Supreme Court of Ohio Clerk of Court Filed January 22 2018 Case No - PDF document

1 Supreme Court of Ohio Clerk of Court - F
Supreme Court of Ohio Clerk of Court - Filed January 22, 2018 - Case No. 2017-1791 IN THE SUPREME COURT OF OHIO HABTAM GEBI , Plaintiff - Appellee, CASE NO. 2017 - 1791 v. On Appeal from the Franklin County Court of Appeals, Tenth Appellate LEGESSE WORKU , District Defendant - Appellant . APPELLEE ’S MEMORANDUM IN RESPONSE TO APPELLANT ’S MEMORANDUM IN SUPPORT OF JURISDICTION E. Darren McNeal (0059218) E. Darren McNeal Co., LLC 100 East Main Street Columbus, OH 43215 (614) 224 - 8400 dmcneal@mcneallaw.com COUNSEL FOR APPELLANT, LEGESSE WORKU Stuart Y. Itani (0075563) The Legal Aid Society of Columbus 1108 City Park Avenue Columbus, OH 43206 (614) 737 - 0115 (614) 224 - 4514 ( fax ) sitani@columbuslegalaid.org COUNSEL FOR APPELLEE, HABTAM GEB I 1 EXPLANATION OF W HY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION This case arises from a complaint for divorce filed by Appellee, Habtam Gebi, in the Franklin County Court of Common Pleas, Division of Domestic Relations. During the co urse of the trial court ’s proceedings, Appellant, Legesse Worku, repeatedly failed to comply with the court’s discovery process, including discovery - related case management orders. Despite receiving multiple notice s of the potential consequences for his no n - compliance, as well as multiple opportunities to correct or explain his non - compliance , Mr. Worku refused to exchange critical information with Appellee prior to trial. As a result of his p

2 ersistent non - compliance with the
ersistent non - compliance with the court’s orders , the trial court dismissed Mr. Worku’s counterclaim for divorce , prevented him from presenting evidence, and allowed Ms. Gebi to proceed to final hearing on her complaint, uncontested; Mr. Worku, however, was given ample opportunity to cross - examine witnesses. After Ms. G ebi provided competent, credible evidence to the court during a hearing, the trial court issued a Judgment Entry and Decree of Divorce that: (1) terminated the marriage on grounds of gross neglect of duty, extreme cruelty, and incompatibility; (2) designat ed Ms. Gebi as the legal custodian of the parties’ minor children and granted Mr. Work u parenting time; and (3) equitably divided the parties’ assets and liabilities. The Court of Appeals found the trial court committed no error in its adjudication of the case, and it affirmed the trial court’s decision in its entirety. This Court should reject Mr. Worku’s petition for jurisdiction. While Mr. Worku asserts that this case involves issues of public or great general interest, the opposite is true: this is a case that revolves around a dispute between the parties, and Mr. Worku’s repeated failure to follow 2 court orders for the exchange of information needed to resolve the parties’ dispute. Furt hermore , this case does not involve substantial constitutional questions. A. T his Case Does Not Raise Issues of Public or Great General Interest . M r . W o r k u attempts to invoke this Court’s jurisdiction through overly broad assertions that this case presents l arger concerns for all litigants in divorce proceedings . M r . W o r k u , however, omits and downplays the documented history of this case and facts in the record that , when raised, show that the outcome in this case is rooted in its particular facts and circumstanc

