IN THE SUPREME COURT OF OHIO 01^x

Case No. 2009-0683 `

In Re: Guardianship of Bertina Hards

Deceased

Jacqueline Adams, Administrator

Appellant Pro Se

AND

James T. Flaherty

Appellant PRO Se

vs.

Russell J. Meraglio, et al

AppellEEs

On Appeal From the

Court of Appeals

Eleventh Appellate

District

Court of Appeals

Number 2007-L-150

APPELLANT REQUEST FOR FINDINGS/CONC

with

PROPOSED FINDINGS AND CITED AUTHORITIES

s T. Flaherty, Esq.7 Hodgson Rd.

Mentor, Ohio, 44060440-942-2924SC#0009042Appellant Pro Se

AppellEE and Counsel:

Franklin C. Malemud, Esq.SC#0068356

Reminger & Reminger101 Prospect Ave, #1400Cleveland Ohio, 44115-1093

216-687-1311Attorney for Russell Meraglio

^tate^f Bertina Hards

acqueline Adams, Fiduciary9441 Pekin Rd.Novelty, Ohio, 44072

440-338-8365Appellant Pro Se

Nicholas C. DeSantis, Esq.SC#0011402

Ziegler, Metzger & Miller925 Euclid Ave. #2020Cleveland, Ohio, 44115

216-781-5470Attorney for Richard Spotz

Certificate of Service

Appellants certify that a copy of this Appellant REQUEST for

FINDINGS AND CONCLUSIONS, with PROPOSED FINDINGS/CONCLUSIONS was

sent to AppellEE Richard T. Spotz, Esq. by mailing a copy to his

Attorney of Record Nicholas DeSantis, Esq., 925 Euclid Ave.,

#2020, Cleveland, Ohio, 44115, AND,

Russell J. Meraglio, Esq., by mailing a copy to his Attorney

of Record, Franklin C. Malemud, Esq., 101 Prospect Ave.,

Cleveland, Ohio 44115-1093,

by Postage Paid Certified mail, on August , 2009.

AND, Party of Interest State Automobile Mutual Insurance Co. by

mailing a copy to its Attorney of Record Lee M. Brewer, Esq.,

Alber Crafton PSC, 501 West Schrock Rd., #104, Westerville, Ohio,

43081-8056, by mail, on August , 2009.

s T. Flaherty, Esq. V ^ 7aeline Adams,Appellant Pro Se F duciary/Administrator

Appellant Pro Se

ii

sp

ENCLOSED:

List of Requested Findings and Conclusions

with PROPOSED FINDINGS and Authorities

and noted RELEVANCE

1. Probate Court has Staturory GRANTS and LIMITATIONS

NO Jurisdiction by FIAT; NO "Sui Juris".

NO Jurisdiction to CREATE A NEW TORT

2. On Death of the Ward, all Jurisdiction ENDS "Eo Instante",

EXCEPT for Court authorized and LIMITED "WIND UP".

3. Courts cannot Encroach upon or Usurp, the Constitutional and

Statutory exclusive Jurisdiction.

4. Judgments without Jurisdiction: VOID PER SE

5. EX PARTE Proceedings are UNCONSTITUTIONAL

6. STARE DECISIS MANDATORY

7. Fiduciary Appointments have MANDATORY threshhold

requirements "Sine Qua Non".

8. Probate Commissioner Appointments CONTROLLED BY STATUTE.

9. NO Third Party Liability for the DEBT of another

10. Mandatory Attorney Fee Procedures.

11. Contempt Of Court STANDARDS

12. Contempt: Impossibility of Performance DEFENSE

1

1. Probate Courts have STATUTORY Grants and LIMITATIONS

The Probate Court is a STATUTORY Creation by ORC 21 01 , and has

only the authority and Jurisdiction so delegated, and is a

LIMITED Jurisdiction, and is NOT a Court of General Jurisdiction.

No Probate Judge has the Authority or Jurisdiction to assume or

declare jurisdiction where it does not exist by law.

