENDANT

Randy Shepherd3558 Alvin RoadShelby, Ohio 44875

With the following statements in support of:

1. The Defendant, States to the court That' he did contact the Plaintiff on 1 and only Ioccasion for legal representation. .

2. The Defendant, Does reside in or near Shelby Ohio.3. The Defendant states that he has paid certain sums of money to the Plaintiff for legal

representatimn.4. The Defendant, States that he has never in no way shape or form received benefit from

legal services as described by the plaintiff.5. The Defendent has made no payments as no service has been received and none is

forthcoming.6. The defendant states that Mr. James Childress did alter the invoice in question on Feb.

2, 2005. The altered invoice does include signature and a true copy of which isattached.

7. A counter claim has been filed.

Respectfully subm6fted

Randy Shepherd3558 Alvin RoadShelby Ohio 44875

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PROOF OF SERVICE

n laintiff at(®efendant) served the foregoi^g ^ P

yIl/7i^ , iOhio by regular United States Mail

on A'zaV, ^°^

®efendant

Atl-tlst i l, 2004

^IIR. RANDY D. SFIEPHERD^558 ALVIN ROADSHELBY, OH 44875

CALHOUN, KADEMENOS, HEICHEL & CHILDRESS CO., LPASix West Third Street - Suite 200

Posl Office Box 268Mansfield, Ohio 44901-0268

PH: 419-524-6911 FAX: 419-525-9467Email: [email protected]

13alanee fonvard as of invoice dated Augusl 11, 2004A/R adjustments macJe since last invoice

Accounts receivable balaincc carried fonvardPROFESSIONA L SERVICESFEES

08/09/2004 .IMB C'ALL FROM, TO CLIENT RE: MEDICALEaPENSES, CHILDREN SERVICES.(MEDICAL EXPENSES)MEETING WITH MR. SHEPHARD ANDAMY RE: FAILURE OF RCCSB TOPROTECT AND PROVIDE MEDICALATTENTION FOR CHTLDREN.UPCOMfNG HEARING IN JUVENILECOURT FOR RACHEL. ( CHILDRENSERVICES)CALL TO.(UVENILE COURT, DOMESTICRE•LAl'IONS, RCCSB. ( CHILDRENSERVICES)

-_:/19/2004 ,1MB

08 /20/3004 .I M B

II1voIcL'}} 15114

Bllllng, (hrou^h: 08/-11/2004

C'IICIIt ACC01.111(# =;•OOI 9i(198

I-1RQOI

S45 7.5(1

25.f1(1

i7.50

S 162.5(1

Billine SumrnaryTotal professionalscrviccs

Total of new. char^es for this invoicc

Plus net balance fol7varcl

S162.50

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

S 162.50

S457.50

1'otal halance now due 62

RI-ease include on your check the invoice #: 15314. and account #: 4D0193698

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MANSFIELD, OHIO

PLAINTIFF

Caihoun, Kademenos &ChildressCo. LPA6 West Third Street Suite 200Mansfield, Ohio 44901-0268

vs.

DEFENDANT


CASE NO.2006-CVH-3193 ^

COUtVTERCLAIlOA

1N'sth the fol6owereg statements in support of:

1. The Defendant moves the court to find the plaintiff guilty of creating a conflict c

interest to the detrirnent of its ciient.2. The defendant moves the court to find the piaintifF guilty of Bait and switch tactics.3. The defendant moves the court to order the lump sum payment from the Plaintiff

$10,000 to provide competent aiternate legal council.

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_On or about August 14, 2003 the derenciant was vra sy ^ Gyucs^c^ cse e:-Richiand County Com, n pieas court to determine percentages ofmedical obligation owed by each parent of the family described in RichiandCounty Domestic Relations Court case 91-D-354 and all other associated casenumbers in all courts. The court did allow 30 days for the defendant.to

produce such tangible evidence.In the Magistrates Decision of the hearing held on August 14, 2003. The

court states that if certain orders issued to the Child Support EnforcementAgency (CSEA) had not been followed. Either party may ask for compliance.The defendant promptly contacted the CSEA to inform them of theMagistrates orders and or decision. The defendant also requestedcompliance to all orders issued to the CSEA.On or about August 29, 2003. The defendant responded to the Magistrate'srequest for documentation via Facimile. (Defendants A attached).Shortly thereafter and prior to December 16 2003. The Defendant contactedthe law firm of Calhoun Kademenos & Childress (The Firm) to represent thedefendant in matter to reach compliance.The Defendant did council with Julia Bourdeau on no less than 3 occasionsPrior to Dec. 16 2004. The billing was paid in full prior to 09-09-2004. The firm

did accept payment prior to the balance issued by The Firm on August 31,2004. The Defendant began to question the validity and justness of the billing.On December 12, 2004 the Defendant e-nBaiied (Defendant's B) to MissBourdeau. The defendant received no response. After severai o^er attesnpts

"to reach Miss Bourdeau via telephone, on or about Jan 20^ 200^ 7he^- ^Defendant was informed by The Firm that tJdiss Bourdeau_*s no iorr v^ith_the firm in addition the new attorney for domestic reiatioogxas ^ ar

Lynch. =^^nch had acted a referee in an earlier hearing on as"^ted'mavrs

LINr y.and therefore could not represent the Defendant in the cuRent iit4ation. Inessence The firm had created a conflict of interest to the detriment of it'sclient, The Defendant.On Feb. 2, 2005 the Defendant met with senior partner, Mr. Jim Childress, of.

The Firm. Mr. Childress did explain that The Firm had created a conflict ofinterest and that The Firm could not and would not represent the Defendant.Mr. Childress did inquire about billing invoice and how it should be handled.Since The Firm had created a conflict of interest. Mr. Childress was willing tocut charges from $620 to $300. Mr. Childress did offer to cut and did sign analtered invoice. (Defendants C) This is unethical practice.As a nzatter of ethics The Firm is liable to provide competent alternatecouncil.The defendant was forced by bait and switch tactics to seek alternate

council. That council is in the name of Eric LaFayette esq. Of the Byron Potts,Law firm. 415 E. Broad St. Columbus Ohio.In closing the Defendant did p[ay the firm certain sums of money for legalrepresentation on matters listed. The firm did accept payment on services tohp rendered. The Firm created a conflict of interest. The Firm has issued no

PROOF OF SERVICE

(Defendant) served the rego/ing Co terclaim on plaintiff at

Ohio -7-5,-A0/ by regular United States Mail

.on 2024,

Slgned

Defendant

D J^ -a,,VrarJ7

FACSIMILE TRANSMITTAL SHEET

TO:Maotrate McKinley

Fn%NU6(RE¢: DATE:

419-774-5574 August29,2003COMPANY: TO7'AL NO. OF PAGES INCLUDING COVHR:

Domestic Relations court of RidAand 2

CountyPHONr NUWI3GR:

419-774-5573

SaNDL^.R•SRErrRrNCrNUniorR:

Case 91-D-354 and 91-D354aiIr. YOUR REFERENCE NUMBER:

Computations of percentages of uncoveted (Click here and type reference number]

medical expenses

q URGGNr q FOP. REVI]iW 11 PLSnsr COMMENT q PLCASS R7iPLY q P1.CiAS1? RI:CYCLr.•.

NOTrS/COMMiiN1:S:

n/dr McKinley,

Please review the attached falc as it pertains to some of the reasons that I can not deliver the

child support split custody worlc sheet prior to Dec. 27 2002.

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RANDY & CINDY SEIEPI-IERD ° 3558 ALVIN ROAD - S1IELBY, OFI 44875

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POr. 1,\AcKirtley,Case # 91 D-354

Your Honor,

i ask you kindEy to revieva the foiiowirtg matter that I strongly feel should bebrought to your atiêroi•ion. V he io9iowing is in the re5a^feP of a request made to me onAugust 14, 2003 at a con'ternpi; hearing.

During the previously eLaeed hearing, it was requested that 8 acquire andpresent to the court's satisi:'acfion physical documeroYation ff, the actual percentagesof previously ordered support regarding child suppori and medical expensespertaining to this case that were in efi'ecfi previous to the date of December 27, 2002.8 promptly contacted The RichEarsd County Child Support Enforcement Agency(RCCSEA) on this matter, asking for the document of supporL that was in effect mostrecenVy prior to December 27, 2002. iri response to my inquiry, B received a courtorder (case 9ID-354) starti7p-daaed May 10, 1995. Attaci7ed to this order is acoesaputiafion worksheet, which has no date. This woricsheet identfies a percentageoa support ob0igal':iora. Mother 59% and father 41 %.

I con4aofed RCCSEA once more to veriffy that this was indeed the most recentorder in effed previous to December 27, 2002. it was confirmed by RCCSEA rhetthis document is the latest percentage split custody calcufaiiori worksheet as pertainsi:o Ashley and Rachel Shepherd wiah an assumed date of May 1995.

The order of iUday 1995 is the judgment entry of a hearirog that ,nvas heard i^sApril 1993. In the transcript e'rorn that hearing it can be found that Mr. Frank Benhamwas ordered and agreed to prepare a judgment ent-y . 'i•o this day August 29 2003.Mr Benham has not presented a judgrbier2t eratPy on the hearirog of April 'i 1993. Hedid petièioro the couri: to be relieved of ah'ss case. This was after he was ordered andagreed to prepare said judgment entry.

