IN THE SUPREME COURT OF OHIO

WILLIAM W. BRIDGE, III,

Appellant,

Case No. 06-2296

On Appeal from the Franklin County Court ofAppeals, Tenth Appellate District

V.

PARK NATIONAL BANK andTHOMAS J. BUTTON,

Appellees

Court of Appeals Case No. 06 APE-2-118

BRIEF OF APPELLEES PARK NATIONAL BANK AND THOMAS J. BUTTON INOPPOSITION TO JURISDICTIONAL MEMORANDUM

J. Kevin Cogan (0009717)(Counsel of Record)J. Todd Kennard (0068441)Jones Day325 John H. McConnell BoulevardSuite 600Columbus, OH 43215-2673Telephone: (614) 469-3939Facsimile: (614) 461-4198jcogan@jonesday.comjtkenndard@jonesday.com

James R. Havens (0012121)HAVENS LIMITED141 East Town Street, Suite 200Columbus, OH 43215Telephone: (614) 228-6888Facsimile: (614) 228-6878jhavens@havenslimited.com

Attorneys for Appellees Park NationalBank and Thomas J. Button

James R. Douglass (0022085)(Counsel of Record)John A. Huettner (0039479)James R. Douglass Co. LPA20521 Chagrin Blvd., Suite 200Shaker Heights, OH 44122Telephone: (216) 991-7640Facsimile: (216) 991-7641£redcoach@aol.com

Attorneys for Appellant William W. Bridge, III

JAN °I o 2QN

IUldl(;CIA 4 GLCr{Ctii!lr'^l^IfNtCit iiI o1=C9'rllo

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This case presents nothing new that would warrant this Court's review. The

unanimous decision of the Court of Appeals rejected Appellant's ("PlaintifY') position and

simply applied the Civil Rules' and Appellate Rules' plain language to the issue presented. Any

fiarther review of this matter would only further delay a determination on the merits, which

Plaintiff has repeatedly tried to avoid for several years in multiple lawsuits. See Marion Prod.

Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 271 ("[c]ourts must also remain mindful of

the admonition that cases should be decided upon their merits, where possible, rather than on

procedural grounds").

As the Court of Appeals recognized in reversing the Trial Court, the Trial Court

failed to do substantial justice in this case when it entered a "default" judgment even though the

Appellees ("Defendants") had vigorously defended against Plaintiff's claims in two different

lawsuits. This proceeding arises out of the second lawsuit that Plaintiff filed against Defendants,

Park National Bank and Mr. Button, who is one of the Bank's executives. Both lawsuits relate to

a contract for the restoration of a hotel after a fire. The hotel's owner terminated that contract

based on his dissatisfaction with Plaintiff s progress in the restoration, not based on any alleged

tortious interference by the Bank or Mr. Button.

After Defendants moved for summary judgment in the first lawsuit, Plaintiff

dismissed his complaint, only to refile it later. The Trial Court then granted Defendants' motion

to dismiss the second complaint pursuant to Civil Rule 12(B)(6). The Court of Appeals, in the

first appeal, reversed the dismissal, and the parties then engaged in extensive discovery as they

prepared for trial in front of a different Judge.

Following the first remand, the case was reassigned to a new judge. (See Courtof

Appeals' 10/31/06 Opinion ("Opinion") at ¶ 5(attached to Plaintiff s memorandum).) The Trial

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Court did not issue a new case scheduling order, and no other trial schedule deadlines were set at

the time. (See id) After Defendants' lead attorney announced his intent to leave his firm, a new

attorney took over the case and properly filed a notice of appearance and substitution of counsel.

(See id. at ¶ 6.)