Authorities

Gililand v. Sellers (1965) 2 Ohio St. 223State/Black v. White (1936) 132 Ohio St. 58Wilfrum v. Wilfrum (1965) 2 Ohio St. 2d 237Miller, In Re (1953) 95 0. App. 457State/Brewster v. Brewer (1950) 8th AD #21566

-----------------------------------------------------------------(RELEVANCE: To justify the series of illegal ACCOMODATION ORDERS,

in the face of totally CONTRARY law, by Stare Decisis, the Judge

elected to AVOID the controlling law by the FIAT DECLARATION that

(even so) "HERE, I AM THE LAW" (RECORD); (I am SUI JURIS)).

-----------------------------------------------------------------

2

2. Probate Jurisdiction and Guardian Authority ENDS

Eo Instante on the Death of the Ward

Upon the death of a Ward, by law, the Guardian and Probate Court

Jurisdiction ENDS, EXCEPT ONLY as to "WIND UP", which has been

determined by LAW to include ONLY the authority and jurisdiction

to Preserve the Wards Assets, Settle all outstanding Claims,

Transfer and deliver all remaining assets to the Decedents

Estate, and FILE a Final Account. There is NO authority or

Jurisdiction in the Guardian or Court over After-Death Claims of

any sort, as pursuant to ORC 2117, they are the exclusive

jurisdiction of the Decedents Estate Court.

uthorities

Sommers v. Boyd (1891) 48 Ohio St. 648Simpson v. Holms (1922) 106 Ohio St. 437McBride v. Vance (1906) 73 Ohio St. 258Sachs, In Re (1962) 173 Ohio St. 270State ex rel Beedle v. Kiracofe (1969) 176 Ohio St. 149Tarfel v. Lewis (1906) 75 Ohio St. 182

Curry, In Re (1986) 29 0. App. 3d 361Kelley v. Smith (1964) 7 O. App. 2d 142Thacker, In Re (2007) Eleventh AD #2006-P-0076Mogul, In Re (2002) Eleventh AD #2001-T-0038Swift v Gray (2008) Eleventh AD #2007-L-0096

-----------------------------------------------------------------

(Relevance: All FEE Claims by the TEAM were stated as being

services rendered after the death of the Ward in 2000, and from

2000 to 2007, a Factual and Legal impossibility.)

-----------------------------------------------------------------

3. NO Jurisdiction for Usurpation/Encroachment 3

on Other Court Exclusive Jurisdiction

No Judge of any Court has the Authority of Jurisdiction to

Encroach on, or Usurp matters which are the sole and exclusive

jurisdiction of another Ohio Court.

Authorities

Carmody v. Justice (1926) 114 Ohio St. 94Marsh v. Goldthorpe 123 Ohio St. 103Scott v. Muni. Ct. Cleveland (1951) 156 Ohio St. 179

State/Garrison v. Brouah ( ) 94 Ohio St. 115State/Greater Cleveland v. Guzzo (1983) 6 Ohio St. 3d 270

State/Mason v. Ct. Com. P1. (1940) 137 Ohio St. 273

State/Masters v. Ohio St. Comm (1955) 104 Ohio St. 312

State/Michael v. Vamos (1945) 144 Ohio St. 628

State/Nolan v. Clendennina (1915) 93 Ohio St. 264

State/Ray v. Burns (1963) 174 Ohio St. 543State/Scoratow v. Ct. Com. P1. (1959) 170 Ohio St. 76

State/Wannamaker v. Miller (1955) 164 Ohio St. 174

State/Winnefield v. Ct. Com. P1. (1953) 159 Ohio St. 225

Weenik v. Ct. Com. P1. (1948) 150 Ohio St. 349

State/Rockwell v. Ford (1979) ELEVENTH AD #2645

State/Smith v. Avellone (1986) ELEVENTH AD #11-232

-----------------------------------------------------------------(Relevance: The LAKE County Probate Judge Usurped and Encroached

on the exclusive Jurisdiction of the Decedents Estate in GEAUGA

County Probate Court, as to After-Death Claims, as mandated by

ORC 2117.)

-----------------------------------------------------------------

4

4. Judgments without Jurisdiction are VOID PER SE 4

When a Court does not have the Jurisdiction to Hear or Rule on a

matter, but renders a Judgment on that matter, that Judgment is

VOID PER SE, Void Ab Initio.