The judgment enfi-y of the April 1993 hearing was finally prepared by Mr. Johnâft mvs&y anrd preserofeo'to Me coura?ae ai cost of $5017 io rr<e.

Eaowever; I have in my possess'ior6 a Juvenile Court Judgment Entry (casenumber 95-29633) that is date-stamped "Nov. 17 9:05 AM 95". This document is int6-re matter of the change of cuvtody f-orn the mother 'co me of my daugiiter, A myShepherd. This document is a judgment eratl-y of a heaeirtgthat was held on Nov. 11995. The order of the juvenile cour: directed at RCCSEA (paragraph 1, secfion a)that has never been convpVef:ed. Paragraph 2. huas not been completed other than aniraterim amount. Paragraph 3_ second sentence of judgment entry oa (case number95-29633) explicitly orders the RCCSEA legal division, " sha61 deteffnine perMntagesev odQ^-aI @xpanom". Paragi'aph 7. ®a gizAd doceimerti verifiea th9ft mo&er uqindeed ercap6oyred at the time is'the hearing. °-W

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c Pa je 2 August 29, 2003

The RCCSEA did not move on this order. 6 contacted the RCCSEA on orabout 9-4-96 to ascertain thW outcorne o; this order. e he RCCSEA acknowledged, noaetiort had been taken to tu€^uES any part of the order of the corarLt. At that time i metenriph a Mr. Saunders in the E^^^SEA buiiding to discuss the percerrtages and thecalculations that we raow seek. it was his coraciusioui that the percentages tnrzre 49%to the mother and 51% `a t-he fm-ther. 9 had hini vurufte that information on my originailkudpni°roC eratElj of Nov. 17 1995. That is why I have used these perc,ersfiapes in myca6cu2s,tiorts as presented to Mr. Benham and Mrs. Castor in your c.our^L on August14€" 2003.

I have iraciuded documents, Juvenile couat Case No. 95-29663 datestamped Nov.17, 1995, A Split custody kn+orksheet allaged to be dated may 10 1995and the Judgment entry of case d09o.99-®-354 date stamped May 10,1995 for you toreview. These doctarrercrs i have mentioned and esidosed should all also be able tobe found under their respedve case numbers and offices on .tuie that are alsopreviousiy stated in this letter. Child support vsas never calculated afer thisdocureeent (Case number 95-29533) was issued, and as a resuft, and due io asnowball effiect oe the irdactrior or the RCCSEA the RCCSP-A has caused me asevereirajoastice as weii as economic depravation to my family and I. Since E1,11r. Benhamexcluded himself from the p€eparaton of 'Uhe judgment entry of the hearicsg heid onApril 1 1993. 6 can understand e.nshy he is not farraiGiar rNieh the case and the currentamouoits of support ob@iaation.

In conclusion, the documentation you requested for rrr.e Eo seek lies in thecorrtipietiora of an order by the Juvenile Court of RichEarod County to the RCCSEA •°hathas never been completed. The proper docirrsent "hat you have requested is not inexistence due to the blatant disregard and iracorripietion of a couft order (95-29633).The request to me cannot be fa6fiiied for the above stated reasons, because it doesand will not erist until The Corrinnon Pleas court of RichCarod county enforces theorder to ^^^SEA. to complete the stated defied order ®t the court. I thank you,ttsryour va@aaabie time. and at&erifiion sperou on, this matter.

^Sincerely, o..-

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Rarad}r D. Shepherd n?U^rr

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Raredy Shepherd

From: "Randy Sheoherd" <427benzCa^neo.rr com>To; sjin [email protected]>Sent: % Thursday, December 16, 2004 11:55 AMSubject Status

----°- ----^. ----- _--^Julia.It has been awhile since we tallced or exchanged status of my situation. As I recall from the last meeting you

stated that there is no hurry to get the matter of Ashley's unpaid medical expenses paid. That has been nearly 6months. I initially contacted you over well over 1 year ago and to date I have no idea of how you plan to proceedor even if you are proceeding in my behalf. I am fairly certain that you have not appeared as my attorney of

record.Originally I contacted you to get a motion for compliance of a court order that was written in 1995. I did this at thedirection of Magistrate McKinniy. To date I have not gotten a thing as far as paper woric or mofion filed. My claimfor unpayed medical expenses is only around $1200 with the current billing from your organization I am nearing

$1000 in legal fees. I do not Icnow that a $1000 charge to collect $1200 is reasonable.

As you well know the matter hinges on what is the correct amount, in percentage, of medical expenses and it allhinges on a Juvenile court order 95-29633 that was never completed. That is why ther exists a need for

compliance.

Since I believe that you have not made an appearance as my attorney of record. I will up date you on what hashappend. You see that even though you feel that ther is no hurry to get this order of compliance. Rccsea feels

that theris a hurry to get some supposed back child support. They called me to court on Nov. 16. in the name ofchild support for Rachel. Juvenile court Case number 2003 DEP 0066. Mistake of fact. Once we got into the court

room. Kelly Lucas moved the goal posts and tole the magistrate that this hearing was for Amy and that the casenumber was 96-31293. Now don't say that" They can't do that" because that is exactly what was done. Fortuantly

I had a copy of 95-29633 in my breief case and was allowed to enter it as Defendants exhibit A. So now it is

current in service. I believe that you once said that if it coud be in some way a part of a current case. Then you

would feel more confident in making it happen. So here you are.

To my catculations. I have over payed child support to the tune of about $12000 (thelve thousand dollars)..Ibelieve that this money was collected in a fraudulent manor and I should be allowed the option of trippledamages on this money plus reasoanble attorneys fees.

So I need to know where you are on this matter. I am sorry but I can not see where you have done much torectify my situation. I do not believe that you have made an appearance as my atorney of record. Or you wouldhave been notified by the court of the hearings that were scheduled and are scheduled. I really need a status ofwhere you are and what, if anything, you are going to do? Also time line would be good for me.

One more thing on Juvenile case number 95-29633. I have reason to believe that ther is no sets number on thiscase number and that the file on this case number is just a 2 page court order with nothing ever being completed.I have requested a certified copy of this case number from Juvenile court and I should receiveit later today. Yousee for you there is no need to hurry, but for me rccsea will not let it rest and I just*epp getttt^ battered. Plus itcertainly would be nice to get my due medical expenses plus attorneys fees for A410ând P^chel. an in

some form or manor that money is due and owing as the fees that you have chargrye^^

D

e areê arwing.w

^r*!Please e-mail me with a status if you are going to do anything?

oâ- moa l

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CALHOUN, KADEMENOS, HEICHEL & CHILDRESS CO., LPASix West Third Street - Suile 200

Post Office Box 26eMans(ield, Ohio 44901-0266

PH' 41 fi-524-F011 FAX: 419-525-9:1 G7Email: DaveSCg)r.khlaw.com

-\eIf:. R,1NDY D. SI-II::PHL`RD;iiti ALVIN ROA!)SI-II:iLBY- OH 44875

13a1111 'ce R1r"•a1t1 .Is of invoice ciatecl A u"usl 31. 20041: R;Idjllstmi:nts madc since last im-oicc

ilccotlntS 1'LCCII^.II)Il` I)ill ancc c.n-I-ied Ii^nrardr'i:Orl_s, lcrNIal- SrRVlCes

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C'ALL FROM, TO CLIENT RE: 11qEDIC:\I..EXPENSES, CHILDREN SERVICES.(MEDICAL EXPENSES)

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RGLATIONS, RC'CS(3. (CI-IILDRI:NSERVICES)

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frease inctude on your check the invoice #: 15314 and account #: 4001 a3698

D,^2

IN THE MUNICIPAL COURT OF MANSFIELD , OHIO

L^^ ^^*t^s n m

PLAINTIFF

VS.

-at11^y -b. S+ie^^1C

DEFENDANT

CASE#_^'o^^

JUDGMENT ENTRY

This-M^-_day of L)p C eri1 b e (^ , 200_L_this case came on for

hearing upon the Courts own Motion and for good cause shown the herein case is

remanded to the Magistrate, for hearing and the Magistrate is hereby ORDERED to

report all issues to the Court.

SO ORDERED.

^JUDCj- PAY ON


IN THE MUNICIPAL COURT OF MANSFIELD, OHIO

Calhoun, Kademenos & Childress Co., L.P.A.: Case No. 2006 CVH:3-193^`^^°^`

Plaintiff,

vs.

Randy D. Shepherd

Defendant.

REPLY TO COUNTERCLA]M

Plaintiff Calhoun, Kademenos & Childress Co., L.P.A. hereby responds to the

Counterclaim of Defendant Randy D. Shepherd as follows:

1. Plaintiff denies that it "created" a conflict of interest. By way of furft; answer,^-,

Plaintiff avers that it did hire Attorney Charles Lynch in 2004.^^-•i 1

2. Plaintiff does not understand Defendant's claim of "bait and sv hit^h tactdxs" b^

any case denies any wrong doing. ^o^ ...

3. Plaintiff denies the allegations contained in Paragraph 3 of the:tounterc5iim.

4. Defendant is pro se and has not followed the recognized format for civil

pleadings, so in an abundance of caution Plaintiff is responding to a typewritten page attached to

the document labeled Counterclaim received frorn Defendant. As the assertions of Defendant

show, Plaintiffs firm was not contacted by Defendant until December of 2003. Julia Bourdeau,

formerly with the law firm of Calhoun, Kademenos & Childress Co., L.P.A. did work for

Defendant in 2004. She left the firm at the end of December 2004. Charles Lynch was hired in


the summer of 2004 by the firm and assumed all domestic relations work on behalf of the firm.

