Ns2011-1365

In the Supreme Court of Ohio

WILLIAM R. LINDSLEY, ESQ.

Plaintiff-Appellee,

V.

GREGORY ROE, et al.

Defendants-Appellants.

Discretionary Appeal From theCourt of Appeals, Sixth Appellate District

Lucas County, OhioCase No L10-1243

MEMORANDUM IN OPPOSITION TO JURISDICTION

MARC J. MEISTER (001953)Marc J. Meister & Associates6545 W. Central Ave., Ste. 202Toledo, Ohio 43617(419)865-9622 (Telephone)(828) 505-4731 (Telefax)marc@meisterlegal.comAttorney for Defendants AppellantsGregory Roe and Willys-Overland Motors,Inc.

sSEP 072O11

CLERK OF COURT

D

SUPREME COURT OF OHIO

ROBERT H. EDDY (0030739)[attorney of record]GALLAGHER SHARP420 Madison Avenue, Suite 1250Toledo, Ohio 43604(419) 241-4860 (Telephone)(419) 241-4866 (Telefax)reddy@gallaghersharp.comAttorneyfor Plaintiff-AppelleeWilliam R. Lindsley, Esq.

^^P Q 7 2Ol3

CLERK OF COUR1'SUPREME COURT OF OHIO

FRITZ BYERS (0002337)520 Madison Ave., Suite 836Toledo, OH 43604(419) 241-8013 (Telephone)(419) 241-4215 (Telefax)fritz@fritzbyers.comAttorney for Defendants AppellantsGregory Roe andWillys-Overland Motors, Inc.

R. MICHAEL FRANK (0011118)420 Madison Ave., Suite 1101Toledo, Ohio 43604(419) 243-9005 (Telephone)(419) 243-9404 (Telefax)Attorney for WOMLttL

COLLEEN A. MOUNTCASTLE (0069588)GALLAGHERSHARPSixth Floor - Bulkley Building1501 Euclid AvenueCleveland, Ohio 44115(216) 241-5310 (Telephone)(216) 241-1608 (Telefax)cmountacastle@gallaghersharp.comAttorneyfor Plaintiff-AppelleeWilliam R. Lindsley, Esq.

C. THOMAS MCCARTER (0012986)4303 Mockingbird LaneToledo, OH 43623(419) 255-9100 (Telephone)(419) 255-9100 (Telefax)tmccarter@sbcglobal.netAttorney for Plaintiff-AppelleeWilliam R. Lindsley, Esq.

TABLE OF CONTENTS

Paee

L EXPLANATION OF WHY THE ISSUES RAISED IN THIS CASE ARE NOT OFPUBLIC AND GREAT GENERAL INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

H. STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IIi. ARGUMENT OPPOSING APPELLANTS' PROPOSITIONS OF LAW . . . . . . . . . . . . 3

Proposition of Law I:When reviewing a trial court's decision granting summaryjudgment, an appellate court must conduct a de novo review. In doing so, theappellate court must independently review the evidence to determine whether as amatter of law no genuine issues of material fact exist for trial while construing theevidence most strongly in favor of the nonmoving party . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Proposition of Law lI: It is actionable negligence for a trial lawyer to waive ashareholder's right to assert the affirmative defense of corporate shield to a claimseeking enforcement of a contract for the sale of corporate goods when theshareholder has no personal obligation to sell the goods under the tenns of thecontract . ....................:.....................................:....4

Proposition of Law III: It is actionable negligence for a trial lawyer to fail toprovide timely counsel to a client as to the risks and benefits of providing specificperformance in order to reduce or foreclose monetary damages for breach of asettlement agreement so that the client can make an informed decision whether tooffer specific performance even though the client indicated earlier, at a time whenhe was not informed as to the risks and benefits, that he was not so inclined .......... 5

Proposition of Law IV: It is actionable negligence for a trial lawyer to fail topreserve a client's constitutional right to a civil jury trial without first obtainingthe client's informed consent to waive that right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Proposition of Law V: A client is entitled, at a minimum, to nominal damageswhere the trial lawyer negligently waives the client's constitutional right to a civiljury trial, even though the injury to the client may be difficult to measure inmonetary terms . ......................................................... 6