3 e . As such, this case does not present
e . As such, this case does not present issues of public or great general interest. When deciding whether a matter constitutes a case of public or great general interest , th is Court seeks to review novel questions of law and cases presenting opportunities to address community or statewide problems or concerns. Noble v. Colwell , 44 Ohio St.3d 92, 94 , 540 N.E.2d 1381 (1989) ; Smith v. Leis , 106 Ohio St.3d 309, 2005 - Ohio - 5125, 835 N.E.2d 5 , ¶ 15 (review of statewide bail bond system); Danis Clarkco Landfill Co. v. Clark Cty. Solid Wast e Mgt. Dist . , 73 Ohio St.3d 590, 598, 653 N.Ed.2d 646 (1995) (review of State and County competitive bidding framework for contracts); Williamson v. Rubich , 171 Ohi o St. 253, 254, 168 N.E.2d 876 (1960); In re Suspension of Huffer , 47 Ohio St.3d 12, 14, 546 N.E. 2d. 1308 (1989) ( reviewing authorit y of school board s ) . Compare Dreyfus v. Lakew o od City School s , 8th Dist. Cuyah o g a No. 70004, 1996 WL 502149 , *3 (Sept. 5, 1996), appeal not accepted , 77 Ohio St.3d 1526, 674 N.E.2d 377 (1997) ( student challenging school suspension could not overcome mootness doctrine where case was no t of great public interest ; student ’s claims focused more on whether his suspensio n was supported by evidence rather than challenging the school board’s authority or the school’s overarching policies ) . While this Court has broad discretion to determine what constitutes a case of public or great general interest, the Court does not consi der 3 of public or great general interest those disputes that pose case - specific issues or depend on factual determinations or sufficiency of the evidence . State v. Urbin , 100 Ohio St.3d 1207, 2003 - Ohio - 5549, 797 N.E.2d 985, ¶¶ 3, 5 (Moyer, C.J., concurring) ; see Williamson , 171 Ohio St. at 25 4 -

4 25 5. 1. History of T his Case De
25 5. 1. History of T his Case Demonstrate s That San c t ion s Imposed o n This Appellant A re N ot o f Public o r G r e a t G e n e r a l Interest . The Court of Appeals correctly identified a series of facts from the record that serve as a strong basis for the trial c ourt’s sanction ing of Appellant in this case. In Paragraphs 5 - 6, and 1 5 - 1 6 of its Decision , the Court of Appeals recounts a repeated pattern of Mr. Worku’ s failure to cooperate with discovery and discovery - related case management orders. By the time the parties had proceeded to trial on August 31, 201 6 , Mr. Worku , without justification, had failed to cooperate, even partially, with the exchange of critical information to Ms. Gebi pursuant to two different case management orders that had been in e ffect for over five months. In addition to requiring disclosure of any witnesses, each case management order contained a comprehensive list of documents that must be exchanged with the other party. Decision , ¶ 7. These documents were directly relevant to every issue within the trial court’s purview: allocation of parental rights and responsibilities, determination of child support, and the equitable division of assets and liabilities. Furthermore, the case manageme nt orders conspic u ously set forth the range of sanctions that could be imposed for failure to comply ; these warnings regarding limitation of evidence and the case proceeding on an uncontested basis were consistent with the sancti ons set forth in Frankl in County Domestic Relations Division Local Rule 3(H) - (I) . Decision , ¶¶ 6, 16. Ms. Gebi reasonably relied on these court orders for the exchange of information that would shape her preparation for trial. Accordingly, she faced substantial prejudice if Mr. W orku would 4 be permitted to part

5 icipate in trial without also participat
icipate in trial without also participating in these fair, established pre - trial disclosures, particularly as she had prepared and given to Mr. Work u her trial information . As the Court of Appeals e mphasized , Mr. Worku’s pattern of complete non - compliance “left few options for the trial court judge but to block his evidence from being admitted at trial.” Decision , ¶ 15 . 1 Indeed, “[a]ny other course of conduct would allow a recalcitrant party to a divorce to block the case from proceeding indefinitely.” Decision, ¶ 16 . Rather than taking any steps to cooperate with these orders during trial, M r. Worku instead complains, after the fact, about the reasonable and foreseeable sanctions the trial court imposed on him in this case . Accordingly, this case presents matters that are specific to these parties and does not present a matter of public or great general interest for this Court to review. 2. The Trial Court’s Gran t ing of Divorce to T hese Parties is Not a Matter of Public o r G r e a t G e n e r a l Interest. Mr. Worku also seeks to invoke this Court’s jurisdiction by cursorily suggesting that grounds for divorce between two parties, and the evidence for those grounds, involves the public interest. In P aragraphs 4 and 27 o f its Decision , the Court of Appeals sets forth facts in the record about the parties’ marriage that would support at least one of the stated grounds for divorce under R.C. 3105.01. Ms. Gebi called a witness at trial who corroborated Ms. Gebi’s testimony p ursuant to Civil Rule 75(M). Mr. Worku participated in cross - examination during this case, and did not controvert the facts that supported terminating the parties’ marriage. The reasons for the parties’ divorce in th is instance does not reflect a matter of general interest, and this C

