IN THE SUPREME COURT OF OHIO

State of Ohio, ex rel, Randy Shepherd

3558 Alvin Rd., Shelby Oh. 44875

Relator

V.

Case Number 08-1367

Original Action in Mandamus

Judge Jeffery Payton,

Magistrate Donald Teffner et al.,

Respondents

MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS

Randy Shepherd PRO SE

3558 Alvin Road

Shelby Ohio, 44875

Relator

COUNCIL FOR

Respondents Jeffery Payton, Donald Teffner

David L Remy, Law director

30 North Diamond Street

Mansfield, Ohio 44902

AUG, 11 t:'tl' :7

CLERKOF COURTSUPH^Mf: CQUHT OF OHIO

MEMORANDUM IN OPPOSITION TO RESPONDENTS' MOTION TO DISMISS

STATEMENT OF FACTS

The Case known as Mansfield Municipal Court Case number 2006cvh03913 was filed on

Nov. 1, 2006. The Relator was served at his normal place of residence on Nov. 7, 2006

with summons to appear and defend the complaint filed against him. The summons

rightfully contains a statement to the effect. If the Relator failed to answer or appear

within 28 days, Judgment by Default will be rendered against you. Both Plaintiff and

Defendant stand on equal ground before the Courts of Ohio. Except when one litigant

happens to be a Law fmn In iviansfield Ohio. The Relator answered the complaint and

filed a counter claim on Nov. 30, 2006. The Plaintiff was served with the counter claim

on Nov. 30 2006. Civ. R. 5(b) The Plaintiff had 28 days to respond to Counter claim. Civ

R 12.a.2. The Plaintiffs' last day to respond was Dee, 28 2006. At no time prior to Deo.

28, 2006 did the Pla.intiff appear to defend the counter claim or to request an extension of

time to do so. The Plaintiff entered a plea of guilty to al1 averments of the Counter Claim

at close of business on Dec. 28, 2006. On Dec. 29, 2006 it became the duty of the clerk

to reject any and all conveyances from the Plaintiff. S. Ct Prac R XIV, Civ r. 83. The

plaintiff stands in default Civ. R. 12.a.2 and Civ R 55 since close of business Dec. 28,

2006. Any document filed by the clerk and or accepted read and or ruled on by any

member of the Judiciary is in direct violation of the rules of Practice as Promulgated by

the Supreme Court of Ohio and the rules of Civil Procedure. Respondents' have

continually denied to grant a default Judgment in this matter though law specifically

enjoins as duty to perform and written request to do so was filed with the Clerk on Feb.

12, 2007. It is more the duty of the Magistrate to issue a default Judgment entry than to

issue and or schedule a status hearing 5 days after a party pleads guilty by non attendance

to allow a parly an additional 31 days after the time allotted by Civ. R. 12 a 2 had

expired. Rel. Ex. A.

In re. Res. Ex. 5: The Relator states for the record that he was never served with this

Judgment Entry (JE). Indeed there is no proof of service included with this JE. The

Relators' answer and counter claim was FWD to Mag, Ofc. ( ref Docket 11/30/2006

entry) The Realtor does question and doubts that this JE was date stamped by the Clerk

on Jan 1, 2007, that being a legal holiday, New Years Day. Per the docket the

Magistrate issued its' own assignment for conference Jan. 2, 2007. Something in this

does not seem fair and or proper. Did the Magistrate report the issue of default to the

court as was ordered by this JE? In re. Res. Ex 9; item 6 of 16; The Respondent failed to

note on what day he issued the notification of status conference or what statute allowed

him to [ijnitiate said conference. Item 7 of 16; the Respondents exhibit no issue with the

Plaintiff answer being brought 11 days late. Issues of such importance were to be

reported to the Judge (JE filed Jan 1 2007). Item 9 of 16. The case was set for

conference way before the Defendant filed his motion for summary Judgment. Item 12

of 16;

The Respondents are fiilly aware of the constraints of Civil Rule 12 but fail to abide by

it. The Magistrate is fuily aware the Defendants' answer was untimely brought. The

Magistrate computes and states the last day for response to be Jan. 2, 2007 when indeed

per Civ R. 5 (b) it is on or before Dec. 28, 2006 28 days after service. If there exist doubt

as to service vs filing in the mind of the Magistrate, then the Magistrate must hold a

lawyer (Plaintift) to the higher standard. The higher standard being that the Plaintiff was

served with counter claim via U.S. Regular Mail on Nov. 30, 2006 Item 14 of 16: The

Relator only relies on the Rules of practice to be followed in all courts Civ. R. 83. The

Magistrate appears convinced otherwise as he states the Rules of practice as promulgated

by the Supreme Court has no application to pracfice in the Municipal Court of Mansfield

Ohio. All local rules of practice must be consistent with the Civil Rules and with other

rules promulgated by the Supreme Court. Civ R. 83 (Ohio Constitution 4.05 A 3 b) Item

16 of 16; The Relator did not wish to add parties in his amended counter claim and it was

brought after the Plaintiff was in default and could not submit its answer. Therefore no

answer could be served on Jan. 5, 2007 or filed on Jan 8 2007. Respondent Payton being

an administrative Judge having fully read and considered this magistrates decision did

also know of the rules of practice and of the untimely filings by the Plaintiff as presented

in Relators' objection to Magistrates Decision timely filed April 17, 2007 and served

April 18, 2007 incorporated herein as Rel. ex. B The Respondent Payton, as an

administrative Judge, must answer directly to the Chief Justice of the Supreme Court for

his actions or lack there of.

