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Roger
Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 26098
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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another question crossed my mine if you are appealing a case,

Resolved Question:

another question crossed my mine if you are appealing a case, do you in explaining how the court abused discretion by not acknowledging the operative facts presented in your brief during the trial, submit the whole brief and exhibits as well, or is it not necessary due to the fact they will call for the whole record any way?
Submitted: 12 months ago.
Category: Real Estate Law
Expert:  Roger replied 12 months ago.
Hi - thanks for looking me up again!

You don't submit exhibits with the brief. Instead, you would just reference the portions of the portions of the record you are referring to. Since the court has the record, that's all you should have to do.
Customer: replied 12 months ago.

if a judge disregards XXXXX XXXXX demand of a stay of execution is that an abuse of discretion is there any case law that shows that?

Expert:  Roger replied 12 months ago.
It would likely be an abuse IF the judge didn't consider the arguments made by the party. Deciding against a party isn't an abuse, but refusing to hear a party's argument is likely abuse.
Customer: replied 12 months ago.

example if you stated i would like to proffer and the court says not now, the court proceeds the party says you have not read my motion yes i did i over ruled you goes on with the the hearing at the end the party says i demand a stay of execution so that i can appeal but he passed the order any way

Expert:  Roger replied 12 months ago.
If it can be show that the court denied a party his/her right to even argue a motion, that would be a basis to claim an abuse of discretion. Even if the judge were going to deny the motion, he/she could still allow the party to state his/her claim. Thus, the fact that the court just outright denied the motion is unusual and certainly could be considered as an abuse of discretion - - but it all boils down to the facts and how the appeals court views the actions of the judge.
Customer: replied 12 months ago.

right, but is it in a judges discretion to summarily disregard a request for a stay pending an appeal?

Expert:  Roger replied 12 months ago.
There's no absolute when it comes to determining an abuse of discretion by a judge. It's a fact-sensitive issue. However, anytime a judge summarily denies a motion without giving a party the chance to argue his/her position, there's certainly a basis to claim that the judge abused his/her discretion.
Customer: replied 12 months ago.

want to ask you a question i was reading a case law were it cites a case law but afterwords it says omitted and emphasis added what does that mean?

Expert:  Roger replied 12 months ago.
'"Omitted" usually means that a citation is omitted from the opinion - - such as authority for the statement/standard wasn't put into the opinion.

"Emphasis added" means that a point of law is being stressed by the opinion.
Customer: replied 12 months ago.

does it mean that the citation is no longer in standing, do you have any case laws that speaks on rule 60 b being a safeguard for due process, or civil cases speaking on rules that are safeguards of due process.

Expert:  Roger replied 12 months ago.
No, it doesn't mean that the case is no longer binding or valid. It just means that the court didn't take time insert a citation - - usually because its a well settled area of law and a citation is not really necessary.

One of the reasons the rules were created is to create a uniform procedure, but I don't know if there is a case that specifically says this.

In one of our previous conversations, I pasted the annotations from the rule - - which are the cases that interpret the rule. However, I haven't reviewed that in a while, but it may be something there. I'm traveling now, but I'll be glad to look at the rule later and post any annotations that are relevant.
Customer: replied 12 months ago.

ok, enjoy your trip, i was just thinking if that would be good to use in my brief as the rule being viewed as such, i took it from the Boston university of law journal volume 15, but i didn't no if it would be recognized universally as sound ?

Expert:  Roger replied 11 months ago.
Hi -

There is no annotation that specifically addresses the due process elements of rule 60. However, the rules certainly were enacted to ensure constitutional due process.
Customer: replied 11 months ago.

esq. adams can you through this in the search engine and see if any case comes up explaining it i took it out of blacks law : De simillbus idem est judicandum

Expert:  Roger replied 11 months ago.
It just means that things are the same/judgment is the same. Also, there's not a reported case for Ohio that references this term.
Customer: replied 11 months ago.

i wanted to use it for an example of equality under the law if one is held to a rule then all must be held to the same rule

Expert:  Roger replied 11 months ago.
Sure, you can make that legal analogy, but there aren't any reported decisions from Ohio to reference.
Customer: replied 11 months ago.

so it may not have standing, even if its found in blacks law dictionary

Expert:  Roger replied 11 months ago.
It's a relevant legal term - it's just not used very often.
Customer: replied 11 months ago.