Authorities

Shealy v. Campbell (1985) 20 Ohio St. 3d 23State/Botkins v. Law (69 Ohio St. 3d 383State/Dallman v. Common Pleas (1973) 35 Ohio St. 2d 176State v. Kilbane (1980) 61 Ohio St. 2d 210

Dennis v. Ford Motor (1997) 121 O. App. 318

Long v. Long (2007) ELEVENTH AD #2007-T-0047

Nycoll v. Jurick (1991) ELEVENTH AD #90-L-14-056

State/Rien v. Rice (1999) ELEVENTH AD #99-T-0025

Morelli v. Walker (2007) 8th AD #88706

Schuman v. Edward (2003) 4th AD #02CA 571

-----------------------------------------------------------------(Relevance: Simpson, Sommers et al clearly demonstrated NO

JURISDICTION as to ANY PROCEEDINGS not related to "wind-up"

including After-Death Claims, which includes THE FEE

CLAIMS and ACCOMODATION AWARDS in Issue.)

5

5. Ex Parte Proceedings: Constitutional Due Process 5

NO Judge or Court has the Authority or Jurisdiction to DENY a

Person or Party the Constitutional RIGHT to the fundamental

requirements of DUE PROCESS of Law, which INCLUDES the Right to

be named as a Party, to Service of the Complaint or Motion, to

Notice of the Hearing, and the Opportunity to be present to

defend one's self in Court; Ex Parte Judgments are VOID PER SE.

Authorities

United States Constitution Amend #XIV

Ohio Constitution Art 1, #15

Ohio Civil Rule 5Adamson v. California (1947) 332 U. S. 46, 61Cleveland Bd. bv. Loudermill (1985) 470 U. S. 532Grannis v. Ordean (1914) 234 U. S. 385Hurtado v. California (1884) 110 U. S. 516Mullane v. Cent.Hanover Bk. (1950) 339 U.S. 306Murchinson, In Re (1955) 349 U.S. 133

Austin v. Smith (1962) 312 F. 2d 337Hicklin v. Edwards (1955) 226 F. 2d 410

Akron-Canton v. Swinehart (1980) 62 Ohio St. 2d 403Allstate v. Bowen (1936) 130 Ohio St. 347Atkinson v. Grumman Corp. (1988) 37 Ohio St. 3d 80Cincinnati v. Hamilton Cty. (2000) 87 Ohio St.3d 363Foreclosure, In Re (1980) 62 Ohio St. 2d 33Galt Alloys v. Keybank (1999) 85 Ohio St. 353Holmes v. Union Gospel (1980) 64 Ohio St. 2d 187Mitchell v. Mitchell (1980) 64 Ohio St. 2d 49Moldovan v. Cuvahoua Ctv. (1986) 25 Ohio St. 3d 293Ohio Assn. v. Lakewood (1994) 68 Ohio St. 3d 175Oh. Vallev Rad. v. Oh. Valley Hsp. (1996) 28 Ohio St. 3d 118Palazzi v. Gardner (1987) 32 Ohio St. 3d 169Peebles v. Clement (1980) 63 Ohio St. 2d 314

6

Sachs, In Re (1962) 173 Ohio St. 270Samson Sales v. Honeywell (1981) 66 Ohio St. 2d 290State v. Hochhauser (1996) 76 Ohio St. 3d 456

State/Beedle v. Kiracofe (1969) 176 Ohio St. 149Townsend v. Dollison (1981) 86 Ohio St. 2d 225Westmoreland v. Valley Homes (1975) 42 Ohio St. 2d 291

Brest v. Brest (1980) ELEVENTH AD #2824

Holleran, In Re (1978) ELEVENTH AD #6-283

Mott v. Mott (1990) ELEVENTH AD #89-P-2049

Painesville v. Petro (2001) ELEVENTH AD #99-L-181

Rendina v. Rendina (1992) ELEVENTH AD #91-L-019

State/Castrilla v. Hansley (2003) ELEVENTH AD #2003-A-0008

Yoel v. Yoel (2004) ELEVENTH AD #2003-L-123

-----------------------------------------------------------------(Relevance: In addition to the total lack of Constitutional

Jurisdiction to engage in those ACCOMODATION Orders, the

Proceedings and Judgment against AppellANT Flaherty, was totally

without any semblance of PROCEDURAL or SUBSTANTIVE Constitutional

Due Process, and the Proceedings against AppellANT Adams was

totally without any semblance of SUBSTANTIVE Due Process.)