In Conclusion

It is not for the Supreme Court to hear and or decide any case on its Merits. It is a

responsibility of the Supreme Court of Ohio to maintain superintendence over inferior

tribunals. It is a Responsibility to the Citizens of Ohio that the Supreme should assure

that the rules as promulgated by it are followed explicitly in all actions and in all courts.

The Municipal Court of Mansfield Ohio and its Officer have chosen to set aside many

rules as promulgated by the Supreme Court and have delayed prompt adjudication in the

action known as 2006cvh03913. This case though filed on Nov. 1 2006 is still pending

this day Aug. 8 2008. The trial as set for Aug. 6 2008 was continued per motion of the

court Respondent Payton. There has been no new date to resume the trial established by

the court.

Fore the calendar year of 2005 the same Municipal Court Of Mansfield Ohio found no

less than 1635 citizens guilty by default and for the calendar year of 2006 the same court

found an additional 1457 citizens guilty by default. Rel. ex. C and D. More than 3000

common citizens in those 2 years alone have been found guilty by default. This case

should be no different in the rulings of the Municipal court. The only significant

difference is the party in default is a lawfirm and fellow colleague of the Judiciary. This

presents a question of law as to a class of people who cannot be found guilty by default in

the Mansfield Municipal CourC. If you are affiliated with a law firm you can do as you

please when it comes to [t]he niles of practice or procedure as promulgated by the

Supreme Court of Ohio and the court will accept your actions to the detriment of the

common citizen?

. Council for the respondent has been aware of this travesty of Jisstiee and the pattern of

corrupt activities of this court since March 1, 2007 and has reported it to no one. hi as

much as he has admitted to the wrong doings of the court Rel. ex. F. As Mr. Remy is an

attomey as well as law director of Mansfield Ohio it is very much his obligation to report

wrongfnl acts of the cnnrt and other Lawyers to the proper authorities.

There appears to be no adequate procedure within the corrupt Mansfield Municipal Court

of Mansfield Ohio to expeditiously issue a default Judgment against one of their own, a

Law firm. To await a ralling by this court and appeal proceedings to come to fiuition is to

delay prompt adjudication in a case where either party is clearly in default. The Supreme

Court must act with great haste to correct punish and if necessary incarcerate the officers

of this court that they may not inflict their ill will or practices on another Citizen of Ohio.

Further the Relator sayeth not

Randy Shepherd

August 8, 2008

Certificate of Service

I hereby certify that a trae and correct copy of the foregoing memorandum was sent by

Regular U.S. Mail on

August 8, 2008 to

David Remy 30 North Diamond Street, Mansfield Ohio 44902

d Sh h d R l ty ep er e a or

lYfANSFIEI.D MUNICIPAL COURTCITi'BUILDING - 30 NORTHDIAMOND STREET

hIANSFIELD, OIIIO 44902MAGISTRATE'S OFFICE 419-755-9455

NOTICE OFASSIGNME.NT

Calhoun, Kademenos & Chdtdress Co. LPA.,

Plaintaff

vs.

Itandy Shepherd,

__Defendant:(s)_-- ------

TO: Attorney James Chiidress6 West Third Street, Suite 200Mansfreld, Ohio 44901-0268419-524-6011Attorney for Plaintiff

TO: Randy Shepherd3558AIvin RoadShelby, Ohio 44875Defendant (s)

6xhl6lT 1-I

Case No. 2006 CYH3913

Judge Payton

Assigned for: Magistrate Status ConferenceMonday, January 29, 2007 at 1:20 P.M.

In Chambers

IN 1'HE 141UNICIPAL COURT OF lYIANSFIELD, OH[O, BEFORE THE HONORABLE

Magistrate Donald Teffner

Motions for continuance granted only for good cause shown. Assigned this2nd day of January 2007

By: Lynn WilsonMagistrate's Office

CERTIFICATE OF NOTICENotice mailed this date:1-2-07

Notice placed in Attomey's mailbox per local Court rule this date: 1-2-07

INTHE MUNICIPAL COURT OF

MANSFIELD, OHIO

PLAINTIFF

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

VS.

CASE N0:2006-CVH -03913

Objection to Magistrate'sFinding Of Fact andConclusion of lawCiv. R. 53 (E) 3

DEFENDANT

Randy Shepherd3558 Alvin RoadShelby, Ohio 44875

Memorandum in support of:

1. The Defendant objects to the wording of paragraph I ofMagistrate's Findings of Fact and Conclusions of Law. The onlyfact that has pertinence in this case at this time is the fact thatthe PlaintifF stands in default. The only conclusion of law asrequired of this tribunal, is a Iitigant in default has no right todefend. Given just that singular ftct and a singular conclusionof law. A default judgment is in order.

2. The Defendant did attend the status conference on January29, 2007. However, the court possessed no jurisdiction on thematter at hand at that time. The court has not possessedjutisdiction due to monetary considerations per the Defendant'sMotion for Summary Judgment #iled on January 12, 2007 ORC1901.17 (Attached).

2

3. Defendant did not demand a default Judgment on January29, 2007, but rather a summary judgment per Civ. R 56(a)(attached). The Defendant states the court was moved to doso forthwith on January 12, 2007. The Defendant maintains hisposition as to Civ. R 56 (c) inasmuch as a reasonable mind cancome to but one conclusion: 28 days to respond tocounterclaim as required by Civ. R. 12,A (1),(2)(attached) is nota matter for debate but rather a mathematical actuality.

4. The Defendant accepts as fact all portions of the Magistrate'sconclusions contained in paragraphs 2 through 5. Theseparagraphs clearly solidify the Defendant's position. TheDefendant did respond in a timely manner to the originalcomplaint. The Plaintiff failed to timeiy respond to the counterciaim. The Plaintiff is and has been in defauit since the ciose ofthe business day January 2, 2007.