Proposition of Law VI: A lawyer's negligent waiver of a clien- t's-constitutionalright to a civil jury trial serves as a partial offset or a total bar to the lawyer'sclaim for payment of fees in the handling of litigation where the lawyer is seekingfees for preparation of voir dire examination, jury exhibits, jury instructions, and

i

other jury-related matters that are of no value to the client once the lawyer haswaived the client's right to a jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CONCLUSION . ....................................................... 11

CERTIFICATE OF SERVICE . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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I. EXPLANATION OF WHY THE ISSUES RAISED IN THIS CASE ARE NOT OFPUBLIC AND GREAT GENERAL INTEREST

This lawsuit arises out of Plaintiff-Appellee, William R. Lindsley's ("Lindsley")

representation of Defendants-Appellants, GregoryRoe and Willys-Overland Motors, Inc. ("Roe and

Willys" or "Appellants") in an underlying lawsuit entitled W.O.M. Ltd. v. Willys-Overland Motors,

Inc. and Gregory Roe. In the present action, Lindsley sought fees for legal services performed on

behalf ofAppellants in the underlying lawsuit, and Roe and Willys asserted a legal malpractice claim

against Lindsley.

Section 2(B)(2)(e) of Article IV of the Ohio Constitution dictates that the Supreme Court of

Ohio's discretionary jurisdiction is reserved for "cases of public or great general interest." There is

nothing unique about this case nor is it ofpublic or great general interest. Cases presenting questions

and issues of public or great general interest are to be distinguished from cases where the outcome

is primarily of interest to the parties in a particular piece of litigation. Williamson v. Rubich (1960),

171 Ohio St. 253, 254. This appeal falls squarely into the latter category.

For an issue to be of public and great general interest, it must have the potential to affect all

citizens of Ohio. Here, application of the second through sixth proposed propositions of law are

limited to a very specific set of circumstances. These propositions of law will not have a sweeping

impact on all citizens of Ohio because these propositions will only apply in the narrow context of

this case. The second through sixth propositions of law should be rejected because they do not set

forth proposed general proclamations of Ohio law, but instead seek to correct a perceived error

relativ-eto-this-case. The first-propositionof law proposed by Appellants-mere'.y recites-existing

Ohio law regarding the summary judgment standard, and therefore, there is no need for this court

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to revisit the issue.

Based upon the foregoing, this Court should decline to exercise jurisdiction in this case.

H. STATEMENT OF THE CASE AND FACTS

Roe and Willys originally filed this action alleging legal malpractice claims against Lindsley

on December 28, 2007. On February 25, 2008, Lindsley timely filed his Answer and Counterclaims

against Roe and Willys for money due him for legal services performed on behalf of Roe and Willys

in the underlying case. On November 3, 2008, Roe and Willys dismissed, without prejudice, their

legal malpractice claims against Lindsley. Thus, the only claim remaining was Lindsley's

counterclaim for money due from Roe and Willys for legal services performed on their behalf As

a consequence, the trial court realigned the parties, and Lindsley became the plaintiff in this matter.

Thereafter, Roe and Willys refiled their legal malpractice claim against Lindsley.

Lindsley sought summary judgment in his favor on his claim for fees and on Roe and Willys'

claims for legal malpractice. On July 29, 2010, the trial court granted summary judgment in favor

of Lindsley on both his claims for fees and on Roe and Willys' malpractice claims, which the Sixth

Appellate District properly upheld on June 30,2011. See, Lindsley v. Roe, 6' Dist. No. L10-1243,

2011-Ohio-3235.

In thorough decisions regarding the malpractice claim, both the trial and appellate courts

addressed each of the issues raised in the propositions of law currently proposed by Appellants.

With respect to the second proposition of law, the trial and appellate courts accepted Lindsley's

argument that the defense of a "corporate shield" from personal liability could not have been

successfully asserted because Roe signed the underlying asset purchase/sale agreement in his

individual capacity as well as in his corporate capacity as the president of Willys, was bound

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individually and any breach of that agreement would result in his personal liability.

With respect to Lindsley's claimed failure to recommend specific performance to Roe and

Willys (the subject of Appellants' third proposition of law), the trial and appellate courts found that

there was no disputed issue of fact that the underlying case could not have been resolved by a

settlement based upon specific performance because Roe had explicitly eschewed any settlement

with W.O.M. in the underlying case. Roe testified that he would not settle without a personal

financial statement from the owner of W.O.M. and Roe never got one.