During a telephonic status hearing in March 2004, an unidentified attorney for

Plaintiff requested additional time to conduct discovery, although the attorney failed to submit a

proposed case scheduling order as ordered by the Trial Court. (See id. at ¶ 7.) Although

Defendants' counsel contacted Plaintiff's counsel on two occasions regarding the lack of a case

scheduling order, the court ultimately set the case for trial for June 28, 2004 (but still did not

issue a scheduling order). See id.) Upon realizing that an answer had not been filed,

Defendants' counsel immediately file a motion for leave to file an answer instanter and tendered

an answer. See id. at ¶ 9.) Thereafter, on the eve of trial, Plaintiff opposed the motion for leave

to answer and moved for a default judgment, which the Trial Court granted on the day that the

trial was scheduled to begin, and over Defendants' objection. See id ) Defendants moved to

vacate the default judgment, obtain relief from the default judgment, and file an Answer instanter,

among other things, all of which the Trial Court summarily denied.

A magistrate eventually held a hearing on the issue of damages. During the

hearing, the magistrate precluded Defendants from offering evidence related to the issue of

liability and whether the alleged tortious interference caused the Plaintiff's claimed damages.

See id. at ¶ 11.) The Trial Court overruled Defendants' objections to the magistrate's

recommendation and eventually awarded Plaintiff $115,231.59 in damages. See id.)

The Defendants then filed an appeal to the Tenth District Court of Appeals.

Among other things, Defendants argued that the Trial Court erred in entering a default judgment

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because: (1) Defendants did not "default" on anything; to the contrary, they vigorously defended

against Plaintiffs claims; (2) Defendants did not miss any deadlines; (3) Plain6ffwaived any

right to obtain a default judgment; (4) the judgment entered did not comply with Civil Rule 55 or

Local Rule 55.01; and (5) to the extent that Defendants were found to have failed to timely

answer, excusable neglect existed. Defendants also identified other assignments of error on

other issues.

On October 31, 2006, the Court of Appeals issued an Opinion that unanimously

reversed the Trial Court's entry of a default judgment and remanded the case to the Trial Court

for further proceedings. The Court held that the Defendants never defaulted on an answer in this

case because "the time for [Defendants] to file their answer to the complaint did not begin to

run" merely because of the prior reversal of the granting of the Rule 12(B)(6) motion. See

Opinion at ¶ 19.) The Court overruled the Defendants' remaining grounds for reversal and other

appellate issues as moot, although each of those grounds is a basis for upholding the Court of

Appeals' decision in any event. On December 14, 2006, the Court of Appeals denied Plaintiff s

motion for reconsideration.

PLAINTIFF'S PROPOSITION OF LAW NO. 1: "THEAPPEALS COURT RULED INCORRECTLY."

The Court of Appeals' October 31, 2006 unanimous Opinion found that the Trial

Court erred in granting a default judgment after the appellate court's prior reversal of the Rule

12(B)(6) dismissal of the Plaintiff's Complaint. The Opinion held that, after the Court of

Appeals reversed the dismissal, the time for Defendants to file their Answer to the Complaint did

not begin to run because the Trial Court never entered an order overruling the motion to dismiss.

(See id.) Nor did the Trial Court ever set a deadline for filing the Answer after the prior reversal

and remand. See id.)

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Plaintiff's argument simply ignores the part of Appellate Rule 12(B) that

immediately proceeds the snippet that Plaintiff selectively emphasizes and also ignores Appellate

Rule 12(D) alto eg ther. The full text at issue provides:

When the court of appeals determines that the trial courtcommitted error prejudicial to the appellant and that the appellantis entitled to have iudement or final order rendered in his favor as amatter of law, the court of appeals shall reverse the judgment orfmal order of the trial court and render the judgment or final orderthat the trial court should have rendered, or remand the cause to thecourt with instructions to render such judgment or final order. Inall other cases where the court of appeals determines that thejudgment or final order of the trial court should be modified as amatter of law, it shall enter its judgment accordingly.

(D) All other cases

In all other cases where the court of appeals finds error prejudicialto the appellant, the judgment or final order of the trial court shallbe reversed and the cause shall be remanded to the trial court forfurther proceedings.

(Appellate Rules 12(B) and 12(D) (emphasis added).)