5. The defendant objects to the language used in paragraph 6, asthere is no date stated as to when the parties were notified.The defendant maintains that no action on the part of thePlaintiff was taken before the expiration of the 28 day responseperiod, as prescribed in Civ. R. 12; hence the Plaintiff is indefault. Per Civ. R. 5 (a) (attached), the Magistrate has norequirement or obligation to serve any party in default. Anynotice initiated by the Magistrate to a litigant in default is anexhibi# of partiality of the court to the benefit of said defaultediitigant.

6. The Magistrate did initiate and schedule said Magistrate'sconference on January 2, 2007. The Plaintiff could not havereceived this order to attend from the court prior to being indefault per Civ. R 12. The court has an obligation to find thePiaintifF in default and should have done so January 3, 2007,which was the 34"' day after the counter ciainV defendant's pleawas filed. As per the summons issued by the Clerk of theMunicipal court of Mansfield, Ohio (attached,) °if you fail toanswer, appear or defend, Judgment by default wiii berendered against you for the relief demanded in the compiaint.o

3

7. The Magistrate's duty and obligation is to rule on default casesin a timely manner. It is and appears to be the intent of thisMagistrate not to heed the verbiage of the summons andpublished law, by finding this particular litigant (PlaintifF) indefault, and all the while picking and choosing which Rules ofCivil Procedure to enforce as suits the Magistrate's whim.

8. Paragraph 8 of the Magistrate's Findings of fact absolutelyidentifies the PlaintifPs response to counterclaim as being filedwith the Court on January 8, 2007. Paragraph 3 of Magistrate'sfindings states the Defendant filed counter claim on November30, 2006. January 8, 2007 is no less than 39 days afterNovember 30, 2006. This fact satisfies the requirement of "errorof Law or defect evident on the face of the Magistrate'sdecision." A default Judgment by the court is required by, Civ.R. 12, local Rule 3(attached), as well as the summons asissued by the Clerk.

9. In response and objection to the wording used by theMagistrate in paragraph 8 regarding the absence of a judgmententry, the defendant relies on Ohio Rules of Court; Code ofProfessional Responsibility; Canon 3 EC 3-3 (attached).In essence, a non-lawyer is not govemed as to integrity orcompetence by the same rules that govern the conduct of alawyer." All documents as signed by a pro-se litigant satisfy therequirements of affidavit,

10. Paragraph 9 of the Magistrates findings simply reiteratesthe fact that the Magistrate, in lieu of granting a rightful defaultJudgment against the Plaintiff on January 3, 2007, did exhibitparGality to the Plaintiff as well as unnecessary delay of promptdisposition by initiation and establishment of said conference onJan. 29, 2007, The preface of the Superintendence for thecourts of Ohio reads as foilowe:

aThe foundation of our govemment rests upon the confidence ofthe people in the ability of their courts to achieve liberty and justicefor all under the law. The fair, impartial, and speedy resolution ofcases without unnecessary delay maintains this confidence,

4

safeguards the rights of litigants to the just processing of theircauses, and earns the trust of the public...to serve the publicinterest that mandates prompt disposition of all causes, at al!times, in ail courts of this state."

In not granting default judgment and delaying disposition in thismatter, the Magistrate in question has exhibited a distinct lackof fairness, impartiality, and swiftness.

11. Objection to Paragraph 10. The Municipal court's positionon Civ. R. 12 must be the same as the Ohio Supreme Court'sposition on Civ. R. 12. Civ. R. 1(a)(attached) of the OhioRevised Code states directly the rules established by theSupreme Court shall be followed in all courts of this state. Civ.R, 83 (attached) Local rules of Court shall not be inconsistentwith Civil Rules of Procedure.

Further, the Defendant finds the language of this paragraph tobe more than slightly derisive and/or patronizing, two qualitiesthat have no place in such a document.

Magistrate's paragraph 11; ??

12. Defendant objects to Magistrates paragraph 12 inasmuchas the Court must issue default judgment as required by theRules of Civil Procedure 56, or Summary Judgment via Civ. R55(atkached). The Court cannot lawfully accept late/untimelyfilings by the Plaintiff as promulgated by Ohio State SupremeCourt Rules of Practice XIV I and 2 FAQ page 10, (see) TheOhio Constitution Article IV section 5 (A) (1), 5(8), (attached)

13. The Plaintiff surrendered any and all rights of defenseafter the 28 day period had expired. Given sufficient benefit ofthe doubt under the law, the Plaintiffs very last day forresponse of any kind in this matEer was January 2, 2007. Any ofthe Plaintiffs pleadings that have been filed after January 2,2007 must be retumed to the Plaintiff and marked as un-filed bythe Court. The Magistrate has exhibited extreme prejudicetoward the Defendant in accepting any and all late and/oruntimely filings of the Plaintiff. These types of filings are strictlyprohibited by Rules of practice of the Supreme Court of Ohio. A

5

litigant without response of any kind has no defense to any orall averments against him. The Plaintiff had ample time in whichto formulate and file a response or extension of time. ThePlaintiff failed to exercise any of his options set forth under law.The Plaintiff, being a practicing law firm, is aware of theimplications and benefits of adherence to the Civii Rules ofProcedure, as well as the myriad of penalties for non-compliance with these rules, especially those sectionspertaining to untimely filings. The Plaintiff does know or shouldknow in particular the time limits for response to counterclaimas prescribed in Civ. R. 12. The Plaintiff failed to move the courtfor an extension of time. All of the PlaintifPs filings after January2, 2007 are not only unacceptable by the court but also arecontrived by the Plaintiff, accepted by the Magistrate fqr theexpress intent to delay prompt disposition of this case.