Finally, with respect to the lack of a jury trial (the subject of the fourth through sixth

propositions of law), the trial and appellate courts determined that even assuming that Lindsleyfailed

to obtain a jury trial in the underlying case, there was no evidence of any damages proximately

resulting from the underlying case being tried to a judge rather than to a jury.

In a separate entry, the trial court also granted summary judgment in favor of Lindsley on his

claim for fees against Roe and Willys in the amount of $25,790.00. The Sixth Appellate District

affirmed the trial court's decision.

III. ARGUMENT OPPOSING APPELLANTS' PROPOSITIONS OF LAW

Appellants' Proposition of Law No. I states: When reviewing a trial court's decision grantingsummary judgment, an appellate court must conduct a de novo review. In doing so, the appellatecourt must independently review the evidence to determine whether as a matter of law no genuineissues of material fact exist for trial while construing the evidence most strongly in favor of the

nonmoving party.

Appellants' very first paragraph of argument underthis proposition of law acknowledges that

the standard of review of decisions relative to summaryjudgment have been well-established bythis

Court. Thus, Appellants' first proposition of law should be rejected because it simply re-iterates

a well-settled principle of Ohio law.

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Appellants' Proposition of Law No. II states: It is actionable negligence for a trial lawyer to waivea shareholder's right to assert the affirmative defense of corporate shield to a claim seekingenforcement of a contract for the sale of corporate goods when the shareholder has no personalobligation to sell the goods under the terms of the contract.

The genesis of the underlying dispute between Roe, Willys and W.O.M. was a contract for

the sale of auto parts between Appellants and W.O.M., Ltd. When problems with the performance

of that agreement arose, W.O.M. brought suit and the matter was referred to a mediator who

fashioned a settlement. Lindsley was not counsel for Appellants at the time of the mediation. When

performance issues on the settlement agreement arose, Lindsleywas engaged as Appellants' counsel

at this stage of the proceedings.

The Sixth Appellate District considered the evidence as a whole to determine the merits of

Roe's claims in this case that he should not have been found to be individually liable to W.O.M. in

the underlying case and that Lindsley committed malpractice in failing to assert a defense. However,

Roe signed the agreement with W.O.M. in his individual capacity and had mediated his individual

liability during the mediation that resulted in a settlement that Appellants' breached. The Sixth

Appellate District noted that the draft settlement agreement (prepared byAppellants' attorneybefore

Lindsley) contained a signature line for Roe in his individual capacity. See, Lindsley at ¶26. Thus,

the Sixth Appellate District properly concluded that Lindsley did not commit legal malpractice by

not asserting the corporate shield defense because this defense had no merit. See, Lindsley at ¶30.

However, even assuming for the sake of argument only that the appellate court somehow

erred in its ruling below, this proposition of law should be rejected because it does not set forth a

proposed-gener-al-proe-latnation of Ohio law, but in- stead- seeks to correet a perceived errorir,-th:s

case.

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Appellants' Proposition of Law No. III states: It is actionable negligence for a trial lawyer tofail to provide timely counsel to a client as to the risks and benefits of providing specificperfonnance in order to reduce or foreclose monetary damages for breach of a settlement agreementso that the client can make an informed decision whether to offer specific performance even thoughthe client indicated earlier, at a time when he was not informed as to the risks and benefits, that hewas not so inclined.

The very language of Proposition of Law III establishes that it is a fact-driven proposition,

and is not a general statement of law that should apply in the State of Ohio. Thus, the Appellants'

third proposition of law should.be rejected by this Court.

Appellants present a sanitized version ofthe evidence to suggest that theywould have settled

if Lindsley would have provided counsel sooner. However, these arguments regarding settlement

are inherently speculative and against the weight of the factual evidence. There is clear evidence that

Roe expressed he would not settle the underlying case. As there is no real indication that his position

on the matter changed, or that he would have accepted Lindsley's advice if given earlier, any

argument to that effect is speculative at best. The Sixth Appellate District correctly determined that

when Roe terminated the services of his "settlement" attorney and engaged those of Lindsley, who

describes his practice as "80% litigation," Roe had elected not to settle the underlying matter but to

fight until the bitter end. See, Lindsley at ¶35.