6 ourt should decline jurisdiction of thi
ourt should decline jurisdiction of this appeal. 1 Mr. Worku was permitted to cross - examine witness. Decision , ¶ 6. 5 B. This Case Does Not Present Substantial Constitutional Question s . This case does not present substantial constitutional questions, and this Court should decline to a ccept jurisdiction of this appeal. 1. Court Should Not Review Arguments That Were Never Raised Below . When a party fails to present issues for consideration in the court below, those issues are waived and cannot be raised for the first time before this Court. Danis Clarkco Landfill Co. v Clark Cty. Solid Waste Mgt. Dist. , 73 Ohio St.3d 590, 598 , 653 N.E.2d 646 (1995) ; Shover v. Cordis Corp. , 61 Ohio St.3d 213, 220 , 574 N.E.2d 457 (1991) . Mr. Worku raises constitutional issues and arguments for the first time in his Memorandum in Sup port of Jurisdiction. He never presented these to the trial court or Court of Appeals. Because Mr. Worku has failed to raise these issues below , the Court should not consider these issues at this point and should decline jurisdiction. 2. Mr. Worku Received Due Process . When a court imposes sanctions of dismissal or default aga inst a party for failing to follow a court order, including a discovery order , the party must be given notice of the impending dismis sal or adverse action and an opportunity to respond or correct the noncompliance. Ohio Furniture Co. v. Mindala , 22 Ohio St.3d 99, 100 - 101, 488 N.E.2d 88 (1986) ; Russo v. Goodyear Tire & Rubber Co. , 36 Ohio App.3d 175, 180 , 521 N.E.2d 116 ( 1st Dist.1987). A party has notice of an impending dismissal when it “has been informed that dismissal is a possibility and has had a reasonable opportunity to defend against dismissal.” Har

7 ris v. Harris , 10 th Dist. Franklin
ris v. Harris , 10 th Dist. Franklin No. 98AP - 1077, 1999 WL 418102, *5 (June 24, 199 9) (notice of dismissal contained in court’s order to pay guardian ad litem fees). 6 Contrary to Mr. Worku’s assertion s that the trial court suddenly and summarily sanctioned him, Mr. Worku had notice and an opportunity to be heard regarding the trial court ’s sanctions — sanctions that were imposed after his prolonged failure to cooperate with discovery - related case management orders. As underscored by the Court of Appeals, the trial court’s case management orders from March 2, 2016 and July 18, 2016 specified that sanctions of dismissal and preclusion of presentation of a case c ould be imposed for failure to follow the orders. Decision , ¶ 6 . In fact, Mr. Work u has never previously raised, at trial or in the Court of Appeals, that he did not receive notice of the impending sanctions. Furthermore, Mr. Worku had numerous opportunities to comply with the case management orders or provide jus tifications for non - compliance over a five - month period prior to trial. The record, however, is devoid of his efforts to comply or explanations for non - compliance. Mr. Worku was afforded due process throughout the trial court’s proceedings, and the trial c ourt took appropriate steps to m a n a g e i t s d o c k e t a n d prevent prejudice to Ms. Gebi at trial. Decision , ¶ 15. Accordingly, there are no constitutional issues presented by this case for this Court’s review. 3. This Case Does Not Implicate Fundamental Rights . Mr. Worku errantly relie s on Santosky v. Kramer , 455 U.S. 745, 102 S.Ct. 1388 , 71 L.E.2d 599 (1982) to argue that this Court should accept jurisdiction because the Court of Appeals ’ decision threatens a parent’s interest in the custody of his children. While parents have a constitut