14. The Defendant's motion to dismiss Plaintiffs response tocounter claim is founded in law and must be allowed. The CivilRules of Procedure cannot be eschewed neither for the sake ofsaving face on the part of the court nor for the convenience of alicensed law professional. As stated in Local rule 3(E), "Entriesshall conform to Civil Rules."

15. Objections to paragraph 14: The rules of praaticepromulgated by the Supreme Court of Ohio are to be followedin all courts. (See Ohio Constitution Article IV (5) (B)(attached,),) The Supreme Court shall prescribe rulesgoveming practice and procedure in ALL of the courts of thestate (emphasis added.) In the case of untimely filing, rejectionof any such filings becomes the obligation of theMagistrate/court, this is implied by Civ. R. 12, and defined bythe rules of practice as set forth by the Supreme Court of Ohio.In this particuiar scenario, the Magistrate/court must mark theuntimely filings as un-filed, return them to the Clerk, and instructthe Clerk to return them to the Plaintiff as dictated in the citedsections.

16. There appears to be no ORC sect. 2323.50 as cited in theMagistrate's findings. All examined sources skip from 2323.46to 2323.51. Vexatious litigators and their provisions are outlined

6

in section 2323.51. Further, the second cited section of theORC, 1901.31 (e,) (attached) provides special procedures forClerk of Court elections in Barberton, Ohio. The Defendant failsto see the applicability of neither a non-existent section of theOhio Revised code nor public election stipulations to thisparacular matter.

17. The Defendant's motions for summary Judgment per Civ.R. 55 and default Judgment per Civ. R.56, respectively, arefounded in law as the Plaintiff failed to timely file answer tocounter claim as required by Civ. R. 12.

18. Magistrate's paragraph 15; There exists no Local rule 56in Richfand County as enumerated in the Magistrate's findings;hence the Defendant finds the Magistrate's entire paragraph 15to be superfluous,

19. The Magistrate and court lack jurisdiction over theamended Counterclaim as the amount of damages sought bythe Plaintiff exceed monetary Jurisdiction of the court. ORC1 Jfl1.17(attached). Jurisdiction of the magistrate ends withjurisdiction of the court. It is the responsibility of the court totransfer such matters to the court of Common Pleas. ORC1901.22 (E) (attached).

20. The Magistrate's attempt to overrule the PlaintrfPs lawfulamended counter claim also attempts to deny the Defendanthis right to trial by jury Civ. R. 38(attached) even though no trialof any sort is required.

21. The Defendant objects to the trial as set for May 14,2007, as there is no need of trial for defautt judgment. TheMagistrate wrongfully initiated and established this date, wellbeyond the limits of timely disposition, as a device to abstainfrom rendering a lawful default Judgment against the Plaintiff.

20. The trial set for May 14, 2007 is for case number 06-CVG-3913. Per the Clerk of The Municipal Court of Mansfield,Ohio, the alpha identifier of this case number is reserved for

7

eviction cases. To date, the disposition of case number 2006-CVH-3913, the matter in question, has not been set for trial.

21. The trial Date of May 14, 2007 represents a period of 195days from the initial file date of November 1, 2006. This is forall intents and purposes 6 months and 15 days from the dateof the initial filing. This date is also well beyond $0 days afterthat Defendant entered his plea via answer (Nov. 30 2006)The Defendant feels that this is a gross overextension of aninterpretation of timely disposition, showing favor to thePlaintiff.

SUMMARY OF OBJECTIONS

The Defendant respectfully requests the court to set aside theJudgment entry of Aprii 5, 2007. The Defendant haS exhibitedby and with Ohio Revised Code, Ohio Civil Rules of Procedure,Ohio Supreme Court Rules of Practice, and the Constitution ofthe State of Ohio. The Magistrate has wilifully and severally onnumerous issues in this case exhibited partiality on behalf ofthe Plaintiff to the detriment of the Defendant. The Defendanthas abided by all rules of civil procedure and, to the best of hisability as a pro se litigant, defended his posi#ion on a foundationof law. The court had and has a duty to issue a defaul#judgment against the Plaintiff on or after January 3, 2007 forfailure to respond to counter claim within the time limitsimposed by the Ohio Civil Rules of procedure 12. The courtenjoys the benefit of this selfsame rule in all cases where otherlitigants have failed to respond, complaint, counter claim, orsummons. The difFerence in this case is simply that the PlaintiffIs a law firm as opposed to a member of the non-practicingcitizenry.

Standards established by the Ohio Supreme Court forProfessional Code of conduct require that law firms and lawyersshall be held to higher standards and closer adherence to theniles of procedure than ordinary ci#izens or pro se litigants. Alaw firm should not be given leniency to the rules of Civil

8

Procedure as a matter of course or at the discretion of aMagistrate.The Magistrate in question has violated his position as a

public employee and as a judge in this proceeding. To exhibitpartiality and to delay prompt disposi#ion by default as requiredis a dereliction of his position and duty as Magistrate.

Further, the court has an obligation due to lack of jurisdictionbased on monetary amount asked by the Defendant to transferthis case to the Common Pleas Court of Richland County fordisposition, mo#ion to this end, has been filed by the Defendantas of March 30, 2007.

PROPOSED DECISION

Set aside the Judgment entry of 04-05-07. The herein case hasno justification for trial. An immediate Default Judgment againstthe Plaintiff, per Civil Rule 12 of the Ohio Rules of Civilprocedure is prompt, proper and fair,The Plaintiff has presented no legat defense to the Defendant'samended counter claim. Therefore the Defendant's amendedcounterclaim presented to the court via by motion filed with thecourt on 02-12°2007 is accepted in toto.