Plaintiff's argument is flawed and cannot be squared with the Rule's plain

language. In reversing the Civil Rule 12(B)(6) dismissal in the prior appeal in this case, the

Court of Appeals never found "that the [Plaintiff] is entitled to have judgment or final order

rendered in his favor as a matter of law." Instead, the Court simply found that the Complaint

contained sufficient factual allegations that, if true, could state a claim upon which relief may be

granted. See Opinion, Case No. 03AP-389, Bridee v. Park National Bank, et al., No. 03AP-380

(Dec. 18, 2003) (attached to Plaintiff s memorandum). Consequently, the Court merely reversed

the Rule 12(B)(6) dismissal "and remanded for further proceedings in accordance with th[e]

opinion." (Id. at ¶ 8.) Neither the Court of Appeals nor its Order did anything more. (Id.)

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That is exactly what the Court of Appeals noted in its Opinion that is the subject

of this appeal. See Opinion, at ¶ 17 ("We remanded the case for further proceedings").) The

Court likewise rejected the argument in denying Plaintiff s motion for reconsideration. (See

Mem. Dec. dated 12/14/06 at p. 3.) The Court noted that Appellate Rule 12(B) "does not

contemplate granting `judgment' in the case of a non-final interlocutory order." (Id. at ¶ 7.) As

the Court explained, the term "judgment or final order" in this context relates to judgments and

final orders defined in R.C. 2505.02, which has no conceivable application to the issue here.

See id. at ¶¶ 7-8.)

It is also what Rule 12(D), which Plaintiff never mentions, expressly requires.

See App. R. 12(D). As a treatise explains, "Lt]he phrase `all other cases' as used in this rule

means cases other than those covered in the subsection of the rule governing disnositions when a

party is entitled to iudement as a matter of law and includes reversals based on the manifest

weight of the evidence when the jury is the trier of the facts; this rule makes no provision for the

exercise of weighing the evidence and rendering a judgment or fmal order, as permitted by the

subsection of the rule governing dispositions where the judgment is against the manifest weight

of the evidence and where the court is the trier of the facts." OJur § 577 (emphasis added). The

Rule's plain language is dispositive of Plaintiff s position.

After the prior remand, the parties engaged in discovery and prepared for trial.

Never once during those proceedings did Plaintiff contend that the Court of Appeals' prior

reversal, in and of itself, required the Trial Court to enter judgment in his favor. And, he never

filed a motion requesting such relief.

Nor could Plaintiff credibly raise the argument at any point in the proceedings.

Appellate courts throughout the State frequently reverse Rule 12(B)(6) dismissals. It is hardly

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unusual for an appellate court to "remand[] for further proceedings in accordance" in those cases,

just as the Court of Appeals did in its prior ruling in the first appeal. Neither the Appellate Rules

nor the courts' practices require trial courts to enter judgments in a plaintiffls favor simply

because he is successful in opposing the dismissal of his Complaint at the pleadings staee. Sce

App. R. 12.

Plaintiff's second argument is that the prior remand "modified" the Trial Court's

ruling on Defendants' motion to dismiss "as a matter of law." (Mem. at 3.) Again, that ignores

the plain language of Appellate Rule 12(A) and the Court of Appeals' decision in the first appeal.

The prior appellate panel never "modified" the judgment based on the Rule 12(B)(6) motion "as

a matter of law." It did not change a damage award; it merely reversed a Rule 12(B)(6) ruling.

The Court obviously never found that Plaintiff was entitled to judgment as a matter of law.

Plaintiff cites nothing that supports his position, a position that is contrary to

Appellate Rule 12's plain language. Instead, Plaintiff cites Mannins, for example, but that case

involved the application of the law of the case doctrine to a case involving factual determinations

related to the amount of fees to be paid, when the lower court denied fees a second time. See

2005 WL 2206732, at ¶¶ 32-35. The Court of Appeals' prior Order in this case, in contrast,

simply found that PlaintifPs claims, if true, could state a claim for relief. The Court made no

legal rulings beyond that, and the Court obviously reviewed no factual determinations at all

because the case was presented as an appeal from a Rule 12(B)(6) dismissal. This case simply

has nothing to do with the issues present in Mannine or the "law of the case" doctrine Plaintiff

references. In short, Plaintiff's unsupported view is contrary to the prior remand Order, contrary

to the Appellate Rules' express language, and should be rejected.