8 ionally protected int erest in the care,
ionally protected int erest in the care, custody and management of their children, Santosky only outlines some of the heightened protections that are afforded parents involved in state - initiated proceedings to terminate a natural parent’s parental rights based on neglect of a child. Id. at 745 , 769 (use of a higher “clear and convincing evidence” before termination) . The instant case contains none of these components. Rather, this case involves a trial court’s routine 7 determination of an allocation of parental rights and responsibilities to meet a child’s best interests pursuant to R.C. 3109.04. As the Court of Appeals noted, Mr. Worku was granted parenting time with his children pursuant to the trial court’s decree of divorce; his parental rights w ere not terminated. Decision , ¶ 7. Therefore, h e is not entitled to the heightened protections set forth in Santosky. See I.C. - R. v. N.R. , 9 th Dist. Summit No. 27671, 2016 - Ohio - 1329, 62 N.E.3d 792 , ¶¶ 50 - 58 ( p a r e n t s r e c e i v e d u e p r o c e s s i n c a s e s i n v o l v i n g a l l o c a t i o n o f p a r e n t a l r i g h t s a n d r e s p o n s i b i l i t i e s u n d e r R . C . 3 1 0 9 . 0 4 ) . Rather, Mr. Worku was entitled to due process , whic h, as argued earlier, he received in this case . Because this Case does not involve a substantial constitutional question, this Court should decline jurisdiction. ARGUMENT IN RESPONSE TO PROPOSITIONS OF LAW A. Response to Proposition of Law No. 1 . 1. Trial Courts Have Discretion to Impose Sanctions, Including Dismissal of Claims and Limitation of Evidence, for Failure to Comply w ith Discovery Order s . In his first proposition of law, Mr. Worku argues that the Court of Appeals ’ decision incorrectly interprets a trial court’s discre

9 tion to sanction a litiga nt for failu
tion to sanction a litiga nt for failure to comply with discovery. When deciding upon sanctioning a litigant, the trial court may properly consider the entire history of the case, including a party's failure to r espond to discovery, and “other evidence that a party is deliberately proceeding in a dilatory fashion * * *.” Jones v. Hartranft , 78 Ohio St. 3d 368, 372 , 678 N.E.2d 530 (1997) (plaintiff’s failure to respond to discovery and failure to identify an expert witness after lengthy litigation resulted in dismissal). When selecting the appropriate sanction, the court must balance the severity of the violation against the degree of the prospective sanction. Woodruff v. Barakat , 10 th Dist. Franklin No. 02AP - 351, 2 002 - Ohio - 5616. 8 Ultimately, a dismissal or default judgment for failure to comply with discovery is appropriate when there is evidence of "willfulness, bad faith or any fault of the party." Huntington Natl . Bank v. Zeune , 10 th Dist. Franklin No. 08AP - 1020, 2009 - Ohio - 3482 , ¶¶18 - 19. The court, however, is not required to use the terms "willfulness or bad faith" in its orders, provided that the party's behavior can be established from the record. Id. “Failure to comply with a disc overy request or order coupled with a subsequent lack of explanation for that noncompliance indicates willfulness and bad faith.” Id. at ¶21 (sanctioned litigant failed, without justification, to appear for deposition and failed to comply with local rules regarding disclosure of witnesses); see also Sullivant Holdings, LLC v. Virgenia, Inc. , 10 th Dist. Franklin No. 13AP960, 2014 - Ohio - 2149 (failure to comply with discovery orders with no justifiable reason warrants entry of default judgment). The law is wel l established that a trial court can review the facts and circumstances of a case and enter