The judge shall certify the proceedings in the case to the courtof common pleas, of Richland County Ohio for promptdisposition, ORC 1901,22 (E)

Respectfully submitted

Randy Shepherd3558 Alvin RoadShelby Ohio 44875

9

JUDGMENT ENTRY

The Court, having fully considered the Proposed Decision of theDefendant and all appropriate pleadings and proceedings, if anypursuant hereto, hereby adopts the Proposed decision of theDefendant which is hereby incorporated in this Judgment Entry andmade a part hereof, and confirms the same and enters Judgmentthereon as the order of this court.

IT IS SO ORDERED.

Jeff Payton, Judge

10

PROOF OFSERVICE

(Defendant) served the foregoing Objection to Magistrates FindingsOf fact on plaintiff atSix West Third Street, Suite 200 P.O. box 268, Mansfield Ohio44901-026_

pril, 18, 2007by regular United States Mail on A

Defendant

§ 4.05 Other powers of the Supreme Court[ View Article Table of Contents ]

(A)(1) In addition to all other powers vested by this article in the supreme

court, the supreme court shall have general superintendence over all

courts in the state. Such general superintending power shall be exercised

by the chief justice in accordance with rules promulgated by the Supreme

Court.

(2) The Supreme Court shall appoint an administrative director who shall

assist the chief justice and who shall serve at the pleasure of the court.

The compensation and duties of the administrative director shall be

determined by the court.

(3) The chief justice or acting chief justice, as necessity arises, shall

assign any judge of a court of common pleas or a division thereof

temporarily to sit or hold court on any other court of common pleas or

division thereof or any court of appeals or shall assign any judge of a court

of appeals temporarily to sit or hold court on any other court of appeals or

any court of common pleas or division thereof and upon such assignment

said judge shall serve in such assigned capacity until the teffnination of

the assignment Rules may be adopted to provide for the temporary

assignment of judges to sit and hold court in any court established by law.

li

(B) The Supreme court shall prescribe rules governing practice and

procedure in all courts of the state, which rules shall not abridge, enlarge,

or modify any substantive right. Proposed rules shall be filed by the court,

not later than the fifteenth day of January, with the clerk of each house of

the General Assembly during a regular session thereof, and amendments

to any such proposed rules may be so filed not later than the first day of

May in that session. Such rules shall take effect on the following first day

of July, unless prior to such day the General Assembly adopts a

concurrent resolution of disapproval. All laws in conflict with such rules

shall be of no further force or effect after such rules have taken effect.

Courts may adopt additional rules concerning local practice in their

respective courts which are not inconsistent with the rules promulgated by

the supreme court. The supreme court may make rules to require uniform

record keeping for all courts of the state, and shall make rules goveming

the admission to the practice of law and discipline of persons so admitted.

(C) The chief justice of the Supreme Court or any judge of that court

designated by him shall pass upon the disqualification of any judge of the

courts of appeals or courts of common pleas or division thereof. Rules

may be adopted to provide for the hearing of disqualification matters

involving judges of courts established by taw.

^^p r 1 ^ n^ S ^5 ^ SCY ^ t^ 1 n -&[ Pr2S^^2.^.+^ D C

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Attachment for Objections to Magistrates fmding of Fact and Conclusions of law.Mansfield Ohio Municipal Court case # 006-CVH-3913

§ 1901.17. Monetary jurisdiction

A municipal court shall have original jurisdiction only in those cases in which the amountclaimed by any party, or the appraised value of the personal property sought to berecovered, does not exceed fifteen thousand dollars, except that this limit does not applyto the housing division or environmental division of a municipal court.

Judgment may be rendered in excess of the jurisdictional amount, when the excessconsists of interest, damages for the detention of personal property, or costs accrued afterthe commencement of the action.

RULE 56. Summary Judgment

(A) For party seeldng affirmative relief. A party seeking torecover upon a claim, counterclaim, or cross-claim or toobtain a declaratoryjudgment may move with or withoutsupporting affidavits for a summaay judgment in the party'sfavor as to all or any part of the claim, counterclaim, cross-claim, or declaratoryjudgment action. A party may move forsummary judgment at any time after the expiration of thetime permitted under these mles for a responsive motion orpleading by the adverse party, or after service of a motion forsummary judgment by the adverse party. If the action hasbeen set for pretrial or trial, a motion for summary judgmentmay be made only with leave of court.

(B) For defending party. A party against whom a claim,counterolaim, or cross-claim is asserted or a declaratoryjudgment is sought may, at any time, move with or withoutsupporting affidavits for a summaryjudgment in the party'sfavor as to all or any part of the claim, counterclaim, cross-claim, or declaratory judgment action. If the action has beenset for pretrial or trial, a motion for summary judgment maybe made only with leave of court.

(C) Motion and proceedings. The motion shall be served atleast fourteen days before the time fixed for hearing. Theadverse party, prior to the day of hearing, may serve and fileopposing affidavits. Summaryjudgment shall be renderedforHxwith ifthe pleadings, depositions, answers toinfermgatories, written admissions, affidavits, transcripts ofevidence, and written stipulations of fact, if any, timely filedin the action, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to judgmentas a matter of law. No evidence or stipulation may be

considered except as stated in this rule. A summary judgmentshall not be rendered unless it appears from the evidence orstipulation, and only from the evidence or stipulation, thatreasonable minds can come to but one conclusion and thatconclusion is adverse to the party against whom the motionfor summary judgment is made, that party being entitled tohave the evidence or stipulation construed most strongly inthe party s favor. A summary judgment, interlocutory incharaoter, may be renderod on the issue of liability alonealthough there is a genuine issue as to the amount ofdamages.