last question in ohio they have statutes that govern reallocation of parenting rights example: 3109.04, however; it doesnt mention any actual stipulation on the residential parent intent to relocate. Statute 3109.051(G)(1) states: If the residential parent intends to move to a residence other than the residence specified in the parenting time order or decree of the court, the parent shall file a notice of intent to relocate with the court that issued the order or decree. However; I've read in a citation that the intent of the statute was for married couples and the use of it contrary to that would be misplaced. Due to the fact that custody matters are judicial they should be govern by statutes of law correct. So if a judgment is issued that states: "the legal custodian shall file a notice of intent to relocate with this court prior to moving from the jurisdiction of this court", this would rule that governs the party's and also doesn't it have to have its finding in law or a statute, but; there is no verbiage found like this in the statutes except 3109.051, so in that instance would it be appropriate to use or not?

Expert:  Roger replied 11 months ago.
The court order is considered "common law", which is law created by judges through judgments and orders based on their interpretation of the statutes. So, it would be relevant to refer to the statute.
Customer: replied 11 months ago.

ok, what do think about this, in the judgment entry it doesn't articulated any statute just that verbiage aforementioned, so does the common law of the judge have to be based on substantial law?

Expert:  Roger replied 11 months ago.
This is a discretionary issue, but the judge's ruling should be consistent/in line with statutory language.
Customer: replied 11 months ago.

so in a case like i mentioned when the language is off a word or so but clearly states "shall file a notice of intent to relocate" and no other statute has stipulations in it with that language pertaining to that topic but 3109.051(G)(1) it can be greatly inferred that this is the foundation of the rule of that court, how would you defend it when its vague

Expert:  Roger replied 11 months ago.
There's likely no defending it in terms of having the order found invalid on that point as the court can exercise discretion on this type of issue because it can be said that it's in the best interest of the child to have this provision - - which gives the judge authority.
Customer: replied 11 months ago.

no, i mean present it to support your claim, if a parent moved and has relocated and has not informed the other party of whereabouts of children in a year, but the the judgment stated what i mentioned earlier, which in all the forms by the courts here for intent to relocate state pursuant to R.C. 3109.051, they haven't promulgated any other rule besides that, this would lead one to believe that do to the language in judgment entry this was the governing rule?

Expert:  Roger replied 11 months ago.
The terms of the judgment ARE what governs the parties - - no doubt about that.
Customer: replied 11 months ago.

but if a judge stated that in the entry and now your trying to show that the other party has not abided by this rule the has to be supported by something because judges are not the law nor do they make the but orate it, correct; so how could you find the bases of that rule or how would you present it to a tribunal that this was the rule and this is the law that supports it?

Expert:  Roger replied 11 months ago.
If the judge orders something, it's the "law of the case" and that's the authority that all parties are subject to. If a party doesn't like it, the relief is to appeal the decision. If the order isn't appealed, then the order stands. You really don't need more authority than the court's own order.
Customer: replied 11 months ago.

let explain it to you better the aforemention order came down from a court subsequently one parent disappeared and remove children from the last school with no new address after 5 months one party's files a complaint stating the parent has moved and has not seen children in 5 months the complaint comes back return to sender certified at which time service through publication was made next month a reply comes from court stating that the party was not served properly perfect service or case dismissed however the first party never gave notice of intent to relocate which was a part of the order, also the complaint went to both address before it was returned to sender, so it would be impossible for the person to ascertain the whereabouts besides the regular due diligence to obtain that information which is put in the affidavit for publication.

Expert:  Roger replied 11 months ago.
The court order would be valid and enforceable as written, and if someone violates the order, a motion for contempt would be filed, and the judge could then notice hearing and if the person can't be found, the judge can issue a bench warrant for the person's arrest.
Customer: replied 11 months ago.

what im saying is would that apply a person can know what he has been told or what in the record, let if you in a hearing a a judge tells you that there are other matters pending and they have been set for another date, at that point in law are you responsible for knowing and acting accordingly to those matters that were mentioned?

Expert:  Roger replied 11 months ago.
A person should be responsible for anything that is in the court record/transcripts - - and anything a judge tells him/her.
Customer: replied 11 months ago.

in law would that count as service or notice because notice does not have to be written correct?