10 sanctions necessary to manage the exchan
sanctions necessary to manage the exchange of information and minimize prejudice to compliant parties. As noted by the Court of Appeals, the trial court’s adjudicat ion of this case follows this fair and established pattern. Accordingly, this Court should decline further review of Appellant’s proposition of law. 2. T his Court Should Also Decline Review to the Extent T hat Appellant’s First Proposition of Law Requires a Factual Determination . In his first proposition of law, Appellant essentially seeks a factual determination by this Court regarding the degree of fault in his noncompliance with the trial court’s discovery orders. His proposition refers to “minimal fault of a party,” and further states that the sanctions imposed by the court were “not appropriate here, certainly in the absence of any showing of willfulness or bad faith.” This Court should decline to review this proposition of law to the extent that Appella nt 9 is requesting this Court to evaluate the facts in the record. See R.C. 2503.43; see also Eastley v. Volkman , 132 Ohio St.3d 328, 333 - 3 34, 2012 - Ohio - 2179, 972 N.E.2d 517, citing Bown & Sons v. Honabarger , 171 Ohio St. 247, 168 N.E.2d 880 (1960) ( C ourt will not review findings involving weight of the evidence). The Decision of the Court of Appeals contains an extensive recitation of a history of non - compliance with court orders , and the record is devoid of Mr. Worku’s attempts to comply , or justifia ble reasons for non - compliance , with those orders . While a trial court’s decision to impose sanctions is reviewed under an abuse of discretion standard, Appellant’s proposition of law is a veiled attempt to have this Court review the evidence in the record to make a factual determination regarding his level of fault for his non - compliance. 2 As s

11 uch, this Court should decline to revie
uch, this Court should decline to review this proposition of law. B. Response to Proposition of Law No. 2 . 1. Court Should Not Review Harmless Error . The trial court granted the parties a divorce based on incompatibility, extreme cruelty and gross neglect of duty. Judgment Entry, Findings ¶ 11. On appeal, Mr. Worku ’s assignment of error regarding grounds for divorce only assigned as error the court’s granting of the divorce on extreme cruelty and gross neglect of duty. On appeal to this Court, Mr. Worku challenges the Court of Appeals ’ finding that the trial court had sufficient grounds to terminate based on gross ne glect of duty ; the Court of Appeals did not reach a decision on other grounds. Pursuant to Civil Rule 61 2 It is also worth noting that Mr. Worku did not present all relevant portions of the record to the Court of Appeals because he failed to include transcripts of previous, relevant hearings; at the final hearing, the trial court specifically referenced the history of discovery issues and case man agement orders raised at previous hearings. See Brief of Appellee, pp.26 - 28 for full discussion. Therefore, this Court should presume the regularity of the trial court’s proceedings. Knapp v. Edward Laboratories, 61 Ohio St. 2 d 197, 199 , 400 N.E.2d 384 (198 0) (cited in Appellee’s Brief, p. 26). 10 and R.C. 2309.59, appellate courts should “ignore error that do es not affect the substantial rights of the parties.” Howard v. Lawton , 10 t h Dist. Fran klin No. 07AP - 603, 2008 - Ohio - 767, ¶13. An error does not affect the substantial rights of the parties if “avoidance of the error would not have changed the outcome of the proceedings.” Id. If granting a divorce is proper on one ground, granting a divorce o n additional ot

12 her grounds constitutes harmless error.
her grounds constitutes harmless error. Clark v. Clark , 7 t h Dist. Noble No. 03NO308, 2004 - Ohio - 1577 , ¶15. Further, any error is harmless if evidence in the record support s a different ground for divorce. Sancho v. Sancho , 3 d Dist. Union No. 14 - 94 - 3, 1994 WL 369488, *2 (July 15, 1994) (divorce errantly granted only on incompatibility, but harmless because evidence in record supported other grounds). In this instance, the trial court had sufficient basis to grant a divorce on several grounds, and Mr. Worku has only challenged some of th ose grounds. 3 By failing to challenge all grounds, he has waived his ability to challenge the court’s termination of his marriage. Therefore, any existing errors would be harmless, and not subjec t to this Court’s review. 2. A Trial Court Has Broad Discretion to Determine Grounds for Terminating a Marriage, and Record in This Case Supports the Trial Court’s Decision . In his second proposition of law, Appellant specifically raises the issue of termin ation of a marriage on the grounds of gross neglect of duty under R.C. 3105.01. The trial court has broad discretion in determining the basis for terminating a marriage, and its determination will not be reversed absent an abuse of discretion. Clark v. Cla rk , 7 th Dist. Noble No. 03NO308, 2004 - Ohio - 1577, ¶10. In determining gross neglect of duty, a trial court reviews whether there has been neglect regarding any duty that a spouse may have toward the other. Clark at ¶12. The 3 When a party fails to present issues for consideration in the court below, those issues are waived and cannot be raised before this Court. Danis Clarkco Landfill Co. v Clark Cty. Solid Waste Mgt. Dist. , 73 Ohio St.3 d 590, 598, 653 N.E.2d 646 (1995); Shover v. Cordis Corp. , 61 Ohio

