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Briefs Filed in Response to Judge Lucci’s Questions on Class Certification

Judge Lucci requested the parties to brief on the status of class certification. Specifically, if the class was still active and the future plans for re-certification if necessary. The parties were given 10 days to respond.

The State responded that the Class ended with the Supreme Court ruling and that no class currently exists. Further, the State does not plan to seek re-certification for counts 2 and 3 of our lawsuit.

The second count was to seek remedy from the State if the OHWM was not the 573.4 elevation as claimed by the State. The third count was to cause the State to enter into eminent domain proceedings if the OHWM was found to be 573.4 elevation as claimed by the State.

OLG and Intervening Plaintiff Homer Taft responded that the Class does currently exist and will exist until the State complies with the ruling of the Courts. With regard to the second count, OLG suggested that no re-certification is necessary since the class will be identical, consisting of all littoral property owners on Lake Erie. Should the Court decide that re-certification is necessary, OLG would follow the process as originally done in June of 2006. This would only apply to Count 2 as the 3rd count is moot since the Court found that the OHWM is not 573.4 elevation as claimed originally by ODNR. Following are the brief links.

OLG’s Brief Regarding Class Issues

Intervening Plaintiffs Taft Brief on Further Class Certification Questions

State Brief on Class Issues

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Judge Lucci Order for Briefs regarding Class Certification

July 27, 2012 Judge Lucci Orders Additional Briefs

After review of all the briefs submitted to date, Judge Lucci ordered the parties to file briefs on the following issues within seven days of the date of the order:

1) Does a certified class exist and is it maintained at this stage of the proceedings as to Count One of the First Amended Complaint?

2) If it no longer exists or is no longer maintained, when did it cease to exist or be maintained?

3) If it still exists and is maintained, when will it cease to exist or be maintained?

4) Regardless of the answers to the foregoing, will a certified class be sought to be maintained as to Counts Two and/or Three of the First Amended Complaint?

5) If a class is sought as to Counts Two and/or Three of the First Amended Complaint, how will it be certified, potential members notified, maintained, and/or members sub-classified, and the issues common to the class and individual to the members adjudicated?

6) When and how, procedurally, will this occur?

Click to read the Order: Lucci order on Class Certification

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OLG Response to AG Brief Opposing Fees

July 25, 2012 – OLG Response to AG Brief Opposing Fees

In summary the OLG brief stated:

  • OLG’s request for fees is proper at this time because a final judgment has been entered on an appeal.
  • Fees are recoverable in this action regardless of whether it is an action in Mandamus (which it is not).
  • OLG is an “eligible party” entitled to recover fees under the Ohio Revised Code. Also, as an incorporated entity OLG is not required to aggregate the net worth of its employees or members.
  • OLG is the prevailing eligible party and is entitled to an award of fees.
  • The State’s position in initiating the matter was not substantially justified.
  • The State has failed to describe “Special Circumstances” for avoiding the payment of attorney’s fees.

Read the entire brief by clicking: OLG Reply brief to State 2012

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Attorney General Mike DeWine Files Brief Opposing Fees

June 15, 2012 – State Response to OLG Request for fees

The AG enumerated seven (7) items, all of which he advocated to the court, must be proved in order for OLG to collect any fees for its legal services for fighting the State. Note that it is the State, not ODNR that initiated all the appeals after the OLG victory in the Trial Court of Common Pleas and the Lake County Appellate Court. The State also had us spend a year in Federal Court where the case was rejected and sent back to the trial Court. So the State continues to spend taxpayer money, which will be well in excess of any fees OLG might get.

The items to be proven as stated in their brief are:

  • That there is a final judgment concluding this action
  • That this is an action which fees may be recovered
  • That OLG is an eligible party
  • That OLG is the prevailing party
  • That the State initiated this controversy
  • That the position of the State is this matter was not substantially justified
  • That there are no special circumstances in this case that would make the award unjust

Read the full brief, click here. State Response to OLG request for fees, etc. and cover letters. Note that the first dozen or more pages are cover letters including a brief to extend beyond the normal 10 page limit for this action. Move through them to the actual Brief in Opposition.

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