Because of his prior involvement as a referee in the domestic relations court case involving

Defendant, he could not represent the Defendant in these matters. Defendant did meet with

Attorney Childress of the firm who explained about the conflict of interest and that there was no

one at the firm who could continue to represent Defendant on this matter. As an accommodation

and settlement Attorney Childress offered to reduce the bill but Defendant failed to pay the

compromised amount. The remaining allegations contained in the unnumbered page attached to

Defendant's Counterclaim are denied. Documents which were generated to Plaintiff's

representation of Defendant are denied for lack of knowledge or information sufficient to form a

belief as to the truth of the matters asserted. By way of finther answer Plaintiff puts Defendant to

his proof on the counterclaims.

AFFIItMATIVE DEFENSES

I. Defendant's Counterclaim fails to state a claim for which relief can be granted.

Defendant's Counterclaim fails to comport with the Civil Rules.

Defendant's Counterclaim is barred by the applicable statute of limitations.

IV. Defendant's Counterclaim is barred by accord and satisfaction.

V. Defendant's Counterclaim is barred due to principles of waiver.,--

VL Defendant's Counterclaim is barred by laches.

°^

w-rr

_;= n l=cooVII. Defendant's Counterclaim is barred by the equitable principle oqo pel. _

Defendant is guilty of unclean hands.Xr0-

Defendant is contributorily negligent.

Defendant's Counterclaim is barred by the statute of frauds.

2

WHEREFORE, Plaintiff requests the Court to dismiss with prejudice the Counterclaim of

Defendant and award it its costs and expenses, including reasonable attomey's fees and such legal

or equitable relief to which it may be entitled.


s'CChildress (#0030281)Cz7houn, Kademenos & Childress Co., L.P.A.Six West Third Street, Suite 200P.O. Box 268Mansfield, Ohio 44901-0268Telephone: (419) 524-6011Facsimile: (419) 525-9453E-mail: iimc(a,chkla.w.comAttorney for the Plaintiff


The undersigned hereby certifies that a copy of the foregoing Reply to Counterclaim was

delivered by regular U.S. mail upon Defendant this -'^Xay of January 2007 at the following

address:


Jies L. Childress (#0030281)A omey for the Plaintiff

3

\' ^

4- ^^v^

4


MANSFIELD, OHIO

P LAINTIFF 3Qi3Gaihoun, Kademenos &Childress Co. LPA CASE NO.2006-CVH3443-(5 West Third Street Suite 200P•O, Box 268Mansfield, Ohio, 44901-026

VS.

D EFE NDANT

Randy Shepherd3556 Alvin Road.Shelby;-Ohio 44875

Motion to disniissReply to Counter claimCiv. Rule 12 a.2

Memorandum in support of:

1. The Defendant, States to the court that, The Plaintiff was served with counterclaim onNov. 30, 2006 via Regular U.S. mail.

2. The Plaintiff's Reply to counter claim (attached) was not timely brought.3. Per Civil rule 12 a.2 (attached) The Plaintiff had 28 days to respond to counter claim

and failed to do so.4. Wherefore the Defendant requests the court to dismiss with prejudice the Reply to

Counter Claim of the Plaintiff and award it it's costs expenses, including, but not limitedto, the total cost of competent alternate council as well as such legal or equitable reliefas to which it may be entitled.

Respectfully submit

Randy-5hepheritl3558 Alvin RoadShelby Ohio 44875


PROOF OF SERVICE

(Defendant) served the foregoing Motion to Dismiss on plaintiff atSix West Third Street, Suite 200 P.O. box 268, Mansfield Ohio 44901-026_

by regular United States Mail on -Jayary,, 13 2007_

SignedDefendant

_^D N

OOC72_C

7 tES-^^ N

cnJ

RULE 12. Defenses and Objections--When and HowPresented--by Pleading or Motion-Motion for Judgmenton the Pleadings

(A) When answer presented.

(1) Generally. The defendant shall serve his answer withintwenty-eight days after service of the summons andcomplaint upon him; if service of notice has been made bypublication, he shall serve his answer within twenty-eightdays after the completion of service by publication.

(2) Other responses and motions. A party served with apleading stating a cross-claim against him shall serve ananswer thereto within twenty-eight days after the serviceupon him. The plaintiff shall serve his reply to a counterclaimin the answer within twenty-eight days after service of theanswer or, if a reply is ordered by the court, within twenty-eight days after service of the order, unless the orderotherwise directs: The service of a motion permitted underthis rule alters these periods of time as follows, unless adifferent time is fixed by order of the court: (a) if the courtdenies the motion, a responsive pleading, delayed because ofservice of the motion, shall be served within fourteen daysafter notice of the court's action; (b) if the court grants ainotion, a responsive pleading, delayed because of service ofthe motion, shall be seived within fourteen days after serviceof the pleading which complies with the court's order.

r

Y-*

.-T-1<..

n^Crno^ ^

^ ,.-►

IN TEiE MUNICIPAL COURT OF MANSFIELD, OHIO

Calhoun, Kademenos & Childress Co., L.P.A:: Case No. 2006 CVH-3193

Plaintiff,

vs.

Randy D. Shepherd

Defendant.

REPLY TO COUNTERCLAIM

Plaintiff Calhoun, Kad.emenos & Childress Co., L.P.A. hereby responds to the

Counterclaim of Defendant Randy D. Shepherd as follows:

1. Plaintiff denies that it "created" a conflict of interest. By way of further answer,

Plaintiff avers that it did hire Attomey Charles Lynch in 2004. 0J

2. Plaintiff does not understand Defendant's claim of "bait and-s^""

ch ta^Eics"^ ui'Tc,=^ --!?mb N -.

any case denies any wrong doing.^ u

r,°c3. Plaintiff denies the allegations contained in Paragraph 3 of *6c^nter^e.im.

^ CA-j

4. Defendant is pro se and has not followed the recognized format for civil

pleadings, so in an abundance of caution Plaintiff is responding to a t5pewritten page attached to

the document labeled Counterclaim received from Defendant. As the assertions of Defendant

show, Plaintiff s firm was not contacted by Defendant until December of 2003. Julia Bourdeau,

fonnerly with the law fizm of Calhoun, Ka.demenos & Childress Co., L.P.A. did work for

Defendant in 2004. She left the firm at the end of December 2004. Charles Lynch was hired in

the summer of 2004 by the finn and assumed all domestic relations work on behalf of the firm.

Because of his prior involvement as a referee in the domestic relations court case involving

Defendant, he could not represent the Defendant in these matters. Defendant did meet with

Attorney Childress of the firm who explained about the conflict of interest and that there was no

one at the firm who could continue to represent Defendant on this matter. As an accoinmodation

and settlement Attomey Childress offered to reduce the bill but Defendant failed to pay the

compromised amount. The remaining allegations contained in the unnumbered page attached to

Defendant's Counterclaim are denied. Documents which were generated to Plaintiff's

representation of Defendant are denied for laclc of knowledge or information sufficient to form a

belief as to the truth of the matters asserted. By way of further answer Plaintiff puts Defendant to

his proof on the counterclaims.

AFFIRMATIVE DEFENSES

L Defendant's Counterclaim fails to state a claim for i.vhich relie3 canlg.-ranted.

H. Defendant's Counterclaim fails to comport with the,C^rd Rules. ^

Defendant's Counterclaim is barred by the applicabet^ti{ute ofdin-iioS_C

1V. Defendant's Counterclaim is barred by accord and sat Sf^tion.^

V. Defendant's Counterclaim is barred due to principles of waiver.

VL Defendant's Counterclaim is barred by laches.

VII. Defendant's Counterclaim is barred by the equitable principle of estoppel.

VII.I. Defendant is guilty of unclean hands.

IX. Defendant is contributorily negligent.

X. Defendant's Counterclaim is barred by the statute of frauds.

2

WHEREFORE, Plaintiff requests the Court to dismiss with prejudice the Counterclaim of

Defendant and award it its costs and expenses, including reasonable attorney's fees and such legal

or equitable relief to which it may be entitled.

Respectfnlly submitted,

Childress (#0030281)Ca`thoun, Kademenos & Childress Co., L.P.A.Six West Third Street, Suite 200P.O. Box 268Mansfield, Ohio 44901-0268Telephone: (419) 524-6011Facsimile: (419) 525-9453E-mail: iimc a,chldaw.comAttomey for the Plaintiff


The undersigned hereby certifies that a copy of the foregoing Reply to Colercl^was

delivered by regular U.S. mail upon Defendant this ^j'

address:


;r1i-s-G•r 9 rd•

ay of JanuaryP2O at t^ foll^g

8n=-rrsoo ^ ^

cs?^

omey for the Plaintiffes L. Childress (#0030281)

^G


MANSFIELD, OHIO

PLAINTIFF

Calhoun, Kademenos &Childress Co. LPA6 West Third Street Suite 200P.O. Box 268Mansfield, Ohio, 44901-026

vs.