-----------------------------------------------------------------

6. STARE DECISIS is Constitutionally MANDATORY 6

The LAW of Stare Decisis is mandatory on all Courts, UNLESS the

Supreme Court has Ruled that certain specific circumstances have

changed, such that Law and Equity will waive the Mandate. NO

Trial Judge has the Constitutional authority to avoid or deny the

impact of Stare Decisis EXCEPT by specific FINDINGS that Stare

Decisis should not apply in a certain case FOR CAUSE SHOWN.

Authorities

Farragher v. Boca Raton (1998) 524 U. S. 775Hohn v. United States (1998) 524 U. S. 236James Beam v. Georgia (1991) 501 U. S. 529Lewers & Cooke v. Atcherly (1911) 222 U.S. 285Neal v. United States (1996) 516 U.S. 284United States v. IBM (1996) 517 U. S. 843United States v. Maine (1975) 420 U.S. 515Vali v. Arizona (1907) 207 U.S. 210

Hack v. Citv of Salem (1963) 174 Ohio St. 383Hall v. Rosen (1977) 50 Ohio St. 2d 135, 138.Scott v. News Herald (1986) 25 Ohio St. 3d 243State/Allison v. Jones (1960) 170 Ohio St. 323

Eastlake v. Rakauskas (1990) ELEVENTH AD #88-L-13-208Mogul, In Re (2002) ELEVENTH AD #2001-T-0038Thacker, In Re (2007) ELEVENTH AD #2006-P-0076

-----------------------------------------------------------------(Relevance: When the Probate Court was faced with OVERWHELMING

and CONCLUSIVE Stare Decisis LAW that he did not have

Jurisdiction to make the ACCOMODATION ORDER Fees, he elected to

GRANT HIMSELF that Jurisdiction by the FIAT Declaration that

"HERE, I AM THE LAW"; In short, a Claim of Sui Juris.)

8

7. ORC 2109/Fiduciary Appointments: MANDATORY Compliance 7

NO ONE can be appointed a Fiduciary (Trustee, Executor, Guardian)

without having FIRST complied with the Statutory Mandate of ORC

2109, which mandates the threshholds of an Application, Suretv

Bond, and Letter of Acceptance, and when all that has been

completed, THEN, the Court's Letter of Appointment.

NO Judge has the authority or jurisdiction to waive or ignore any

of those threshhiold Mandates; EXCEPT that on special

circumstances the BOND may be reduced or waived.

Authorities

ORC 2109Judd v. City Trust (1937) 133 Ohio St. 81Santruck, In Re (2008) 120 Ohio St. 3d 67Wrinkle v. Trabert (1963) 174 Ohio St. 233Winters National Bank v. Ross (1959) 169 Ohio St. 335

North Akron v. Rondy (1990) 68 0. App. 3d 518Sanders, In Re (1997) 118 O. App. 3d 606

Graham v. Ravenna Sav. (1993) ELEVENTH AD #93-P-0021

Joles, In Re (2000) ELEVENTH #99-L-087 (Lake)

-----------------------------------------------------------------(Relevance: The RECORD shows NO COMPLIANCE with the Statutory

MANDATES for a Fiduciary Appointment, and that the Probate Judge

relied on his FIAT Declaration that (even so) "HERE, I AM THE

LAW"; A Declaration of Sui Juris.)

9

8. Probate Commissioner Appointments 8

ORC 2101.05/.07 mandates that a Person may be Appointed a

Commissioner by a Specific Probate Court Judgment, and which

Judgment specifies and details the duties to be performed.

Absent that Appointment Judgment, and the Specifics, NO ONE can

be considered as, or act as, a Commissioner under ORC 2101; and,

when the Specifics have been performed, and a Commissioner Report

Filed with the Court, and accepted and adopted, the Commissioner

Appointment Terminates by Law.

Authorities:

ORC 2101.05, 2101.07There is NO Case law concerning that issue.

(Relevance: AppellEE Spotz CLAIMED he was a Commissioner from

2002 through 2007, BUT WITHOUT ANY STATUTORY APPOINTMENT, and was

Awarded FEES for "services" which were Factually and Legally

IMPOSSIBLE, and never occured, a Fraud on the Court and Estate.)