Expert:  Roger replied 11 months ago.
If a judge orders something in writing or orally, a party should consider himself/herself on notice.
Customer: replied 11 months ago.

not literally make an order but the party's that there is a pending matter and that it has been set at a later date

Expert:  Roger replied 11 months ago.
Usually, an order setting a matter for hearing must be in writing, filed with the court and noticed out to the parties. The notice would have to state a specific time and date.
Customer: replied 11 months ago.

ok so that goes back to my original question if a party mentioned an address at a hearing but they never gave notice to the clerk of a change of address is that considered notice of change of residence

Expert:  Roger replied 11 months ago.
The last address supplied by the party would be requisite address. If I recall correctly, the address was mentioned in court, but another address was used.
Customer: replied 11 months ago.

it was mentioned when the party was asked and they gave an address however, in the case log or summary that shows the cases the party's address has never changed nor is there any entry of a notice to change the address in the clerks records, it also shows that the service was sent out to the original address for that hearing, also please i want you to bear with me here, the complaint was filed two months before hand, if the court changes mid stream on there own, whith out the party saying i wasn't service couldn't that bias and have an retroactive effect on the plaintiff substantive due process rights for remedy if the has been injured? also service was completed by publication. please reply

Expert:  Roger replied 11 months ago.
If the person could not be found at any address, and be publication satisfied the notice, then it may not be an issue since the publication should have satisfied the notice.

A party can claim prejudice if something that occurred impacted him/her unfairly, but a decision as to whether this was a violation of due process is something I can't opine about because it is really up to the judge and how the facts are interpreted.
Customer: replied 11 months ago.

what im saying is you know how a statute is repealed but that statute gave someone a substantive right of remedy if the court goes back retroactively it can prevent them from a right that existed

Expert:  Roger replied 11 months ago.
Yes, if the law is applied retroactively, that's correct. In this case, if the address provided by the other party was the one used to issue notice, then that should be sufficient.

But, whether the court's actions in such a situation rises to the level of being an abuse of discretion or violation of due process is hard to say.
Customer: replied 11 months ago.

what do you mean when you say if the address the address provided by the other party was used to issue notice, at what time are you speaking? at the hearing or in the record, by the way what is that called summary of cases sheet

Expert:  Roger replied 11 months ago.
The last address provided by the party in writing would be the reasonable address to send correspondence to. If the person said at a hearing that he/she had a new address, then correspondence could have been sent there as well, but USUALLY a change of address is sent to the court clerk in writing and there's a request to send all correspondence to that new address. If that didn't happen, then the party likely shouldn't be penalized for sending correspondence to the address in the record.
Customer: replied 11 months ago.

you are my brothaaaaa, thats what i understand, one more question if the courts says party was not serviced properly, would they have to produce an address or they don't have to mentioned it or the correct address, would that be an issue or not

Expert:  Roger replied 11 months ago.
It's an issue if they claim improper service via mail. In that case, there would have to be some proof by the party claiming improper that an address change was noticed to the other party.
Customer: replied 11 months ago.

not the court correct? meaning the trier without any facts

Expert:  Roger replied 11 months ago.
Any time this has ever come up in my practice, a notice of address change is filed with the court and a copy is sent to all parties.

This, the court is usually noticed.
Customer: replied 11 months ago.

is their a rule for that that i can reference

Expert:  Roger replied 11 months ago.
This is usually covered by LOCAL RULES of procedure for the court, and not the Ohio Rules of Procedure. I wouldn't have access to the local rules, but you can hopefully obtain a copy to see what it says about noticing a change of address.

Customer: replied 11 months ago.

thank you allot! i found this

Address and Telephone Numbers
Unless the Court orders otherwise, each parent must keep the
other informed of his or her current address and telephone number,
and an alternate telephone number in the event of an emergency.

would this be subject to statutes I.E. they are over ruled by them

Expert:  Roger replied 11 months ago.
If this is mandated by the rule, then all parties should be required to follow the rules.
Customer: replied 11 months ago.

by the local rules, up in the text it stated :


Parenting Time Presumption
The following presumptions apply to all parenting time orders:


does that mean the entry doesn't have to say it this rule applys

Expert:  Roger replied 11 months ago.
If there's a presumption that this applies, then there's no requirement that the entry reference the rule.
Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 26098
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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