9a1CASE NO.2006-CVH

Motion ForSummary Judgment

Civ. Rule;56 a,b

DEFENDANT



1. The Plaintiff failed to respond in timely manor and summarily failed to attend.2. The Defendant, Respectfully moves the court for a Summary Judgment forthwith on the

merits of this.case. Per Civ. rule 56.3. The Defendant informs the court that he is "Out of Pocket expense" of $3,110.00 to

secure the services of competent alternate council. In addition the Defendant paidthe plaintiff the sum of $275.00 for services not rendered. This represents a total"Out of pocket expense of $3385.00. ,

J

^^

s'Je'


24. The Defendant moves the court to award him treble damages or the maximum

allowed by the court which ever is less.5. The defendant moves the court to award him certain expenses for time spent and

time lost. These expenses shall be calculated at $500/hour and 80 hours spent/lostover the 3 year period ending Jan 13, 2007.

6. Wherefore the Defendant demands monetary judgment against the plaintiff for$9,000,00 compensatory damages. The defend requests $40,000.00 for time andexpense spent/lost and for any such other and further relief and discipline as thecourt deems just and proper.

Re ctfully supr,nj.tted^

Randy Sh'epher3558 Alvin RoadShelby Ohio 44875

-o

N

zR

3

PROOF OF SERVICE

(Defendant) served the foregoing Motion for Summary Judgment on plaintiff atSix West Third Street, Suite 200 P.O. box 268, Mansfield Ohio 44901-026_

by regular United States Mail on _January, 13,, 2007

Defendant

iIN

THE MUNICIPAL COURT OFMANSFIELD, OHIO

PLAINTIFF

Calhoun, Kademenos &Childress Co. LPA6 West Third Street Suite 200P.O. Box 268Mansfield, Ohio, 44901-026

vs.

DEFENDANT


CASE NO.2006-CVH-3913

Motion ForAmendment to CounterClaimCiv. Rule 15 a,b, Rule 26

cso^r-' ornp-i -

^. ^.


1. The Defendant respectfully moves the court to amend his Counter Claim to include all SeniorPartners of the firm as advertised on the Firm's Web Page. Defendant's Exhibit 5(attached)

2. Defendant's 5 is inclusive of all 5 senior partners of the firm as advertised globally.3. Defendant's 5 is inclusive of the services for hire of Miss Bourdeau as well as Heichel and

Spon.4. Defendant's 5 substantiates Defendants original claim of "bait and switch tactics" better

described in Ohio Revised Code. (ORC) 109:4-3-03 Bait advertising/ unavailability of goods.Definition B 1, B 4,a.

5. Defendant's 5 Raises the questions of, who are the Plaintiffs, who is and is not associatedwith the firm in question.

6. The defendant moves for joinder of all parties as represented in Defendant's 5. Civ. Rule 17and 19

7. Defendant's 5 was printed from the internet on Jan 22. 2007 and therefore was discovered onthat date.

8. The defendant moves the court to find "all" Senior partners guilty of TelecommunicationsFraud ORC 2913 A, B.

9. The Defendant moves the court for discovery (Ohio civil rule of procedure 26) of thereal person stated to be Spon in Defendant's 5. Respondent Exhibit #9

2

10.The Defendant moves the court to determine by discovery if the real person is Judge RonSpon.

11. Should the real person noted in Defendant's 5 be indeed Judge Ron Spon The Defendantmoves the court to immediately take all actions required to suspend Spon from publicservice and to impose any other sanctions as applicable by Ohio Code of JudicialConduct.

12. The Defendant moves the court to find all, senior partners as listed in Defendant's 5,severally responsible, guilty and liable for the despicable and illegal practices depictedherein.

13. The defendant moves the court to award him from each senior partner the original$49,000.00 of his original counterclaim.

14. Wherefore the Defendant demands monetary judgment against the plaintiffs for$245.000.00 in damages.

15. The Plaintiff in this action is and shall remain silent due to his own actions of untimelyresponse. Any action response or correspondence to the court by the plaintiff shall fall on

deaf ears. Rules of PracticeXlV 1,2,3,

Respectfully , ub itt

a dy Shepherd3558 Alvin RoadShelby Ohio 44875

3

PROOF OF SERVICE

(Defendant) served the foregoing Motion for Summary Judgment on plaintiff atSix West Third Street, Suite 200 P.O. box 268, Mansfield Ohio 44901-026_by regular United States Mail on _Janu^V, 22 2007.

SignedDefendant

-37

Livc acatcir. duiia ivi. Lvu.....uu

Live Search

Julia M. Bourdeau

Web Images News Maps Classifieds More-

Julia M. Bourdeau Page 1 of 4,977 results • Options ^ Advanced

JeaEiaM_ BourdeauMANSFIELD, OH, Ohio law firm focusing on,General, Labor, Personal Injury ... 6 West ThirdStreet, Suite 200, P.O. Box 268, Mansfield, Ohio44901-0268 Telephone:www.ckhc-law.com/jsp2622235.jsp • Cached page

Calhoun,_KademenosHeichel,_Childre__s &Span Ca , L.P,A. Mansfi_eld_..Julia M. Bourdeau Robert S. Naylor CharlesD. Lynch James L. Childress William D. ... Thelaws governing legal advertising in the stateof Ohio require the following statement ...

www.ckhc-law.com/attorneys.jsp - Cachedpage

Show more results from "www.ckhc-law.com".

Active Members... theatrealive.com with the subject "MemberEmail".) J A I B I C I D I E l F( G I H II I J I K IL I M I N ... Tyler Bourdeau Peter BrajkovicCarson Buchanan Julia Burgess Matteo BurnaboMarg Burkewww.theatrealive.cor€a/activeeueszs.htosT • Cachedpage

Bob Coto's Gravestone Photo'se. - 7ulia daughter of Rollie & Hattie died June 7,1818 aged 20 yers. ... The Family of Robert L.Coto and Patricia M. Bourdeauhome.earth9inlc.net/-bobcotogene/index.htreei -Cached page

Family of Nioses_ROBERT (.1_5.997)Burial: _ _;St Joseph, Monroe, MI.Father: FranSois ROBERT ( 14191) Mother: JuliaSilvia BOURDEAU (15930) ... M Moses ROBERT(16141) Birth: 01 Feb 1840 St Antoine, RiverRaisin, Monroe, MI.honTel.gte.net/robertdp/r_15997.htm • Cachedoaoe

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APR ` 5 2007

MElNECfPAl. COURTWiNSFIELD, OHIO

F.3ANEEE F. SMITH, CP.ERfC


Calhoun, Kademenos & Childress Co., LPA,

Plaintiff,

vs. CASE NO: 06-CVH-3913

Randy Shepherd,

Defendant.

MAGISTRATE'S REPORT

This cause came on before the Court, before Magistrate Donald R. Teffner,

in accordance with the provisions of the Revised Code of Ohio and the Rules of

Civil Procedure of the State of Ohio, upon Defendant's Motion for Default

Judgment and Plaintiffs Motion to strike Defendant's Motion for Default Judgment

and for leave to respond to Defendant's Counterclaim.

Based upon a review of the file, the Magistrate makes the following findings

of fact, conclusions of law, and proposed decision.

FINDINGS OF FACT and CONCLUSIONS OF LAW

1. Defendant appeared at the Status Conference on January 29, 2007, and

raised issues as to why the Court should refuse to accept the Plaintiffs Response

to Defendant's Counterclaim and demanding the Court grant him a Default

Judgment on his Counterclaim.2. Plaintiffs Complaint was filed with the Clerk of November 1, 2006.

Pursuant to the delivery receipt filed by the postal authorities, Defendant signed for

service of the certified mail on November 7, 2006.


FILE DAPR " 5 2007

IV-UNIClPAi. COURTMAtdSFsELD, oHfo

DAN9EL F. SM37Pi, CLERK

3. On November 30, 2006, Defendant filed two (2) documents with the

Clerk of Courts. One document was designated as an "Answer" and the other

document was designated as a "Counterclaim". According to the proof of service,

on November 30, 2006, Defendant mailed copies of these documents, by ordinary

U.S. mail, to Plaintiffs office.4. On December 5, 2006, Magistrate Carol Scholl reviewed Defendant's

pleadings and indicated to the Clerk's office that said pleadings constituted an

acceptable appearance by Defendant and the case was to be assigned to a Judge.

5. On December 20, 2006, Judge Jeff Payton remanded the case to

Magistrate Donald R. Teffner.6. The parties were notified of the assignment and a Status Conference was

scheduled for January 29, 2007.7. On January 8, 2007, Plaintiff filed its Response to Defendant's

Counterclaim with the Clerk of Courts. According to the proof of service, Plaintiff

mailed a copy of the Response on January 5, 2007.8. On January 12, 2007, Defendant filed a "Motion for Amendment to

Counter Claim", but failed to file any Judgment Entry either granting or denying

his Motion, and filed a "Motion for Summary Judgment" with no documentary

evidence or affidavit to support his request or any Judgment Entry either granting

or denying his Motion.9. Inasmuch as the case was set for a Status Conference on January 29,

2007, the Magistrate made no ruling on any issues raised by Defendant.

10. At the Status Conference, the parties were given an opportunit'y to

"discuss" their respective claims. Since Defendant is pro se, the Magistrate

attempted to address the Defendant's concerns, and specifically, to explain the

Court's position relative to the various pleadings he had filed.12. Although Rule 12 of the Ohio Rules of Civil Procedure sets forth a

twenty-eight (28) day response time for a Counterclaim, Defendant's Counterclaim,

at best was required to be answered on or before January 2, 2007. Plaintiff filed it's

Response with the Clerk on January 8, 2007. There can be no prejudice shown by

APR - 5 2007

MONICiRA L COURTA"SFE€LD, oHtC)

DAN6Efl, F. 5&V,€y}t CLERK

the Defendant by this filing by Plaintiff s Response to his Counterclaim. The cause

had not yet been assigned for any hearings where the merits of the case would be

decided. No party to this action had changed any position nor could there have

been any damage suffered by Defendant because of Plaintiff s Response.