13 St.3d 213, 220, 574 N.E.2d 457 (1991).
St.3d 213, 220, 574 N.E.2d 457 (1991). 11 determination of gross neglect is based upon the facts and circumstances of each case, and could be the cumulation of a variety of acts. Id. , citing Rice v. Rice , 8th Dist. Cuyahoga No. 78682, 2001 WL 1400012 (Nov. 8, 2001); Moro v. Moro , 68 Oh io App.3d 630, 634 , 589 N.E.2d 416 (8 th Dist. 1990). One such duty of a spouse is the duty to support children of the marriage. R.C. 3103.03. In the instant case, the Court of Appeals set forth a series of uncontroverted facts from the record to support a determination of gross neglect of duty pursuant of R.C. 3105.01(F). Decision , ¶¶ 4, 27. Appellant’s proposition and argument is a broad restatement that a court cannot abuse its discretion when determining grounds for a divorce. The proposition, however, is irrelevant to this case because the record provides a clear basis for the trial court ’s determination. Therefore, t his Court should decline to review. 3. This Court Should Also Decline to Review t o the Extent that Appellant’s Second Proposition of Law Requires a Factual Determination . In his second proposition of law, Appellant arguably see ks a factual determination by this Court regarding whether his conduct during the marriage constituted gross neglect of duty. For similar reasons set forth in response to Appellant’s first proposition of law, above, this Court should decline to review this second proposition of law to the extent that Appellant is requesting this Court to evaluate the facts in the record. The Court of Appeals sets forth a series of uncontroverted facts from the record to support a determination of gross neglect of duty pursu ant of R.C. 3105.01. Decision , ¶ 9. While a trial court’s determination of the basis for terminating a marriage is reviewed under an abuse of discretion standa

14 rd, Appellant’s second proposition o
rd, Appellant’s second proposition of l a w 12 represents another veiled attempt to have this Court review the evidence in the record. 4 Therefore , this Court should decline to review this proposition of law. CONCLUSION Appellee respectfully requests that this Court decline to exercise jurisdiction over this appeal. Appellant has not presented issues of public or great general interest, or issues involving a substantial constitutional question. Furthermore, Appellant’s propositions of law lack merit and should not ot herwise be subject to this Court’s further review. Accordingly, this Court should reject A p pellant’s petition for jurisdiction. Respectfully submitted, THE LEGAL AID SOCIETY OF COLUMBUS /s/ Stuart Y. Itani Stuart Y. Itani (0075563) 1108 City Park Avenue Columbus, Ohio 43206 (614) 737 - 0115 (614) 224 - 4514 (fax) sitani@columbuslegalaid.org 4 As previously mentioned in footnote 2 of this Memorandum, Mr. Worku did not present all relevant portions of the record to the Court of Appeals and this Court should presume the regularity of the trial court’s proceedings. 13 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served on January 22 , 201 8 on the following: E. Darren McNeal (via electronic mail and regular mail ) E. Darren McNeal Co., LLC 100 East Main Street Columbus, OH 43215 dmcneal@mcneallaw.com THE LEGAL AID SOCIETY OF COLUMBUS /s/ Stuart Y. Itani Stuart Y. Itani (0075563) Attorney for Appellee 1108 City Park Avenue Columbus, Ohio 43206 (614) 737 - 0115 (614) 224 - 4514 (fax) sitani@columbuslegalaid.org (e - ma