/ IN THE COURT OF APPEALS SECOND JUDICIAL DISTRICT CLARK COUNTY, OHIO ERIC R. CROW, ET AL. Plaintiff-Appellant Appellate Case No. 2016-CA-56 v. MARGARET BALDINO Appeal from the Clark County Defendant-Appellee Municipal CourtTrial Court Case No. 15-CVF-2981 BRIEF OF INTERVENOR Kenny Hendrick 3rd Party Andrew Elder Kenny Hendrick 2233 N. Limestone St. 2803 Road Springfield, Ohio 45503 Springfield, Ohio 45504 (937) 399-9709 (937) 718-3586Appellee Appellant Margaret Baldino 1734 Yardley Circle Centerville, Ohio 45459
TABLE OF CONTENTS Page Table of authorities iii Statement of the Assignment of Errors 1 Statement of the Issues Presented 2 Statement of the Case 3 Statement of the Facts 3 Argument and Law 4,5,6 Conclusion 6 Certificate of Service 7 Appendix 8 App. A: August 29, 2016 Judgment Entry of the Trial Court A-1 App. B: August 29, 2016 Judgment Entry of the Trial Court A-2 App. C: Intervenor’s Motion to Intervene A-3 – A-3.6 App. D: Intervenor’s Motion to Correct the Record A-4 – A-4.7 TABLES OF AUTHORITIES CASES Pages Shields v. Barrow, 58 U.S. (17 HOW.) 130, 139, 15 L. Ed. 158B 6 CODE SECTIONS 24(a) 4 24(b) 4 OTHER AUTHORITIES Rule 19(a), (b), (c), et.al. 5
iii ASSIGNMENT OF ERRORS Trial Court Judge’s official determination was against the manifest weight of the evidence provided within the Intervenor’s Motion to Correct the Record, in violation of Ohio R. CP. 24(a)(2). Trial Court Judge’s official determination was against the manifest weight of the evidence provided within the Motion to Intervene, in violation of Ohio R. CP. 24(b)(2). The Trial Court erred by denying evidence provided by the Intervenor, submitted prior to Pre-Trial, presented in the Motion to Intervene and/or the Motion to Correct the Record, in violation of Federal Rules of Civil Procedure › TITLE IV. PARTIES Rule 19(1)(a)(b)(i)(ii) et.al.
1 ISSUES PRESENTED FOR REVIEW The Plaintiffs’ Attorney recognizes the third-party Intervenor in its Fair Debt Collection Notice, which was included in the Motion to Intervene. Why would the Plaintiffs’ Attorney address the Intervenor at all unless the Intervenor was a subject of interest to be reckoned with? The Intervenor, himself, brings the issue to the Trial Court before Pre-Trial in two motions aforementioned. What profit would the Intervenor have to become involved in an issue that would put the Intervenor potentially in harms way? The Trial Court erred by allowing an issue to proceed to Trial without first establishing Subject Matter Jurisdiction. Shouldn’t there be a shred of evidence to proceed through Pre-Trial to validate a Claim toward Trial? The Trial Court erred when Intervenor presented video evidence that clearly shows live damages being done to ceiling tiles and flooring from flooding caused by the Plaintiffs’ plumbing from above. Is it possible to re-create disasters in a building that was vacated about a year before the Plaintiffs filed suit? 2
STATEMENT OF THE CASE Eric and Theresa Crow, Plaintiffs, brought this Action against Margaret Baldino, Defendant in the Municipal Court of Clark County alleging that, “Defendant failed to leave the premises in good condition, ordinary wear and tear excepted, have caused the destruction of fixtures of the premises and excessive trash and filth on the premises. Extensive cleaning and repairs were required of Plaintiffs as outlined in Exhibit B attached hereto, all to the damage of the Plaintiffs.” The Intervenor timely filed his Motion to Intervene and Motion to Correct the Record prior to Pre-Trial on July 26, 2016 and August 2, 2016 respectively. On September 20, 2016 the matter went to Pre-Trial where the Defendant’s Attorney declined to follow through with representation. The Defendant was instructed to obtain another Attorney without Cause, and Trial was set for December 1, 2016. STATEMENT OF FACTS It is understood that the bulk of the Intervenor’s Motion to Correct the Record were predominantly unsubstantiated statements made by the Intervenor. However, it would seem apparent that due to a male’s voice contained within the video stated therein, that perhaps the Defendant, being female, might present question as to the legitimacy of the Intervenor’s Motions to the Court. However, Intervenor now recognizes the error in not attaching a DVD, as opposed to directing the Trial Court to point toward YouTube.com, the videos would have had more weight within the Trial Court had the Intervenor done so. The Intervenor’s Motions were subsequently Denied.
3 ARGUMENT AND LAW ASSIGNMENT OF ERROR Trial Court Judge’s official determination was against the manifest weight of the evidence provided within the Intervenor’s Motion to Correct the Record. Ohio RCP 24 (a)(2) (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. Trial Court Judge’s official determination was against the manifest weight of the evidence provided within the Motion to Intervene. Ohio RCP 24 (b)(2) (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
4 The Trial Court erred by denying evidence provided by the Intervenor in the matter before the Trial Court, presented in both the Motion to Intervene and the Motion to Correct the Record. Federal Rules of Civil Procedure › TITLE IV. PARTIES Rule 19 1(a)(b)(i)(ii) et.al. (a) Persons Required to Be Joined if Feasible. (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. (2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff. (3) Venue. (b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include: (1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; (3) whether a judgment rendered in the person's absence would be adequate; and…
5 Also, Shields v. Barrow, 58U.S.(17HOW.) 130, 139,15 L. Ed. 158B The court here point out: ...2.)Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties. 3.) Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. CONCLUSION Whether the material interest be in the dispute of the allegations of the Plaintiffs, or in defense of the Defendant, it is certain that without the third-party intervenor, the aged-Defendant would not have been dealt with properly by the Court. The Defendant has NOTHING to offer in her defense. Whereas, The third-party Intervenor has claimed to have testimony and first-person witness of the damages as they were occurring. Justice would demand the third-party Intervenor to be present in some fashion to weigh against the Defendant’s lack of a defense, as well as the Plaintiffs’ lack of… For the foregoing reasons, the Intervenor prays that this Court reverse the Trial Court’s decision and remand the matter for a new trial or a dismissal of the old one. Kenny Hendrick Appellant
6 CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT A COPY OF THE FOREGOING Brief and Assignments of Error was sent to Appellee’s counsel, Andrew H. Elder, 2233 N. Limestone St. Springfield Ohio 45503, by ordinary U.S. mail on the 29th day of November, 2016 Kenny Hendrick Appellant 7