13. Defendant's Motion to Dismiss Plaintiffs Reply to his Counterclaim is

not well taken and is denied.14. Defendant relies on his research to claim the Municipal Clerk should

have refused to accept Plaintiff s filings. Firstly, Defendant has mistakenly cited the

Rules ofPractice of the Supreme Court of Ohio. This rule ONLY applies to_

appeals and filings with the Ohio Supreme Court and has no application to practice

in the Municipal Courts of Ohio. Secondly, the Municipal Clerk of Courts MUST

accept all filings submitted by any person, except for persons designated as

vexatious litagators under §2323.50 of the Ohio Revised Code. (See §1901.31(E)

of the Ohio Revised Code.15. Defendant's Motion for Summary Judgment and Default Judgment are

not well taken and denied. Defendant is not entitled to Default Judgment on his

Counterclaim since a Response has been filed. Defendant's Motion for Summary

Judgment does not comply with Rule 56 of the Local Rules and, giving Defendant.

every benefit of doubt, there does exist a genuine issue of fact as to his

Counterclaim.16. Defendant's Motion to amend his Counterclaim to add parties is not well

taken. Upon review of the pleadings and the Response filed by Plaintiff, the Court

finds Defendant's Motion to Amend his Counterclaim is denied.

PROPOSED DECISION

That herein case is set for Trial on tfie merits on Monday, M^4, 2007, at

1:00 P.M.

IH'ILEDFAPR " 5 2007

MilN6CtpAL COURTMMSFtELL7, ®HleS

DAN9EL F. SI'Ar6ii, CLERK

A Magistrate's Findings of Facts and Conclusions of Law shall indicateconspicuously that a part shall not assign as error on appeal the Court'sadoption of any Finding of Fact or Conclusion of Law in that decisionunless the part, t^y and specifically objects to that Findin g orConclusion as required by Civ. R. 53(E)(31.

JUDGMENT ENTRY

The Court, having fully considered the Proposed Decision of the Magistrate

and all appropriate pleadings and proceedings, if any, pursuant hereto, hereby

adopts the Proposed Decision of the Magistrate which is hereby incorporated in

this Judgment Entry and made a part hereof, and confirms the same and enters

Judgment thereon as the Order of this Court.

IT IS SO ORDERED.

I

SEP 1 7 2007MUl'ilWAL COtJRI

iMNSF:ELCs, OHyODAW-tf.-Z-


Plaintiff,

Vs.

Randy Shepherd,

CASE NO: 06-CVH-3913

Defendant.

MAGISTRATE'S REPORT

This case came on for hearing before Magistrate Donald R. Teffner on

remand for rulings on all Motions pending before the Court, in accordance with

the provisions of the Revised Code of Ohio and the Rules of Civil Procedure of theState of Ohio.

Plaintiff was present and represented by Attorney Andrew IvIedwig.Deferidant appeared pro se.

Prior to hearing any arguments by the parties, the Court entered into a

general discussion with the parties as to the remaining issues and the basis for

various rulings made by the Magistrate and adopted by the Court prior to thecurrent hearing.

Based upon that discussion and a review of the file, the Court finds the_ _ _ _. ... ---------=

following issues, although decided by the Court, should be reiterated for finalpresentation to the Court.

FINDINGS OF FACT, CONCLUSIONS OF LAW and DECISION

1. Although every attempt has been made to explain the legal reasoning it is

clear that Defendant, and his continued reliance upon the rules of practice solely

before the Sttpreine Court of Ohio as opposed to the Rules of Civil Procedure


SEP 1 7 `70r7

N` UNUC1PA0., COiJIff^.Nfmr_ D, 01410

['A-Mrt F. s^NTH, o[EMt

which apply to this Court, refuses to accept the fact that neither the Clerk of Court

of the Mansfield Municipal Coui-t nor the Mansfield Municipal.-C.ourt was req.ui_re

PtQ=gTa91^-- h(-m-an--aittt}n1atie-- .-Qn ngnt.

Answer-to Defendant's-Countercl-aim. ---

2. The.Magastraze^pecificai^y.^ds_tha^tli^^lerJ^of

Municipal Court was required to accept Plaintiffs Answer and Response to

Defendant's Counterclaim and inasmuch as there was no Motion for Default

Judgment fiied nor any document with facts supporting a prejudice to Defendant

by accepting the Answer, Defendant's objections, in his Motion for Default for

faihire to timely answer the Counterclaim, are not well taken.

3. Defendant's Motion for Default Judgment on his Counterclaim is denied.

4. The Court reiterates that Defendant's Motion to strike Plaintiffs Answer

to his Counterclaim is not supported by Ohio law and is contrary to the purpose of

the Rules of Civil Procedure.

5. The citations relied upon by Defendant apply only to rules of practice

before the Ohio Supreme Court and have no applicatioii to the civil practice in

Municipal Courts of Ohio.

6. Defendant's Motion for Default Judgment is found to be not well taken

and the Court hereby denies Defendant's Motion for Default Judgment on his

CountercEaim.7. There is also before the Court Plaintiffs Motion to strike Defendant's

Counterclaim and for denial of Defendant's Motion for Summary Judgment.

',,------^°- °_

response to Defendant's Counterclaim and Defendant failed to file any Judgment

Entry granting or denying his Motion to amend his Counterclaim or for his Motion

for Summary Judgment.

9. In addition, Defendant failed to provide any documentaiy evidence or

affidavits to support his request to either grant or deny his Motion.

10. The Magistrate specifically finds, upon a review of the pleadings, that if

the Court were to accept Defendant's amended Counterclaim in this mater, there

SEP 1 7 2oi77IWJWEC,x^^ ^ o;^.Rr

°^'FURc: t. i^3 '^"? rx3 0WcH$"iP. ,ye,. ^,

would be questions of fact to be determined by a trier of fact and, therefore,

Defendant would not be entitled to have Summary Judgment granted. to him. on

11. The_Magistrate.finds,Defendant's Motion to amend his Counterclaim and

-._,to-addapar^s^ to tl?is actioâ^âûadwto_be no:t auel.l_tak^n -

12. Based upon a review of Defendant's claim, there is no possible legal

theory in which the additional parties could be held liable for any of the requests of

Defendant and the addition of such parties is meant to cloud the issues in this cause

of action as opposed to permit parties to be add.ed for judicial deterinination and

judicial economy.

13. The Magistrate specifically finds that this cause of action is merely a-

di spute over fees.

14. The action taken by Plaintiff-law firm in notifying Defendant that a

conflict of interest had arisen and he would have to seek other legal counsel is in

total accordance with the ethical rules governing conduct by law firms and

attorneys and the mere fact that Defendant was required to incur legal expense to

continue on with his case is not a matter on which the Court would be ale to grant

damages.

0 15. Inasmuch as the Magistrate has found that Defendant's amendment to

his CoUmterclaim is not well taken, and Defendant is not entitled to Default

Judgment, there exists no reason for the Court to transfer this case to the Richland

County CouIt of Common Pleas.

16. Defendant's request to transfer this case to the Richland Comity Court of

mon Pleas is denied.^

17. The remaining issue before the Court is a demand by Defendant for a

Trial. Defendant does have the right to demand a Jury Trial but, pursuant to

the rules of practice in the Mansfield Municipal Court, Defendant must place ajury

deposit with the Clerk of Court before the matter can be assigned for Jury Trial.

17. This case shall be set on the regular docket of the Court unless and until

Defendant files the deposit for a Jury Trial as required by the local rules.

SL'P i 7 '^007

N't<^'-".Ca;At COK+ RTsz"AVSs iRD, o4io

C:

A.1WIagistrate`s Findings of Facts and Conclusions of Law shall indicateconspiceaously that a part shall not assigrg as er-r-or-on-appe-a-i-the Court's --aCdo-tioP9ot aIlly L.+-:^Ind[Il^lar

ComcCusioat as required by Civ. R. 53(E)(3).

^JUDGMENT ENrfRY

The Court, having fully considered the Proposed Decision of the Magistrate

and all appropriate pleadings and proceedings, if any, pursuant hereto, hereby

adopts the Proposed Decisior, of the Magistrate which is hereby incorporated in

this Judgment Entry and made a part hereof, and confirms the same and enters

Judginent thereon as the Order of this Court.

IT IS SO ORDERED.

Jeff Payton, Judge

^^0.^n^i^s CJ^^I


CALHOUN KADEMENOS & CHILDRESS . CASE# 06-CVH 3913

CO. LPA

PLAINTIFF

VS.

RANDY D. SHEPHERD JUDGMENT ENTRY

DEFENDANT

This matter came on for trial this twentieth day of August, 2008. The Court findsthat all parties were present, that Plaintiff was represented by counsel and Defendant

appeared pro se.

Further, the Court finds that all Pretrial Motions and Pleadings filed herein, were

considered at the time of Trial.

Upon consideration of all the pleadings filed herein and the evidence adduced attrial, the Court finds that the Reports and Recommendations of the Magistrate as filedherein on Apri15, 2007 and September 17, 2007 are hereby adopted and incorporated

herein as if fully rewritten.