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PLAINTIFF'S PROPOSITION OF LAW NO. 2:"FRANKLIN COUNTY RULE 15.01 SHOULD HAVE BEENAPPLIED: '

Plaintiff next claims that a local rule provided a deadline for an answer when the

appellate court reverses a Rule 12(B)(6) dismissal. Plaintiff misconstrues that local rule. That

Rule expressly applies only where, among other things, the Trial Court enters an "entry requiring

or ¢rantinQ leave for the filing of pleadings unless otherwise specified on the entry approved by

the Trial Judge." Franklin Cty. L.R. 15.01 (emphasis added). Here, there was never an "entry"

by the Trial Court that would have triggered the Rule, even if it otherwise somehow applied.

Plaintiff's Hooten and Pau h cases do not address the local rule on which Plaintiff relies. In

short, Plaintiff's argument is contrary to the rule Plaintiff cites and is wholly unsupported.

PLAINTIFF'S PROPOSITION OF LAW NO. 3:"DEFENDANTS WAIVED THEIR `NO ANSWER DATE'ARGUMENT."

Plaintiff next contends that Defendants somehow waived the right to assert that

the default judgment should not have been entered. (Mem. at 6-9.) Again, that argument goes

nowhere. The Court of Appeals soundly rejected that argument, both in reversing the default

judgment that the Trial Court granted and in the ruling denying Plaintiff's motion for

reconsideration. See 12/4/06 Mem. Dec. at ¶ 9 (Defendants "vigorously opposed the grant of

default judgment both in the trial court and on appeal.").) In any event, Plaintiffs argument is

simply wrong, as the Court of Appeals determined. The Defendants reneatedlv and expressly

argued below that the default judgment was improper. Defendants objected to a default

judgment from the very first time they were put on notice of a motion for a default judgment

after they had been defending against the Plaintiff's claims for years in two different lawsuits.

Defendants also objected from their very first written submission on the issue. See

Memorandum In Support of Defendants' Motion to Vacate Default Judgment, Motion for

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Reconsideration, and Renewed Motion for Leave to File Answer Instanter (filed on 7/9/04);

Defendants' Reply Memorandum in Support of Motion to Vacate Default Judgment, Motion for

Reconsideration, and Renewed Motion for Leave to File Answer Instanter, Motion for Relief

from Judgment, and Motion to Stay Damages Hearing, Or, In the Alternative, For Continuance

(filed on 7/28/04).)

Plaintiff's argument confuses a waiver based on a failure to make an evidentiary

objection or objection to a jury instruction with a claimed failure to make an argument at oral

argument when a party fully briefs an issue in the trial court. Defendants argued below --

repeatedly -- that Plaintiff failed to comply with Local Rule 55.01, for example, among other

things. (See Brief filed March 6, 2006 and citations.) That Defendants did not recite Rule 55.01,

for example, during oral argument on the hearing for a default judgment does not constitute a

waiver. See Linden Med. Pharm. Inc. v. Ohio State Bd. of Pharma., Franklin App. No. 05AP-

532, 2005-Ohio-6961, at ¶¶ 8-13 (no waiver where party had no "inconsistency" in position

between briefs and oral arguments at hearing and other party failed to meet its burden of

demonstrating prejudice). At the first opportunity Defendants had to submit written briefs on

Plaintiff s motion for a default judgment, the Defendants argued that Plaintiff s failure to comply

with Local Rule 55.01 precluded a default judgment, and raised below all of the issues that they

have presented on appeal in front of the Trial Court. See supra.