10

9. Third Party Liability for the Debt of another 9

Where there has been NO agreement of any sort, NO Third Party

can be held liable or JOINTLY or SEPARATELY liable for the Debt

of another person without that persons consent, or unless that

person has agreed to be so liable; Such consent or agreement must

be supported by substantial evidence.

Authorities

Arpadi v. First MSP (1993) 68 Ohio St. 3d 453Border City v. Moan (1984) 15 Ohio St. 3d 65Canon v. Miller (1934) 128 Ohio St. 72Elam v. Hyatt Leaal Services (1989) 44 Ohio St. 3d 175

Simon v. Zipperstein (1987) 32 Ohio St. 3d 74

All Occasion Limo. v. HMP (2004) ELEVENTH AD #2003-L-140

Clark, In Re (1997) ELEVENTH AD #97-G-2060

Duncan v. Bender (1991) ELEVENTH AD #90-G-1610Hards, In Re (2003) ELEVENTH AD #2002-L-054Farlev v. Farlev (1994) 97 O. App. 3d 351Kufchak, In Re (1998) 126 0. App. 3d 428Oatey v. Oatey (1992) 83 0. App. 3d 251Weisenberg v. Home Insurance (1991) 76 0. App. 3d 391

-----------------------------------------------------------------(Relevance: When the TEAM found that the Guardian Estate did not

have the funds for their $64,000 Fee Claim/Award against the

Guardian Estate, THEN, with the consent of the Court (RECORD),

the TEAM engaged in that "creative financing" to charge the

ATTORNEY for the Estate for their Fees, by "creating" the NEW

TORT of "advising a Client of the controlling Law", which caused

the TEAM "hardship" in obtaining their Fees ANYWAY.)

-----------------------------------------------------------------

11

10. Attorney Fee Procedures 10

The LAW is clear that a Fee Claim must comply with the mandates

of Swanson et al, which adopted DR 2-06, which AT LEAST demands

the evidence of an Attorney-Client relationship, AND Services

ACTUALLY performed, AND for the benefit of the "Defendant". Where

ANY of those STANDARDS have not been demonstrated as a true fact,

then NO Judge has the Authority or Jurisdiction to award fees to

a Claimant, ESPECIALLY against a Probate Estate where the

evidence must be very factual and clear.

Authorities

Swanson v. Swanson (1976) 38 O. App. 2d 85 (ET AL)

Simpson v. Holmes (1922) 106 Ohio St. 437Sommers v. Bovd (1891) 48 Ohio St. 648Verbeck, In Re (1962) 173 Ohio St. 557Estate of Bertina HARDS (2003) Eleventh AD #2002-L-032Murray, In Re (2005) Eleventh AD #2004-T-0030Lazar, In Re (2004) Eleventh AD #2003-G-2509Melton, In Re (2003) Eleventh AD #2003-L-063Froelick, In Re (2004) Eleventh AD #2000-T-0016Hards, In Re (2003) Eleventh AD #2002-L-054Myers v. Myers ( 1980) Eleventh AD ##967Clark, In Re ( 1997) Eleventh AD #97-G-2060

-----------------------------------------------------------------( Relevance: The PRIMARY/Threshhold of the mandates of Swanson et

all is that there have been an Attorney/Client Contract or

Relationship, AND, that services were actually performed, AND,

for the "benefit of the Estate/Ward, etc. NONE of these happened

before or after the death of the Ward. The Proceedings were a

knowing violation of Constitutional SUBSTANTIVE Due Process.)

-----------------------------------------------------------------

12

11. Contempt Of Court Standards 11

Civil/Criminal Contempt does not lie where all Judgments/Orders

in Issue, that were factually and legally possible, had been

performed years prior to the initiation of the Civil Contempt

Proceedings.