Further, the Court finds that Plaintiff's Motion for Directed Verdict is not welltaken as to Plaintiff's claim as well as Counts 1& 2 of Defendant's Cotmterclaim andthat said Motion is granted as to Count 3 of Defendant's Counterclaiin.

the Court finds that Plaintiff did not establish, by a preponderaKe ofFurther ,t owed Plaintiff any money for legal services rendered LtEg tdfDh ane enatevidence, t

period in question. ^=T- rv

The Court fiuther finds that Defendant did not establish, by a preponder-ncn ofa,*

the evidence, the material issues in his Counterclaim.`--xs ^ ta

ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED AND t*^ ^DECREED that Plaintiff's Motion For Directed Verdict is granted as to Count 3 of

Defendant's Counterclaim.

FURTHER, IT IS ORDERED that Judgment on Plaintiff's claim is rendered for

the Defendant and Judgment on Counts 1& 2 of Defendant's Counterclaim is rendered

for the Plaintiff.


Childress v. ShepherdCase #06-CVH 3913

FURTHER, IT IS ORDERED that the Court Costs of the herein matter be

assessed against the Plaintiff.

SO ORDERED.

JP:mmt

cc: Calhoun Kademenos & Childress, PlaintiffRandy D. Shepherd, Defendant

[Cite as Calhoun, Kademenos & Childress Co., L.EA. v. Shepherd, 2009-Ohio-3523.1

COURT OF APPEALSRICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

CALHOUN, KADEMENOS, & JUDGES:CHILDRESS CO., L.P.A. Hon. W. Scott Gwin, P.J.

Hon. William B. Hoffman, J.Plaintiff-Appellee Hon. John W. Wise, J.

-vs-

RANDY SHEPHERD

Defendant-Appellant

Case No. 08CA334

OPINION

CHARACTER OF PROCEEDING: Appeal from the Mansfield Municipal Court,Case No.2006CVH03913

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: July 16, 2009

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANDREW MEDWID RANDY SHEPHERD, PRO SE6 West 3rd Street, Suite 200 3558 Alvin RoadMansfield, Ohio 44902 Shelby, Ohio 44875


Richland County, Case No. 08CA334 2

Hoffman, J.

{11} Defendant-appellant Randy Shepherd appeals the November 26, 2008

Judgment Entry entered by the Mansfield Municipal Court, which granted directed

verdict in favor of plaintiff-appellee Calhoun, Kademenos & Childress, Co. LPA ("the

Firm") on one of his counterclaims, and granted judgment in the Firm's favor on the

remaining two counterclaims.

STATEMENT OF THE CASE AND FACTS

{¶2} On November 1, 2006, the Firm filed a Complaint, seeking payment for

legal services rendered on Appellant's behalf. Appellant filed an Answer onNovember

30, 2006. On the same day, Appellant filed a Counterclaim. On January 8, 2007, the

Firm filed a Reply to Counterclaim. The certificate of service attached thereto indicated

a copy was sent to Appellant by regular U.S. Mail on January 5, 2007. Appellant filed a

motion to dismiss the Reply, which the Firm opposed, claiming the Reply was "at most,

four days late". January 17, 2007 Memorandum in Opposition.

{13} Appellant filed a motion to amend his counterclaim, seeking damages in

excess of the municipal court's jurisdiction. The Firm opposed Appellant's motion to

amend. The matter came on for status conference before a magistrate on January 29,

2007. The parties were unable to reach a settlement and the magistrate set the matter

for trial. On February 12, 2007, Appellant filed a motion for default judgment. The

magistrate issued a report on April 5, 2007. Therein, the magistrate stated he was

addressing Appellant's motion for default judgment, the Firm's motion to strike and for

Richland County, Case No. 08CA334

leave to respond to the counterclaim.' The magistrate noted Civ.R. 12 sets forth a 28

day response time for a counterclaim; therefore, the Firm was required to answer

Appellant's counterclaim on or before January 2, 2007. Although, the Firm filed its reply

to Appellant's counterclaim on January 8, 2007, the magistrate determined, because the

matter had not yet been assigned for any hearings on the merits, neither party's position

had changed and neither party had been damaged by the late filing. The magistrate

concluded Appellant was not entitled to default judgment because the Firm had filed a

reply. The magistrate also denied Appellant's motion to amend his counterclaim.

{14} Appellant objected to the Magistrate's Report. On May 3, 2007, the trial

court ordered the matter be transferred to the Richland County Court of Common Pleas,

finding the allegations contained in the counterclaim could exceed the monetary

jurisdiction of the court. The trial court subsequently stayed the transfer and ordered

the matter set for hearing before the magistrate on all open motions. Via Magistrate's

Report filed September 17, 2007, the magistrate again denied Appellant's motions for

default judgment and to amend his counterclaim. The magistrate determined there was

no reason for the trial court to transfer the case to the Richland County Court of

Common Pleas. Appellant again objected to the Magistrate's Report. The matter

proceeded to trial on August 20, 2008. Via Judgment Entry filed November 26, 2008,

the trial court approved and adopted the Magistrate's April 5, 2007, and September 17,

2007 reports as order of the court. The trial court granted directed verdict in favor of the

' The record before this Court does not include a filing by the Firm captioned Motion toStrike Defendant's Motion for Default Judgment and for Leave to Respond toDefendant's Counterclaim, nor is there a docket notation indicating the filing of such apleading.


Firm on one of the claims in Appellant's counterclaim, and rendered judgment in the

Firm's favor on the remaining two claims. The trial court also granted judgment in favor

of Appellant on the Firm's claim.

{15} It is from this judgment entry Appellant appeals, raising the following

assignments of error:

{16} "I. APPELLEE CANNOT APPEAR TO FILE AN ANSWER TO COUNTER

CLAIM 39 DAYS AFTER THE COUNTER CLAIM IS FILED WITH PROOF OF

SERVICE. CIV.R. 12(A)(2).

{77} "II. IS A RUBBER STAMP AVAILABLE TO ANYONE A LEGAL

SUBSTITUTE FOR EFFECTING [SIC] A JUDGMENT ENTRY AND FOR

JOURNALIZATION BY THE CLERK OF OFFICIAL COURT RECORDS? (CIV.R. 58)

{18} "III. APPELLANT IS ENTITLED TO A SUMMARY JUDGMENT, PER

CIVIL RULE 56, FROM THE COURT AS MOVED TO DO SO ON JAN. 12, 2007. TO

THIS DATE JAN. 9,2009 NO JE HAS BEEN JOURNALIZED ON SAID MOTION.

{19} "IV. APPELLANT HAS THE RIGHT TO AMEND HIS COUNTERCLAIM

ONCE, AS A MATTER OF LAW, WHEN NO ANSWER HAS BEEN FILED. (CIV.R.

15(A))

{110} "V. APPELLANT IS ENTITLED TO A DEFAULT JUDGMENT, PER CIVIL

RULE 55, FROM THE COURT AS MOVED TO DO SO ON FEB. 12, 2007. TO THIS

DATE JAN. 12, 2009 NO JUDGMENT ENTRY HAS BEEN JOURNALIZED/EFFECTED

ON SAID MOTION.

{111} "VI. APPELLANT IS DUE A JUDGMENT ENTRY ON HIS OBJECTIONS

TO MAGISTRATES DECISION, DULY AND TIMELY BROUGHT, ON APRIL 14, 2007.


TO THIS DATE JAN. 12, 2009 NO JUDGMENT ENTRY HAS BEEN DOCKETED ON

SAID OBJECTIONS. CIV.R. 53(D)(4)(E)

{712} "VII. APPELLANT IS DUE A JUDGMENT ENTRY ON HIS OBJECTIONS

TO MAGISTRATES DECISION, DULY AND TIMELY BROUGHT ON OCT 01, 2007, TO

THIS DATE JAN 12, 2009, NO JUDGMENT ENTRY HAS BEEN DOCKETED ON SAID

OBJECTIONS. (CIV.R. 53(D)(4)(E).

{113} 'VIII. APPELLANT IS DUE A JUDGMENT ENTRY ON HIS MOTION FOR

CONTEMPT (CIV.R. 56(G), DULY AND TIMELY BROUGHT, ON JAN. 22, 2008. TO

THIS DATE JAN. 12, 2009, NO JUDGMENT ENTRY HAS BEEN DOCKETED ON SAID

MOTION.

{114} "IX. APPELLANT IS DUE PROTECTION FROM A PARTY IN DEFAULT

FILING ANY MOTIONS IN ANY COURT THAT ARE FRIVOLOUS, MALICIOUS AND

FOR THE PURPOSE OF DELAY OF RIGHTFUL AND PROMPT ADJUDICATION."

{115} We find Appellant's first assignment of error to be largely dispositive of this

appeal. In his first assignment of error, Appellant maintains the Firm could not appear

to file its answer after the expiration date for doing so. Because all subsequent

proceedings in the trial court were substantially affected by the trial court's decision on

this issue, we find all but one of Appellant's other assignments of error are premature

given our disposition of this assignment of error.

{116} Civ.R. 12(A)(1) provides, "(t)he defendant shall serve his answer within

twenty-eight days after service of the summons and complaint upon him." Additionally,

Richland County,.Case No..08CA334 6

Civ.R. 6(B) authorizes the extension of the answer date beyond the twenty-eight day

deadline specified in Civ.R. 12(A), providing, in relevant part:

{117} "When by these rules or by a notice given thereunder or by order of court

an act is required or allowed to be done at or within a specified time, the court for cause

shown may at any time in its discretion (1) with or without motion or notice order the

period enlarged if request therefore is made before the expiration of the period originally

prescribed or as extended by a previous order, or (2) upon motion made after the

expiration of the specified period permit the act to be done where the failure to act was

the result of excusable neglect ***."