Moreover, the fact that an oral hearing on Plaintiff's default judgment motion was

held just one business day after Plaintiff filed the motion -- and before Defendants had an

opportunity to respond in writing -- merely highlights the reasoning behind the decisions of this

Court, and appellate courts in Ohio that require reversal based on the failure to comply with Civil

Rule 55's seven-day notice requirement. See, eg, Alban Eauip. Co. v. Styline Structures

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General Contractors, Inc. (Nov. 29, 1988), Franklin App No. 88-AP-517, 1988 WL 129198, at

*2 ("strict compliance with the Civ. R. 55(A) notice requirement" is "an essential element of due

process"). In these circumstances, Defendants were not required during oral argument to recite

every defense they had available when Plaintiff sought a default judgment on one business day's

notice, when Plaintiff cannot claim (much less show) any prejudice and where Defendants

indisputably raised the issues in their first briefing opportunity.

PLAINTIFF'S PROPOSITION OF LAW NO. 4: "THETRIAL COURT SHOULD RAVE BEEN AFFIRMED."

Plaintiff s final proposition appears to contend that the Court of Appeals should

have used an abuse of discretion standard of review. (Mem. at 9-10.) The appellate court's

review of the construction of the Civil Rules and the Appellate Rules is obviously purely a

question of law. See Alban, 1988 WL 12129198, at *4. Moreover, as explained elsewhere, the

Trial Court erred (on multiple grounds) under any standard of review that applies.

JURISDICTION SHOULD ALSO BE DENIED BECAUSE THERE AREALTERNATIVE GROUNDS FOR REVERSING THE TRLAL COURT'S GRANTINGOF THE DEFAULT JUDGMENT.

Even if the Court were to otherwise be inclined to accept Plaintiff's appeal, there

are multiple other grounds for reversing the Trial Court's judgment. Although the Court of

Appeals did not need to reach the alternative grounds in its ruling (see Opinion at 7), the Trial

Court's judgment cannot stand for additional reasons. In brief, those grounds are:

Alternative Ground No. 1:Defendants Did Not "Default" And Viaorously Defended Against Plaintiff's Claims.

Under Civil Rule 55, a party may move for a default judgment when the other

party "has failed to plead or otherwise defend." (Civ. R. 55.) Plaintiff previously admitted in a

brief that "the Defendants `otherwise defended. "' Indeed, before the Plaintiff ever moved for a

default judgment, Defendants or their counsel:

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• attended every hearing and conference scheduled by the lower court and theappellate court in the prior appeal of the Rule 12(B)(6) dismissal in this case;

• complied with every Order of the lower court and the Court of Appeals;

• answered the Plaintiff s first complaint;

• served interrogatories, requests for production, and requests for admission;

• moved to dismiss Plaintiff's second complaint;

• filed a motion for summary judgment;

• appeared for and took depositions;

• filed their appellate brief in the Tenth District in the first appeal and defendedthe Trial Court's dismissal in oral argument; and

• informallly communicated with Plaintiff's counsel, including making repeatedrequests to have Plaintiff's counsel submit a proposed scheduling order.

Having defended the lawsuit, the Defendants were not in default. See Manheim Auto. Fin. Svcs.,

Inc. v. E.M. Sales. Inc., Franklin App. No. 04AP-701, 2005-Ohio-4248, at ¶ 22 (reversing

default judgment where defendant "had entered numerous appearances" before second default

judgment and case had "a convoluted procedural history"); Fontanella v. Ambrosio, Trumbull

App. No. 2001-T-0033, 2002-Ohio-3144, at ¶ 24.

Alternative Ground No. 2:The Plaintiff Waived Any RiEht To Obtain A Default Judgment.

The Trial Court's entry of a default judgment was also erroneous because the Plaintiff

waived his right to seek a default judgment. Local Rule 55.01 of the Franklin County Court of

Common Pleas supplements Civil Rule 55 by requiring a party to apply for a default "within 30

days after the date upon which the defaulting nartv should have pled or otherwise defended."