(G) Affidavits made in bad faith. Should it appear to thesatisfaction of the court at any time that any of the affidavitspresented pursuant to this nlle are presented in bad faith orsolely for the purpose of delay, the court shall forthwith orderthe party employing tbem to pay to the other party theamount of the reasonable expenses which the filing of theaffidavits caused the other party to incur, includingm„asonable attomey s fees, and any offending party orattomey may be adjudged guilty of contempt.

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

(A) When answer presenbed.

(i) 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 pubHcation.

(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 shail serve his reply to a counterclaimin the answer within twen"ight 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 orderotheawise directs. The service of a motion permitted underthis rale 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 foudeen daysafter notice of the eourt's action; (b) if the court grants amotion, a responsive pleading, delayed because of service of

2

the motion, shall be served within fourteen days after serviceof the pleading which complies with the courPs order.

RULE S. Service and F57ing of Pleadings and OtherPapers Subsequent to the Original Complaint

(A) Service: When Required. Except as otherwise providedin these rules, everyorder required by its terms to be served, every pleadingsubsequent to the original complaintunless the court otherwise orders because of numerousdefendants, every paper relating todiscovery required to be served upon a party unless the courtotherwise orders, every writtenmotion other than one which may be heard ex parte, andevery written notice, appearance,demand, offer of judgment, and similar paper shall be servedupon each of the parties. Service is not required on parties indefault for failure to appear except that pleadings assertingnew or additional claims for relief or for additional damagesagainst them shall be served upon them in the mannerprovided far service ofsummons in Civ. R. 4 through Civ. R4.6.

RULE 1. Scope of Rules: Applicability; Constraction;Exceptions

(A) Applicability. These rn(es prescribe the procedure to befollowed in all courts of this state in the exercise of civiljurisdiction at law or in equity, with the excepYions stated insubdivision (C) of this rule.

(B) Constraction. These rules shall be construed and appliedto effect just results by eliminating delay, unnecessaryexpense and all other impediments to the expeditiousadministration ofjustice.

RULE 83. Rule of Court

(A) A court may adopt local rules of practice which shall notbe inconsistent with these rules or with other rulespromulgated by the Supreme Court and shall file its localrules of prdctioe with the Clerk of the Supreme Court

(B) Local rules of practice shall be adopted only after theoourt gives appropriata notice and an opportunity forcomment. If a court determines that there is an immediateneed for a rule, it may adopt the nde without prior nofice andopporiunity for comment, but promptly shatl afford noticeand opportunity for comment

3

RULE 55. Default

(A) Entry ofjudgment. When a party against whom ajudgment for affirmative relief is sought has failed to plead orothetwise defend as provided by these rules, the party entitledto a judgment by default shall apply in writing or orally ta thecourt therefor; but no judgment by default shall be enteredagainst a minor or an incompetent person unless representedin the action by a guardian or other such representative whohas appeared therein. If the party against whom judgment bydefault is sougbt has appeared in the action, he (or, ifappearing by representative, his representative) shall beserved with written notice of the application for judgment atleast seven days prior to the hearing on such applicarion. If,in order to enable the court to enter judgment or to oany itinto effect, it is necessary to take an account or to determinethe amount of damages or to establish the truth of anyaverment by evidence or to make an investigation of anyother matter, the court may conduct such hearings or ordersuch references as it deems neeessary and proper and shallwhen applicable accord a right oftrial by jury to the parties.

(B) Setting aside default judgment. If a judgment by defaulthas been entered, the court may set it aside in accordancewith Rule 60(B).

(C) Plaintiffs, counterelaimants, cross-claimants. Theprovisions of this rule apply whetherthe party entitled to thejudgment by default is a plaintM a third-party plaintiff or aparty who has pleaded a cross-claim or counterclaim. In allcases ajudgment by default is subject to the limitations ofRule 54(C

§ 1901.31 Clerk of court.

(e) Except as otherwise provided in division (A)(1)(e) of this section, in theBarberton municipal court, candidates for election to the office of clerk of thecourt shall be nominated by primary election. The primary election shall beheld on the day specified in the charter of the city of Barberton for thenomination of municipal officers. Notwithstanding any contrary provision ofsection 3513.05 or 3513.257 of the Revised Code, the declarations ofcandidacy and petitions of partisan candidates and the nominating petitionsof independent candidates for the office of clerk of the Barberton municipal

4

court shall be signed by at least fifty qualified electors of the territory of thecourt.

The candidates shall file a declaration of candidacy and petition, or anominating petition, whichever is applicable, not later than four p.m. of theseventy-fifth day before the day of the primary election, in the formprescribed by section 3513.07 or 3513.261 of the Revised Code. The declarationof candidacy attd petition, or the nominating petition, shall conform to the applicablerequirements of section 3513.05 or 3513.257 of the Revised Code.

If no valid declaration of candidacy and petition is filed by any person fornomination as a candidate of a particular political party for election to theoffice of clerk of the Barberton municipal court, a primary election shall notbe held for the purpose of nominating a candidate of that party for election tothat office. If only one person files a valid declaration of candidacy andpetition for nomination as a candidate of a particular political party forelection to that office, a primary election shall not be held for the purpose ofnominating a candidate of that party for election to that office, and thecandidate shall be issued a certificate of nomination in the manner set forthin section 3513.02 of the Revised Code.