{118} Thus, a trial court has discretion to grant an extension of time for cause

shown, if a party requests the extension before the filing deadline passes. However,

once the applicable filing deadline passes, the trial court only has the discretion to grant

an extension upon motion and demonstration of excusable neglect.

{119} In the instant action, Appellant filed his Counterclaim on November 30,

2006. As noted by the magistrate, the Firm was required to file its answer or request an

extension on or before January 2, 2007. The Firm neither filed an answer nor requested

an extension of time before that deadline, but rather filed its Reply to Counterclaim on

January 8, 2007. The reply was not accompanied by a motion for leave to file out of

time, as it should have been. Civ.R. 6(B)(2). Although Civ.R. 6(B) grants broad

discretion to the trial court, its discretion is not unlimited. Miller v. Lint (1980), 62 Ohio

St.2d 209, 214, 404 N.E.2d 752. Some showing of excusable neglect is a necessary

prelude to the filing of an untimely answer. Id. See, also, Davis v. Immediate Med.

Serv., Inc. (1997), 80 Ohio St.3d 10, 14-15, 684 N.E.2d 292. We have found nothing in


the record before this Court to demonstrate the Firm's failure to timely answer

Appellant's counterclaim was the result of excusable neglect. Accordingly, it was

improper for the trial court to consider the Firm's reply.

{120} We now turn to the trial court's denial of Appellant's motion for default.

{121} In Miller v. Lint, supra, the Ohio Supreme Court held a defendant was

subject to default judgment pursuant to Civ.R. 55(A) when the defendant failed to file his

answer within twenty-eight days after service of the summons and complaint and

subsequently filed a late answer not "upon motion" and without a demonstration that

"the failure to act was the result of excusable neglect," as required by Civ.R. 6(B)(2). Id.

at 214. Accord, McDonald v. Beny (1992), 84 Ohio App.3d 6, 9-10, 616 N.E.2d 248;

Farmers & Merchants State & Sav. Bank v. Raymond G. Barr Ent., Inc. (1982), 6 Ohio

App.3d 43, 43=44, 452 N.E.2d 521

{122} Civil Rule 55 governs default judgments, and provides, in relevant part:

"When a party against whom a judgment for affirmative relief is sought has failed to

plead or otherwise defend as provided by these rules, the party entitled to a judgment

by default shall apply in writing or orally to the court * * * If, in order to enable the court

to enter judgment or to carry it into effect, it is necessary to take an account or to

determine the amount of damages or to establish the truth of any averment by evidence

or to make an investigation of any other matter, the court may conduct such hearings or

order such references as it deems necessary and proper and shall when applicable

accord a right of trial by jury to the parties." Civ.R. 55(A).


{123} Pursuant to the holding in Miller, supra, we conclude the trial court abused

its discretion by considering the Firm's Reply and thereby summarily denying

Appellant's motion for a default judgment.

{124} Accordingly, we sustain Appellant's first assignment of error. Upon

remand, we direct the trial court to proceed to determine Appellant's Motion for Default

Judgment in accordance with Civ.R. 55, this opinion and the law.

IV

{¶25} In his fourth assignment of error, Appellant asserts he had the right to

amend his counterclaim once, as the matter of law, because no answer had been filed.

We agree.

{126} Civ.R. 15(A) provides:

{127} "A party may amend his pleading once as a matter of course at any time

before a responsive pleading is served or, if the pleading is one to which no responsive

pleading is permitted and the action has not been placed upon the trial calendar, he

may so amend it at any time within twenty-eight days after it is served. Otherwise a

party may amend his pleading only by leave of court or by written consent of the

adverse party. Leave of court shall be freely given when justice so requires. A party

shall plead in response to an amended pleading within the time remaining for response

to the original pleading or within fourteen days after service of the amended pleading,

whichever period may be the longer, unless the court otherwise orders."

{128} In light of our disposition of Appellant's first assignment of error, we hold

Appellant had a right to amend his counterclaim as a matter of law. Accordingly, we

sustain this assignment of error.


{129} Because the amended counterclaim was filed before Appellant's Motion

for Default Judgment, upon remand, we direct the trial court to consider any possible

impact the amended counterclaim may have upon Appellant's Motion for Default

Judgment.

II, 111, VI, VI1, VIII, and IX

{130} In light of our disposition of Appellant's first and fourth assignments of

error, we find any discussion of Appellant's remaining assignments of error to be

premature and unnecessary.

{131} The judgment of the Mansfield Municipal Court is reversed and the matter

remanded for further proceedings consistent with this Opinion and the law.

By:Hoffman, J.

Gwin, P.J. and

Wise, J, concur

s/ William B. HoffmanHON. WILLIAM B. HOFFMAN

s/ W. Scoff GwinHON. W. SCOTT GWIN

s/ John W. WiseHON. JOHN W. WISE


IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIOFIFTH APPELLATE DISTRICT

CALHOUN,KADEMENOS,&CHILDRESS CO., L.P.A.

Plaintiff-Appellee

-vs-

RANDY SHEPHERD

Defendant-Appellant

JUDGMENT ENTRY

Case No. 08CA334

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

judgment of the Mansfield Municipal Court is reversed and the matter remanded to that

court for further proceedings consistent with our opinion and the law. Costs assessed

to Appellee.

s/ William B. HoffmanHON. WILLIAM B. HOFFMAN

s/ W. Scott GwinHON. W. SCOTT GWIN

s/ John W. WiseHON. JOHN W. WISE


CALHOUN, KADEMENOS & CHILDRESS CO., L.P.A. CASE #06-CVH 3913

PLAINTIFF'S

-VS-

RANDY D. SHEPHERD . JUDGMENT ENTRY

DEFENDANT

This matter came on for Hearing the 8`h day of September, 2009 pursuant toRemand by the Ohio Court of Appeals, Fifth Appellate District.

The Court finds that all parties were duly notified and present at the Hearing.Further, the Court fmds that Defendant-Appellant's Counter-claim and subsequentamendment thereto were reviewed herein and that Defendant-Appellant was entitled, as amatter of law, to amend same. Further, the Court finds that the monetary relief stated inthe amended counter-claim, and sought by Defendant-Appellant, exceeds the jurisdiction

of the Court.

IN VIEW OF THE FOREGOING, IT IS HEREBY ORDERED that the

herein matter be certified to the Richland County Court of Common Pleas and that said

transfer be made forthwith.

SO ORDERED.

JP:mmt

cc: Calhoun, Kademenos & Childress Co., L.P.A., Plaintiff's

Randy D. Shepherd, Defendant 3

^^ o

^^...a

C^ U


IN THE COMMON PLEAS COURT OF RICHLAND COUNTY, OHIO

Calhoun, Kademenos & Childress Co., L.P.A.: Case No. 2009 CV 1434

Plaintiff, Judge Henson

vs.

RandyD. ShepherdFINAL JUDGMENT ENTRY

Defendant.

On May 7, 2010 this Court issued a Judgment Entry requiring Defendant/Counterclaimant

Randy Shepherd to provide evidence to support his Counterclaims against Plaintiff Calhoun,

Kademenos & Childress Co., L.P.A at a May 26,2010 hearing. The May 7, 2010 Judgment Entry

stated further: "The Court also requires Defendant/Counterclaim Plaintiff Randy Shepherd to

provide clear and convincing evidence of all damages claimed."

On May 26, 2010 the hearing was held before the Court. Defendant/Counterclaimant

Randy Shepherd was present as well as PlaintiffCounterclaim-Defendant Calhoun, Kademenos &

Childress Co., L.P.A. However, Mr. Shepherd brought no evidence to support his January 23, 2007

Amended Counterclaim, or any of the damages claimed therein. When given the chance to present

Journalized on the court'sdock


evidence to this Court, Shepherd stated he was "resting", and asked the Court for a final appealable

ruling. No witnesses or exhibits were introduced by Mr. Shepherd.

Therefore this Court orders that all pending claims, counterclaims, motions, filings, and any

other issues that are before this Court in connection with this case, including, but not limited to

Shepherd's Counterclaim as amended, originally filed in the Mansfield Municipal Court and

transferred to this Court October 2, 2009, are hereby dismissed. There being no just cause for delay

this judgment is final pursuant to Ohio Civil Rule 54(B). Court Costs are assessed against

Defendant/Counterclaimant Randy Shepherd.

IT IS SO ORDERED.

Submitted by:

Louis H. ' ert (#OQ660dS^Attorney for Plaintiff.

h ar^c1y Sh epher^

SERVBD BY Depuuty Cleric:--------

On the_.--day of_------®-,--^'®

2

RICHLAND COUNTY COURT OF COMMON PLEAS50 Park Ave East Mansfield, Ohio 44901

Calhoun Kademenos ChildressLPA Case No. 2009CV 1434

6 West third StreetMansfield, Ohio 44902 ^ ^Plaintiff

VS.