Local Rule 55.01 (emphasis added). In this case, under the Plaintiff's theory, the Defendants'

Answer was due in early January, 2004 (fourteen days after this Court entered its decision in the

first appeal on December 19, 2003). But the Plaintiff waited approximately 180 davs, until June

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25, 2004, to file the motion for default judgment, in contravention of the local rule's express

requirements. The Plaintiff therefore waived any right to seek default judgment, which is

another basis for reversing the judgment. See L.R. 55.01; Manheim Auto. Fin., 2005-Ohio-4248,

at ¶¶ 19-22 (reversing default judgment where Local Rule 55.01 was not followed, among other

things).

Alternative Ground No. 3:The Default Judement Did Not Comalv With Civil Rule 55 Or Local Rule 55.01.

The Trial Court also erred in failing to follow the procedures for a hearing on a

default judgment motion. Civil Rule 55(A) requires that a defendant who has appeared in an

action be given at least seven days advance notice of any hearing on a motion for default

judgment. See Civ. R. 55(A). In addition, under Local Rule 55.01, a defendant who has

appeared must be given written notice of the hearing on the motion along with the date and time.

See L.R.55.01.

This Court has squarely resolved the seven-day notice issue. In AMCA Int'1 Corp.

v. Carlton (1984), 10 Ohio St.3d 88, the Court reversed the entry of the default judgment because

the trial court failed to comply with Rule 55's seven-day notice requirement:

Before a defaultjudement could 12roperly be entered, then,appellant-employer, by virtue of its appearance, was entitled toreceive notice of the application for judgment at least seven daysprior to the hearing on such application. The plain language of Civ.R. 55(A) so demands.. . .

Inasmuch as the mandatory time presorintion set forth in Civ. R.55(A) was not observed by the trial court, the entry of the defaultiudgment was improoer.

Id. at 90 (emphasis added). Ohio appellate courts have reached the same result. See, e.g., Alban

Equip. Co., 1988 WL 12198, at *2 (reversing default judgment, noting that "[t]he Ohio Supreme

Court has required strict compliance with the Civ R. 55(A) notice requirement" and that the

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notice requirement is "an essential element of due process.") (quotation oniitted). Where a

"[d]efendant clearly show[s] an intention to defend" the case and "more importantly, the

defendant `appears[s]' in the case," a default judgment should be reversed. See id.; see also

Windy Hills Hardwoods, Inc. v. Caranova, Summit App. No. 21700, 2004-Ohio-1589, at ¶ 9

(reversing default judgment because the defaulted party "was not afforded the required seven

days notice before the trial court ruled on the motion for default judgment, which is in

contravention to the notice requirements contained in Civ. R. 55(A)."); CIT Group Equip. Fin.,

Inc. v. A-Al Mach. & Supply Co., Cuyahoga App. No. 83199, 2004-Ohio-990, at ¶ 9(ci6ng

AMCA; vacating default judgment and stating that "[w]ithout the requisite notice and hearing

under Civ. R. 55(A), a default judgment is void and shall be vacated upon appeal."); Albrechta &

Coble v. Baumgartner, Sandusky App. No. S-02-015, 2002-Ohio-6351, at ¶ 9(reversing default

judgment because Rule 55(A) notice requirement not followed where defendants had "clearly

appeared" by filing motion to stay). The same applies here.

Alternative Ground No. 4:To The Extent The Defendants Are Found To Have Failed To Timely Answer;Excusable Neglect Is Present Here.