Declarations of candidacy and petitions, nominating petitions, and certificatesof nomination for the office of clerk of the Barberton municipal court shallcontain a designation of the term for which the candidate seeks election. Atthe foliowing regular municipal election, all candidates for the office shall besubmitted to the qualified electors of the territory of the court in the mannerthat is provided in section 1901.07 of the Revised Code for the election of thejudges of the court. The clerk so elected shall hold office for a term of sixyears, which term shall commence on the first day of January foilowing thederk's election and continue until the clerk's successor is elected andqualified.

§1901.17 Monetary jurisdiction.

A municipal court shall have original jurisdiction only in those cases in whichthe amount claimed by any party, or the appraised value of the personalproperty sought to be recovered, does not exceed fifteen thousand dollars,except that this limit does not apply to the housing division or environmentaldivision of a municipal court.Judgment may be rendered in excess of the jurisdictional amount, when theexcess consists of interest, damages for the detention of personal property,or costs accrued after the commencement of the action.

5

§1901.22 Civil actions.

.(E) In any action in a municipal court in which the amount claimed by any defendant in anystatement of counterclaim exceeds the jurisdictional amount, the judge shall certify theproceedings in the case to the court of common pleas, except in the Cleveland municipalcourt.

RULE 38. Jury Trial of Right

(A) Right preserved. The right to trial by jury shall bepreserved to the parties inviolate.

(B) Demand. Any party may demand a trial by jury on anyissue triable of right by ajury by serving upon the otherparties a demand therefor at any time after thecommencement of the action and not later than fourteen daysafter the service of the last pleading directed to such issue.Such demand shall be in writing and may be indorsed upon apleading of the party. If the demand is indorsed upon apleading the caption of the pleading shall state "jury demandendorsed hereon." In an action for appropriation of a right ofway brought by a corporation pursuant to Article XllI,Section 5, of the Ohio Constitution, the jury shall becomposed of twelve members unless the demand specifies alesser number, and in the event of timely demand by morethan one party in such action thejury shall be composed ofthe greater number not to exceed twelve. In all other civilactions tha jury shall be composed of eight members unlessthe demand specifies a lesser number, and in the event oftimely demand by more thaa one party in such actions thejury shall be composed of the greater number not to exceedeight.

(C) Specification of issues. In his demand a parl.y mayspecify the issues which he wishes so tried; otherwise heshall be deemed to have demanded trial by jury for all theissues so triable. If he has demanded trial by jury for onlysome of the issues, any other party within fourteen days afterservice of the demand or such lesser time as the court mayorder, may serve a demand for trial by jury of any other or allof the issues of fact in the action.

(D) Waiver. The failure of a pari.y to serve a demand asrequired by this rule and to file it as required by Rule 5(D)constitutes a waiver by him of trial by jury. A demand fortrial by juwry made as herein provided may not be withdrawnwithout the consent of the parties.

Municipal CourtsOther Civil Terminations

2005

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Fairfeld County 0 11 63 0 0 11 0

Findlay 0 0 0 0 0 3 0

Fostoria 0 0 25 0 4 4 0

Franklin 0 0 40 1 0 19 0

Franklln County 0 26 78 545 0 116 36

Franklin Co. Enviro. 0 0 0 0 0 0 0

Fremont 0 0 44 0 1 4 0

Gallipolis 0 0 4 1 0 1 0

Garffeld Heights 0 73 0 1 2 3 1

Glrard 0 0 8 0 1 3 0

HamiHon 0 0 5 0 0 98 0

Hamillon County 0 0 824 0 0 0 0

Hardin County 0 11 2 0 0 3 0

Hillsboro 0 0 6 0 4 9 0

Hocking County 0 0 5 0 0 4 0

Huron 2 1 118 0 0 24 1

ironton 0 0 1 0 0 0 0

Jackson County 3 4 1,482 0 0 163 1

Kettering 0 1 153 0 0 3 0

Lakewood 0 0 76 0 0 4 0

LawrenceCounty 0 0 4 0 0 1 0

Lebanon 0 0- 298 5 71 2 0

Licking Coumy 0 3 36 2 0 10 0

Lima 0 0 0 0 0 0 0

Lorain County 1 0 84 6 0 132 0

Lyndhurst 0 0 2 0 0 3 0

Madison County 0 0 16 0 0 0 0

Mansfield 0 7 13 1,622 64 507 0

Marietta D 0 0 2 6 0

Marion County 0 2 901 0 0 211 0

Marysville 0 0 18 0 1 2 0

Mason 0 1 90 46 11 3 0

Massillon 0 0 51 0 2 13 0

Maumee 0 17 0 0 0 1 0

Medlna 0 0 1,010 69 40 280 6

Mentor 0 0 1 0 0 0 0

Miami County 0 0 0 0 0 22 0

Miamisburg 0 225 712 15 63 133 0

Middlgtown 0 0 0 1 2 2 0

MorrowCounty 0 0 0 11 0 12 0

Mount Vernon 0 2 351 0 22 86 2

Napoleon 0 0 26 0 2 0 0

NewFliiladelphla 0 1 11 149 0 5 0

Newlon Falis 0 1 21 0 1 0 0

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Municipal Courts239

Municipal CourtsOther Civil Terminations

2006

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Falrfield 0 0 0 0 0 0 0 0 0 0