Authorities

Arpadi v. First MSP (1933) 68 Ohio St. 3d 453Border Clty v. Moan (1984) 15 Ohio St. 3d 65Elam v. Hyatt (1989) 44 Ohio St. 3d 175Scholler v. Scholler (1984) 10 Ohio St. 3d 98

Simon v. Zipperstein (1987) 32 Ohio St. 3d 74

Winters National Bank v. Ross (1959) 169 Ohio St. 335

Wrinkle v. Trabert (1963) 174 Ohio St. 233

North Akron v. Randy (1960) 68 0. App. 3d 518

Sanders, In Re (1997) 118 0. App. 3d 606

Duncan v. Bender (1991) ELEVENTH AD #90-G-1610

Graham v Ravenna (1993) ELEVENTH AD #93-P-0021

Joles, In Re (2000) ELEVENTH AD #99-L-087

(Relevance: The stated FACTUAL basis for the Civil and Criminal

Contempts on BOTH AppellANTS, were demonstrated to have ALL been

performed YEARS BEFORE the Contempt Motions were filed bv, the

TEAM, EXCEPT the two that were Factually/Legally impossible of

perfomance. Whatever the Rationale for those Proceedings, it had

NO RELATIONSHIP to ANY "failures to comply with Court Orders".)

13

12. Contempt: Imgossibilitv of Perfomance Defense 12

When an Ordered act is factually or legally Impossible of

Performance, then that FACTUAL/LEGAL impossibility is an absolute

defense to a Charge of Civil and/or Criminal Contempt of Court.

Authorities

BLY v. Smith (1916) 94 Ohio St. 110Brown v. Executive 200 (1980) 64 Ohio St. 2d 250Pugh v. Pugh (1984) 15 Ohio St. 3d 136State v. Kilbane (1980) 61 Ohio St. 2d 210

Aver. In Re (1997) 119 O. App. 3d 57Burchett v. Miller (1997) 123 O. App. 3d 550Courtney v. Courtney (1984) 16 O. App. 3d 329Marden v. Marden (1996) O. App. 3d 568Olmstead Twp. v. Riolo (1998) 49 O. App. 3d 114Purola, In Re (1991) 73 0. App. 3d 306Szymczak v Szymczak (2000) 136 0. App. 3d 706

Lyons v. Bowers (2007) ELEVENTH AD #2006-L-119Stevens, In Re (1999) ELEVENTH AD #98-T-0002

Stroud v. Stroud (1997) ELEVENTH AD #97-L-005Tippi v. Patnik (2006) ELEVENTH AD #2005-G-2665

(Relevance: EXAMPLE #1: Both Appellants, Fiduciary and Attorney,

were held in CIVIL and CRIMINAL Contempt of Court for "failing"

to obey the ORDER to take $64,000 FROM the LAKE County Guardian

Estate, and deliver it TO a Legal Stranger, which Estate had

KNOWN/RECORD assets of $0, because all assets had been

transferred YEARS BEFORE, as MANDATED BY LAW, to the Decedents

Estate in GEAUGA County Probate Court. (RECORD)

The Order was FACTUALLY/LEGALLY IMPOSSIBLE OF PERFORMANCE!!!

14

EXAMPLE #2: Both Appellants, Fiduciary and Attorney, were held in

CIVIL and CRIMINAL Contempt of Court for "failure" to comply with

the LAKE County Probate Court ORDER to CONFISCATE the assets of

the GEAUGA County Probate Estate, and DELIVER it to a specified

TEAM MEMBER, a legal Stranger to BOTH Estates, for him to with

as he independantly determines. (RECORD)

The Order was FACTUALLY/LEGALLY IMPOSSIBLE OF PERFORMANCE!!!)

AppellANT Pro Se

Jacqueline Adams^

Fiduciary/ES'Mj`-

Appe11ANT Pro Se

15

EXHIBIT

(A) Judgment-in-Issue, dated July 29, 2009

U^UL^L^UJUL 2 9 2009

^vurt ^f `" 4t^ CLERK OF COURTSUPREME COURT OF OH

In Re: The Guardianship of Bertina 14ards Case No. 2009-0683

ENTRY

Upon consideration of the jurisdictional memoranda filed in this case, the Courtdeclines jurisdiction to hear the case and dismisses the appeal as not involving anysubstantial constitutional question.

Upon consideration of appellants' motion for leave to file motion to strikememorandum in response, motion to strike memorandum in response filed 5/11/09, andmotion of Jacqueline Adams to vacate a void judgment,

It is ordered by the Court that the motions are denied as moot.

(Lake County Court of Appeals; No. 2007 50)

/T ASJ. OYERClvef Justice