To the extent that the proposed Answer was somehow untimely, excusable

neglect exists here. Rule 6(B) permits the trial court to extend the time for filing an Answer after

the prescribed time for filing has expired, upon a showing that the failure to timely file was the

result of excusable neglect. See Civ. R 6. See also Marion Prod. Credit Assn., 40 Ohio St.3d at

271 ("the proper standard by which the trial court is required to analyze a request for leave to

plead out of rule is, as set forth in the rule [6(B)], that of excusable neglect"). That the

Defendants filed their motion for leave to file their Answer before the Plaintiff moved for a

default judgment is important. Indeed, the Plaintiff never informally requested that the

Defendants file an Answer and presumably would have never even raised the issue had the

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Defendants not filed their motion for leave. See Opinion; Marion Prod. Credit Assn., 40 Ohio

St.3d at 271-72 ("[u]ntil a motion for default is filed, it is presumed that the complaining party is

not entitled to a default judgment, wliich fact serves to enlarge the discretion of the trial court to

allow a responsive pleading"; noting that it is "significant" that no default motion is pending at

the time party sought motion for leave to file an answer brief instanter and that the case "was

aggressively and attentively litigated by both sides" and that the parties had previously been

before the Court of Appeals); Evans v. Chapman (1986), 28 Ohio St.3d 132, 135 (trial court did

not abuse discretion in granting motion to file instanter, "especially in light of the fact that no

default motion was pending at the time"); Faith Elec. Co. v. Kirk (May 10, 2001), Franklin App.

No. OOAP-1186, 2001 WL 491754, at *2-3 (discussing Evans and vacating default judgment and

finding trial court abused discretion in denying motion for leave where no prejudice to plaintiff,

no pending motion for default judgment, and where party had "mistakenly believed" answer was

due later); Sidenstricker v. Miller Pavement Maintenance. Inc., Franklin App. Nos. OOAP-1 146,

OOAP-1460, 2001 WL 1286419, at *5 ("When a party answers out of rule but before a default is

entered, if the answer is good in form and substance, a default should not be entered.")

(quotation omitted). The reasoning of all those cases applies four-square here.

In short, in order to reinstate the Trial Court's judgment, the Court would have to

overrule each and every one of the altemative grounds for reversal. See Clark v. Stewart (1933),

126 Ohio St. 263, 272 (court can consider other grounds for affirming appellate court's reversal

of trial court). Plaintiff s memorandum ignores all of the alternative grounds for reversal of the

Trial Court. At this point, the Court should simply allow the parties to proceed to a

determination on the merits, especially given the fact that Plaintiff does not dispute that

Defendants could assert meritorious defenses.

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MR BUTTON SHOULD NOT BE A PARTY TO ANY FURTHER PROCEEDINGS.

Finally, the Court should not accept any appeal related to claims against

Mr. Button. Plaintiff failed to list Mr. Button in the Notice of Appeal to this Court, on the cover

of Plaintiff's brief in his jurisdictional memorandum, or the Case Information Sheet. Mr. Button

reserves the right to file a motion related to these issues, at the appropriate time and if necessary.

See Hosfelt v. Miller (Nov. 22, 2000), 2000-Ohio-2619, Jefferson App. No. 97-JE-50, 2000 WL

1741909, at *3 (refusing to consider claim against third party defendant where notice of appeal

did not identify defendant, did not list defendant as being served, and omitted defendant on cover

of brief, among other things).

Respectfully submitted,

^& -J^J. 16kvin Cogan (0009717)jcogan@jonesday.comJ. Todd Kennard (0068441)jtkennard@jonesday.comJONES DAY325 John H. McConnell Blvd., Suite 600Columbus, OH 43215-2673Telephone: (614) 469-3939Facsimile: (614) 461-4198

James R. Havens (0012121)jhavens@havenslimited.comHAVENS LIMITED141 East Town Street, Suite 200Columbus, OH 43215Telephone: (614) 228-6888Facsimile: (614) 228-6878

Counsel for Appellees Park National Bankand Thomas J. Button

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Brief of Appellees Park National

Bank and Thomas J. Button in Opposition to Jurisdictional Memorandum was served via

ordinary mail, postage prepaid, upon James R. Douglass and John A. Huettner, James R.

Douglass Co. LPA, 20521 Chagrin Blvd., Suite 200, Shaker Heights, OH 44122 this 16th day of

January, 2007.

/ C)Y(C ^ A ANe of the Attorneys Representing Appellees

Park National Bank and Thomas J. Button

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