The Sixth Appellate District appropriately found that there was no evidence to indicate that

Roe was willing to settle at any time prior to the day the court in the W.O.M. v. Roe case announced

its determination of Appellants' breach of the settlement agreement. It is unrefuted that Appellants

were aware of the costs and consequences of not settling. There is nothing in the record to suggest

that theywould settle no matter whoadvi-sed them-to doso. Indeed, thereis mach ap.Roe'sdeposition

testimony to suggest that he had a deep enmity toward W.O.M.'s president, and little to suggest any

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inclination to compromise. The record is devoid of evidence of any reasonable possibility that

Appellants would have acted on the advice that Appellants insist should have been rendered. See,

Lindsley at ¶39. Thus, the Sixth Appellate District correctly determined that there was no evidence

to support a legal malpractice claim against Lindsley for his behavior. See, id.

Proposition of Law III not only lacks merit, it also relates specifically to the facts of this case

and the application of those facts to the current law. As such, this Court should reject this

proposition.

Appellants' Propositions of Law Nos. IV and V state: It is actionable negligence for a trial lawyerto fail to preserve a client's constitutional right to a civil jury trial without first obtaining the client'sinformed consent to waive that right.

AND

A client is entitled, at a minimum, to nominal damages where the trial lawyer negligently waives theclient's constitutional right to a civil jury trial, even though the injury to the client may be difficultto measure in monetary terms.

Appellants' fourth and fifth propositions of law ask this Court to determine that Appellants

are entitled to damages because the underlying case was tried to a judge rather than a jury.

As the appellate court properly determined, while there is a constitutional right to a jury trial

in civil law suits pursuant to Section 5, Article 1; Ohio Constitution, "[t]he right to a jury trial may

not be impaired, but it `may be subj ect to moderate and reasonable regulation. "' See, Lindsley at ¶44,

citing, Skiadas v. Finkbeiner, 6th Dist. No. L-05-1094, 2007-Ohio-3956, ¶ 23, quoting Walters v.

Griffith ( 1974), 38 Ohio St. 2d 132, 133. "Local courtrules, requiring an advance deposit as security

for the costs of a jury trial and providing that the failure of a party to advance such deposit

constitutes a waiver of the right to a trial by jury, are moderate and reasonable regulations of the right

of trial by jury, and are constitutional and valid." Id.

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Appellants' "no jury trial" malpractice claim fails to state a claim for relief because the

element of proximate cause is impossible to prove. Although a malpractice plaintiff may find an

expert to testify that he or she would have tried the case to a jury, there is no way to establish

proximate cause or calculate monetary damages - - required elements in a legal malpractice claim.

See, Jones Motor Co., Inc. v. Holtkamp, Liese, Beckemeier & Childress, P.C. (7th Cir. 1999), 197

F.3d 1190, 1194. ("No reasonable trier of fact could have been allowed to award damages to Jones

and its insurer on the basis of such unsubstantiated expert testimony.") In Jones, the court held that

the variance among juries makes it legally impossible to prove the proximate cause of any damages

between what the amount a judge awards and the amount the malpractice claimant asserts a jury

might have awarded. Id. at 1195. "Through the [attorney's] negligence Jones and its insurer lost

their right to a jury trial and were forced to submit to a bench trial-which means they got a trial

before an authorized tribunal." Id. at 1192. (Emphasis added.)

Similarly, Appellants received their day in court in the underlying case. Appellants appear

to contend they would have obtained a defense verdict of no monetary damages awarded to W.O.M.

if only a jury had heard the case - - that is, that visiting judge, Judge Yarborough got it all wrong,

despite the fact that his judgment was affirmed on appeal in the underlying case. Any argument that

a bench trial versus a jury trial would have been more fair is insulting to members of the bench.

Therefore, besides being impossible to prove proximate cause, it is improper for Roe and Willys to

argue that they have been damaged by having a bench trial instead of a jury trial.

Other courts have cited Jones Motor to reach the same conclusion. "While [plaintiff] claims

that its chances for recovery were `significantly and materially greater than before a judge,' it has

not alleged any facts to support a reasonable inference that it would have been more advantageous

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to proceed before a jury." Fabricare Equip. Credit Corp. v. Bell (Ill. App. Ct. 1 st Dist. 2002), 328

Ill. App. 3d 784, 791. See, also, Hatfield v. Herz (S.D.N.Y. 2000), 109 F. Supp. 2d 174, 187 (citing

Jones.) Appellants have no evidence that a standard of care was breached or that they were damaged

by having their case tried to the bench instead of to a jury in the underlying case.