Randy Shepherd3558 Alvin RoadShelby, Ohio 44875Defendant

Notice of Appeal

Notice is hereby given that Randy Shepherd, defendant, hereby appeals to the Court of Appeals ofRichland County, Ohio, Fifth Appellate District from the Final Judgment Entry, from the order OfJudge James Henson civ. R. 54 b entered in this action on the ^q of June 2, 2010

Randy Shepherd Appellant (Pro Se) Andrew Medwid 00801393558 Alvin Road 6 West Third Street Suite 110

Shelby Ohio, 44875 P.O. Box 4419-545-1096 Mansfield Ohio 44901-0004

419-961-8058Council for Plaintiff


OAIO FIFTH DISTRICT COURT OF APPEALSDOCKETING STATEMENT

.;-WARNING: A time-stamped copy oft6e judgment being appeated must be attaehed to this Stateme^

WARNIN : All requested "mformatioa must be provided Faibae to Sle a folly completeddocketing statem0nl; Rype^J

or legibly printe, may resultmihi" appeal being dismissed by the Conrt aua sponte.

Randy Shepherd

3558 Alvin Road, Shelby Ohio 44875

Appesi No.

Trial CmatNo. 2009cy1434Trw court Jwp James Henson

PlamtiffAppellaotAppeIlee (Curle Desigoat3on)

-wP^gs ^^^ Andrew Medwid 0080139

-Calhoun, Kademenos and Chilldress L.P.A. Phone 419-961-8058

Defandm,Ya Co,msel Pro Se

6 W. 3rd street suite 200 Mans. Ohio 44902 pyow 419-545-1096

Defondaat Appellant Appellee (Circle Designation)

A. DATE& OfthejndgmentbemgappealedJune 2, 2010 OfyhefdingoflheNoriaeofAppeat July 2, 2010

B. pgOBA$T$ LSSUES FOR REVIEW: (Iwludmg ebarg^ ^mbiind CM) Usurped Judge, unlawfld substltution of council,

Denial of Jury trial, Denial of default Judgment, Exparte Communication, Denial of equal protection,

Vexatious Litigation,lVlalpractice, Rights status denied, Unlawful Servitade, Failure to record hearing.

C. TFIIS ApPSAL SHOULD BEASSIGNBD TO: (Check One) (See Loc. App. B. 6(B) mid App. R 11.2)

The reguler aateudaaz.

The accalerated celoodac, (See Loe. R. 6(B))

The egpedited aahmdar. (See SectimF(3) an page two of this docdceting s►atementandApp. 8.11,2)

^--^ erkto prepare and uansferthe docketD. THBRECORD: Tlris1)ockelmgS^em^twiIIsesveasapraecipe to the el

mid joumal emriea.please7ndicatelheType ofRecordtobeF3led: (CheckOne).

D:ocket snd7ournal Bnaies Only, no hansanPt ofProwAnIgs•

E] Full urElpmtial Zlraesctipthas bean Prepated alteady. lfpartial, see App.R 9(B)

Statementofffie reaord pm'soIBtto AppR 9(C).

Agreed Stalementofihe Recordputsoantto App.R 9(D).

Ttana^x'iptofPnoeeedings. qLeas9lan^'^an100pages.Full orFWtwtrm.Jpthas been oadered. Ifpaetiat, see App.R. 9(B).

WABI^TG: lfatcmnscriptofpmceadmgaianeeded,aeopyofthenoficeo€appeal^ repmw ^^ ^plaCCIpOlimstbe,

a^vedbyAppeIlantontheaomtn.poiroeta AcopyofStep;secipe ^ ^this Cowt showing sarvice of9w notice of appeal and praecipe upon fia eolnt reporirs.

NAb1B OF COURT REPORTER, DATE SERVED

Pleae ym with particularity wlnch esldbils and/or evidenea, otlux tbas pVr exbibrts or doo°mentary evidenee not ofimnsoal bulk or weight, the patties ieqaest be tcrosoiftd as part of 8ie record on appeaL (See AFP.R. IO(B); Loc.App.R

$(C1)

'3

E. CRIlvIlNAL CASE

1. CJiARGE2. DEGREE: Misdemeanor FAW3. Is tbis an app^¢fprobationrevo . I_..IYes [lNo. Tfyes, what was the originat chatge and senfence?

4. ls this an appeal ofPost Conviction RelieP! (RC.295321) QYes E]No. lfyes, was ahearing held in the trial courl7

QYes No. WLstwastheoriginalcbazge^dseMence?5. Type of^peal: (Check Ctae} ^, A cel ^^^t (I2 2945.67(A))Cs pp . .Appeal as of Rigbt

bY Leava of Court (App1i, 5) State's APpealby Leave o€CourtAu PP.

6. y4gusanappcelSorreviewofswrtenoiagpm'sinttDR.C.2 . 8? qYes MNo-

Wascotmsalappointedforiria(? rs7.8. Was counsel appointedfor es o.

9. Was a stay of se^ce reqaesfed'm trial co Yes ONo Ifyes, stay was: GRANTSD DENIED PENDING

F. CIVIL CASE

1_ACH0N BRCUGiiT 1N LC•Wlsp, COUgT created by the court administration On Oct 2 2009 lacldng complaint, cerufied docket

or certified judgment Entry from a different Court No lawful cause for the achon to be established, docketed or recieved.

2. Did 8tis acticat ^m aTrial Coat (ir in an Admio9shatrve Agency? 7ndicate wbicL.

Fl Comtt.y Cotut []Mimicipal Court 4,/ Common Pleas Coiat DAdustrustUlIPveAgeuc,y

^_"MProbate Csnut M Famity Coart Juvenle Cotut

3. Mustffiis case by aspedmed as bemg one ofthe foIIowmg'rypes: q'1'es rN'o. lfyas, check ana of 5ie followiug.

Appesl under determmation oflacal fiseal emergancybrougbtby mimicipal coiporation RC.118.04(C)

Appeal brougbtby.minor cfitld tmderRC 2505.073

Appeaiinvolvmg mafters of cltild custody, allocaEion ofpMentairigW or resPousibfteS' or designation of a du7d's place of

.reyidenne and legal custodisn under RC.3109.04Q3) sndR.C. 3109.06.

C] Appeal from orde[s gaining or 4an3'm8 (1) tatmroetion of patental right,s or (2) adoption of a minor cln'ld.(See App. R. 11z

effecdve inly l, 2000) See Loc. R 7

C] Appeal &om orders rogazd"mg dependcet, abnsed, neglected, unruly, or delinquent children.

(SeeApp.R112effwNvoJulyl,200D) SeeLoc.R7

Q Elce13on <wntests as provided'm R.C. 3515.08

4. DoyouknowofencAtarcasepmftm9cisCamtwbickraisesthessmeissue(s)? uYes No. lfyes;plem cite case(s).2010ca0038 has some of the same issues and was presided over by Judge Henson, scheduled or oral arguments July 13, 2010

5. Havoyoadetemined'mgoodfaidithata,ejadgmentappealeidrmmisasnalappealsbloorderl (R.C.2505.02)

Y. qNo.I

6. Did 9te judgmantdispoe of all caims by and against aU pmrkies7 OYes [:]No.

7. Ifnot,isthereaneapreasdelorutinsRiontbatthereis"nojustrassonEordelay"? (Civ.R.54(B)) aYes qNo.

8. Was a stay of judgment ra4uestsd biuM c°art2 qYbs Zìo Ifyos, stay was: GRANTED DENIED PETIDING

CERTIFTCATION

I cerEdy 8tatthe informetion provided on this dockeling statementis aceUsate.9

Signatiue of C9 êl (or party' represented by Counsel)8c SnpremôurtReg No.

Amended. Effective January 1, 2QQ8

n/

2

IN THE COMMON PLEAS COURT OF RICHLAND COUNTY, OHiO

Calhoun.Kadcmenos & Childress Co., L.P.A.: Case No. 2009 CV 1434

Plainfiff, . JudgeAenson

RandyD. Shepherd

Defcndant.

On May 7, 2010 this Court issucd a Judgment Entry requiring Dcfend•anUCounterolaimant

Randy Shepherd to provide evidence to support his Counterclaims against PlaintiffCalhoun,

Kademenos & Childress Co., L.P.A at a May 26, 2010 hearing. The May 7, 2010 JudLqnent Entry

stated further: "The Court also requires Defendant/C:ountcrclaim Plaintiff Randy Shepherd to

pmvide clear and convincing evidence of all damages claimed."

On May 26, 2010 the hearing was held before the Court. DefendanUCounterotaimant

Randy Shepherd was present as well as Plaintiff/Counterclairn-Defendant Calhoun, Kademenos &

Childress Co., L.P.A. However, Mr. Shepherd brought no evidence to support his January 23, 2007

Antended Countorclaim, or any of the damage.s claimed therein. When given the chance to present

Jourualized on the eourt's^dockeFon.1

Depa y Clerk

evidenec to this Court, Shepherd stated he was "resting", and asked the Court for a final appealable

ruling. No witnesses or exhibits were introduecd by Mr. Shepherd.

Therefore this Court orders that all pending claims, counterclaims, motions, filings, and an,v

other issues that are before this Court in connection with this case, including, but not limited to

Shepherd's Cormt¢rclaim as amended, originally filed in the Mansfield Municipal Court and

transferred to this Court October 2. 2009, are hereby disinissed. There being no just cause for delav

this judgment is final pursuant to Ohio Civil Rule 54(B). Court Costs are assessed against

Dctendant/Counterclaimant Randy Shepherd.

IT IS SO ORDERED.

Submined by:

Louis H. Oert (#0060Attomey for Plaintiif:

h andy5hephe.rCl^

SBSNED BY DnPury ( lerk:--- - '

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