Fairfield County 0 24 41 0 0 11 0 0 0 0

Findlay 0 0 0 0 0 0 0 0 0 0

Fostoria 0 0 25 0 1 4 0 0 0 0

Franklin 0 0 10 1 0 55 0 0 0 0

Franklin County 0 25 64 867 5 123 48 1 1 2

Franklin County Env. 0 0 0 0 0 0 0 .0 0 0

Fremont 0 0 41 0 0 0 0 0 0

Gallipolis 0 0 4 0 0 0 0 0 0 0

Garfield Heights 0 59 5 0 3 10 1 0 0 1

Girard 0 1 12 0 0 2 0 0 0 0

Hamilton 0 0 5 0 0 124 0 0 0 0

Hamilton County 0 0 842 0 4 0 0 0 0 0

Hardin County 0 10 3 0 0 1 0 0 0 0

Hillsboro* 0 0 5 0 0 31 0 0 0 0

Hocking County 0 0 4 0 0 2 0 0 0 0

Huron 0 1 112 0 0 22 0 0 0 0

Ironton 0 0 21 0 0 0 0 0 0 0

Jackson County 1 0 773 1 0 216 0 0 0 5

kettering 0 0 228 0 0 1 2 1 0 0

Lakewood 0 0 90 0 0 9 0 0 0 0

Lawrence County 0 0 9 0 0 1 0 0 0 0

Lebanon 0 0 400 21 70 2 0 0 0 8

Licking County 0 2 4 0 7 5 0 11 0 1

Lima "0 0 2 0 0^, 0 0 0 0 0

Lorain County 0 1 60 121 0`t 122 0 0 0 0

Lyndhurst 0 0 4 0 0.1 0 0 0 0

MadisonCounty 0 0 17 0 0 0 0 0 0 0

Mansfield 0 0 2 1,457 41 322 3 0 18 0

Marietta 0 1 1 1 2 7 0 0 0 0

Marion County 0 0 811 0 0 197 1 0 0 8

Marysville 0 0 12 0 0 3 0 0 0 0

Mason 0 0 126 14 5 0 1 0 0 0

Massillon 0 0 54 2 1 9 1 0 0 0

Maumee 0 20 0 0 0 1 0 0 0 0

Medina 0 0 721 302 70 276 8 0 0 15

Mentor 0 0 3 0 0 0 0 0 0 0

Miami County 0 0 1 0 0 8 0 0 0 0

Miamisburg 0 234 760 8 40 144 0 0 0 5

Middletown 0 0 0 3 1 2 0 0 0 0

Morrow County 0 0 0 2 0 23 0 0 0 0

Mount Vemon 0 6 267 0 11 66 2 0 0 4

Napoleon 0 0 58 0 2 0 0 0 0 0

New Philadelphia 0 3 5 165 0 2 0 0 0 0

" Hillsboro Municipal Court only submitted reports for January through November.

Municipal Courts239

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^sW FRandy Shepherd

From: "David Remy" <dremy@ci.mansfield.oh.us>To: "Randy Shepherd" <427benz@neo.rr.com>Sent: Friday, March 02, 2007 11:10 AMSubject: RE:2006-cvh-3913

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dE ., .;+ . (' ^i miciped court iudgrs and they are the ones you need to contact directly. They are JudgeJe

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Fromt Randy Shepherd [mailto:427benz@neo.rr.com]Sent: Thursday, March 01, 2007 10:01 AMTo: David RemySubject: 2006-cvh-3913

Mr. Remy,

Myname is RandyShepherd: I live near Mansfield Ohio.On Nov. 06 2006 I was served with no6ce of a complaint that was filed with the Municipal court of Mansfield OhioCase # 2006-cvh-3913. I responded with answer and counter claim on Nov. 30 2006. The Plaintiff did not respond tocounter claim until Jan. 5, 2007. It is my understanding that Ohio civil rule of procedure number 12 was violated. The Plaintiffhad but 28 days to respond to counter claim: There are 31 days in December, the Plaintiff did not respond or appear until the36th day.On the last day of which the Plaintiff could legally respond Jan 2, 2007. The court did schedule a Magistrates conference,mind you this was before the Plaintiff responded to counter daim. The court took it upon themselves to schedule saidconference on Jan: 29; 2007.The Plaintiff is clearly in default per dvil Rule 12. The court has chosen to ignore this rule even though the local mles ofprocedure number 3.e states. "ENTRIES. Shall conform to civil rules.On Jan. 20, 20071 moved the court to dismiss Plaint"rfrs reply to counter claim per civil rule 12.a2, as the reply was untimetybroughtI have since moved the court for both Summary Judgment Civil Rule 56. a. b. and for default Judgment civil rule 55 a. The

court has chosen not to abide by either of these rules as well.I read inqour eitizens guidethatone could expect a hearing wdhin40 days of filing of complaint: Is a magistrates conference

a hearing?As it stands today March 1, 2007, the only thing that has been scheduled other than the Magistrates conference is a trial onMay 14, 2007. That is just a liltle over 6 months after the initial filing. It is peculiar to me that the trial on May 14 is for casenumber06-CVG-3913.I do not understand why a court can or would hold a tdal without a pre-trial conference as noted in section XIX of ORC.I do not understand why a court would hold a trial where the Plaintiff is dearly in default.tdo not understand whythis court has scheduled a tdal that is 6 months after the filing of the complaint. Whenby the eourrsrule 8 d.5.b, "the case shall be set for hearing within a reasonable time frame not to exceed ninety (90) days".

I have contacted any and aU I can think to do so: The Nst indudes but not limited to; the Mayor of Mansfield; Ohio SupremeCourt disciplinary council, The Clerk of courts, The attomey General's office.

Things are not right inthis case and I have no where to tum. Please advise?

Thank you For your time

Randy Shepherd4t9-545-1096

2/14f2008

`-MiV 61; -̂Mr. Shepard,

My office is unable to advise you on procedural matters involving a civil law suit between twoprivate parties. However, based upon your information, it does appear that something is not right.Small Claims Court and the magistrate handling it are directly under the control of the municipalcourt judges and they are the ones you need to contact directly. They are Judge Jerry Ault andJudge Jeff Payton.

Dave Remy

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