Damages from the deprivation of a procedural due process right, such as the right to a jury

trial, are not ordinarily allowed `without evidence of actual loss."' Lindsley at ¶45, citing, Carey v.

Piphus (1978), 435 U.S. 247, 263. Appellants simply failed to put forth any evidence of damages

derived from the case being tried to the bench rather than to a jury. Lindsley at ¶46.

Appellant's reliance on C.R. Withem Enterprises v. Maley, 5' Dist. No. 01 CA54, 2002-Ohio-

5056, is misplaced. While it is true that the court in C.R. Withem upheld a trial court's award of

nominal damages due to an attorney's failure to secure a jury trial by paying the appropriate jury

deposit fee, the issue before the court was not whether the trial court should have awarded nominal

damages, but whether the court should have awarded compensatory damages. C.R. Withem

concluded that, absent proof of damage, the trial court did not err in awarding no more than nominal

damages. Id. at ¶ 52. As the Sixth Appellate District correctly noted, nothing in that case mandates

an award of nominal damages and thus, there was no error relative to the trial court's omission of

consideration of such an award here. Lindsley at ¶46.

This Court's DeCastro v. Wellston City School Dist. (2002), 94 Ohio St.3d 197, decision is

distinguishable from the matter at bar. In DeCastro, this Court held "if a plaintiff proves breach of

contract at trial, but fails to prove actual damages resulting from that breach, the trial court may enter

judgment for the plaintiff and award nominal damages." (Emphasis added.)

First, DeCastro is limited to breach of contract claims, only. Second, DeCastro explains that

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nominal damages are not always awarded in such a situation.

Even if it is assumed that the DeCastro decision can be applied in a situation where an

attorney fails to secure a trial byjury by submitting the appropriate jury deposit, ajudgment in favor

of a defendant should not be reversed simply to allow nominal damages to be awarded below.

DeCastro at 200. DeCastro ultimately determined that even though a significant right was involved,

summary judgment was properly awarded to the defendant because the plaintiff was unable to

establish the existence of economic damages. See, DeCastro at 200-201. Noting the public policy

basis for its decision, this Court stated "in such a situation, the defendant would be required to spend

time and money in litigation having no purpose other than to judicially establish that he or she

committed a breach of contract with no economic consequences." Id. Appellants failed to establish

any monetary damages related to the alleged legal malpractice. Lindsley at ¶46. Thus, similar to

DeCastro, Appellants seek to overturn a summary judgment simply to judicially establish legal

malpractice which resulted in no economic loss.

Most significantly, the issue before this Court is whether or not this proposition of law is of

general interest. There is simply no basis for this Court to accept this proposition of law, as it is

particular to the case at hand and will not serve as guidance to the courts in the State of Ohio or to

litigants in other matters. For these reasons, the fourth and fifth propositions of law should be

rej ected.

Appellants' Proposition of Law No. VI states: A lawyer's negligent waiver of a client'sconstitutional right to a civil jury trial serves as a partial offset or a total bar to the lawyer's claimfor payment of fees in the handling of litigation where the lawyer is seeking fees for preparation ofvoir-dire exa -m- ination, jur-y exhibits-, juryinstruetions -and-other jury-related-matters-th- at-are of-novalue to the client once the lawyer has waived the client's right to a jury.

In seeking further appeal to this Court, Appellants seek a set-off from the fees awarded to

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Lindsley for "preparation of voir dire examination, jury exhibits, jury instructions and other jury-

related matters" because this matter was tried to a bench rather than a jury. This challenge to the

value of the services provided by Lindsley was not raised below, and thus, was not before the

appellate court upon its review of the trial court's decision in Lindsley's favor. Thus, this

proposition of law should be rejected because this Court does not rule on issues which have not been

addressed or resolved by the lower courts. See, Banks v. Ohio Power Co. (1952), 157 Ohio St. 10,

14. See, also, Holman v. GrandviewHosp. &Med. Ctr. (1987), 37 Ohio App.3d 151,157 ("Issues

not raised and tried in the trial court cannot be raised for the first time on appeal.")

Appellants' argument, that Lindsley is not entitled to fees because he materiallybreached his

contractual obligations, must also fail. A claim against an attorney arising from the manner in which

the attorney represented a client is a claim of malpractice "regardless of whether predicated upon

contract or tort or whether for indemnification or for direct damages." Muir. v. Hadler Real Estate

Management Co. (1982), 4 Ohio App. 3d 89, 90. Thus, "[m]alpractice by any other name still

constitutes malpractice." Id. The same facts that preclude a finding of malpractice in this case

therefore also preclude Appellants' breach of contract claim.

Lindsleycompetentlyperformed numerous services on behalfofAppellants, (1) Lindsleywas

not required to assert the corporate shield defense because Roe had clearly assumed individual

liability, (2) Roe had repeatedly expressed a clear intent not to settle the underlying matter, and (3)

failure to obtain ajury trial did not harm the Appellants' interests. Simply put, Appellants could not

show that any actions taken by Lindsley caused a material breach of his contractual obligations.

Accordingly, the only party in material breach were Appellants due to their failure to compensate

Lindsley for his legal services. Therefore, the Sixth Appellate District correctly upheld the trial

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court's summary judgment in favor of Lindsley in the amount of $25,790.00 for fees owed to him

for legal services provided to Appellants.

Proposition of Law VI is a fact-driven proposition of law that is not applicable to the general

public, but is specific to the case at hand. As such, it is an improper proposition of law and should

not be accepted by this court for review.

IV. CONCLUSION

Allowing the Sixth Appellate District's decision to stand will not alter the proper

development ofthe law relating to legal malpractice claims. Nothing needs to be clarified, modified,

or changed,in regard to existing law. While Appellants may complain about the application of the

settled law to the particular facts of this case, addressing such concerns is not grounds for this Court

to exercise discretionary jurisdiction over an appeal. See, Baughman v. State Farm Mutual

Automobile Insurance Company, 88 Ohio St. 3d 480, 492, 2000-Ohio-397 (Cook, J., concurring).

Wherefore, Plaintiff-Appellee, William R. Lindsley, Esq., respectfully requests and moves

this Court to decline jurisdiction over this appeal.

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Respectfully submitted,

ROBERT H. EDDY (0030739)GALLAGHER SHARP420 Madison Avenue, Suite 1250Toledo, Ohio 43604(419) 241-4860 (Telephone)(419) 241-4866 (Telefax)reddy@gallaghersharp.com

and

COLLEEN A. MOUNTCASTLE (0069588)GALLAGHER SHARPSixth Floor - Bulkley Building1501 Euclid AvenueCleveland, Ohio 44115(216) 241-5310 (Telephone)(216) 241-1608 (Telefax)cmountacastle@gallaghersharp.oomAttorneys for Plaintiff-AppelleeWilliam R. Lindsley, Esq.

C. THOMAS MCCARTER (0012986)4303 Mockingbird LaneToledo, OH 43623(419) 255-9100 (Telephone)(419) 255-9100 (Telefax)tmccarter@sbcglobal.netAttorney for Plaintiff-AppelleeWilliam R. Lindsley, Esq.

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CERTIFICATE OF SERVICE

A copy of the foregoing Memorandum in Opposition to Jurisdictiorx was served upon thefollowing via regular U.S. mail on this A Alfay of September, 2011:

Marc J. MeisterMarc J. Meister & Associates6545 W. Central Ave., Ste. 202Toledo, Ohio 43617Attorney for Defendants-AppellantsGregory Roe and Willys-Overland Motors, Inc.

Fritz Byers520 Madison Ave., Suite 836Toledo,, OH 43604Attorney for Defendants-AppellantsGregory Roe and Willys-Overland Motors, Inc.

C. Thomas McCarter4303 Mockingbird LaneToledo, OH 43623Attorney for Plaintiff-AppelleeWilliam R. Lindsley, Esq.

R. Michael Frank420 Madison Ave., Suite 1101Toledo, Ohio 43604Attorneyfor WOM Ltd.

ROBERT H. E ^^;^Sq (0030739)COLLEEN A. MOUNTCASTLE, ESQ. (0069588)GALLAGHER SHARPAttorneys for Plaintiff-AppelleeWilliam R. Lindsley, Esq

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