IN THE SUPREME COURT OF OHIO

CHUN CHA WILKERSON

Plaintiff- Appellant

vs.

MICHAEL F. HARTINGS, PH.D.,

Defendant-Appellee.

Supreme Court No. 2009-2036

On Appeal from the HamiltonCounty Court of Appeals, FirstAppellate District

Court of Appeals Case No.C-oSii6o

MEMORANDUM IN RESPONSETO APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLEE, MICHAEL F. HARTINGS, PH.D.

David C. Calderhead (#0039013)(Counsel of Record)Joel L. Peschke (#0072526)Triona, Calderhead & Lockemeyer, Ltd.2021 Auburn Ave.

Cincinnati, Ohio 45219Tel: (513) 576-io6oFax: 513-576-8792dcalderhe ad Ptcl-law. netineschke cni tcl-law.netCounsel for Defendant-Appellee,Michael F. Hartings, Ph.D.

Thomas G. Eagle (#0034492)(Counsel of Record)Thomas G. Eagle Co., L.P.A.3836 N. State Rt. 123Lebanon, Ohio 45036Tel: (937) 743-2545Fax: (937) 704-9826eaglelawof-ficc(u^cs.comCounsel for Plaintiff-Appellant,Chun Cha Wilkerson

TABLE OF CONTENTS

PageSTATEMENT OF WHY THIS CASE IS NOT OF PUBLIC OR GREATGENERAL INTEREST AND DOES NOT INVOLVE ASUBSTANTIAL CONSTITUTIONAL QUESTION ................................... 1

STATEMENT OF THE CASE AND FACTS .............................................. 4

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ........................ 7

Proposition of Law I :............................................................................ 7

The "discovery rule" does not apply to negligence claims broughtunder R.C. 2305•o9(D) and, therefore, the four-year statute oflimitations begins to run at the time of the allegedly negligentact(s).

Proposition of Law II :........................................................................... 10

When a party possesses knowledge sufficient to alert areasonable person to investigate further, the statute oflimitations for any alleged fraud begins running.

CONCLUSION ........................................................................................... 14

CERTIFICATE OF SERVICE ..................................................................... 15

I. STATEMENT OF WHY THIS CASE IS NOT OF PUBLIC OR GREATGENERAI., INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL

CONSTITUTIONAL OUESTION

This appeal follows the trial court's proper granting of summary judgment to the

Defendant-Appellee, Michael Hartings, Ph.D. ("Dr. Ilartings"), a decision which was

then reviewed, de novo, and affirmed by the First District Court of Appeals. As no

conflict exists between the Districts, no substantial constitutional question is presented,

and this case is not of public or great general interest, this Honorable Court should

decline to extend jurisdiction.

The Plaintiff-Appellant ("Wilkerson") devotes the vast majority of her

Memorandum in Support of Jurisdiction arguing for a discovery rule to be applied to

each of her four causes of action. However, per the clear authority of this Court, the

discovery rule does not apply to the first three of Wilkerson's claims. Furthermore, even

when the discoveiy rule is applied to Wilkerson's remaining claim, it remains time-

barred.

Perhaps recognizing this fact, Wilkerson asks this Court to create a new discovery

rule - one based on a subjective standard. Not only is such a standard contrary to the

legal authority of this State, but it would create statutes of limitation without any limit,

allowing parties to investigate potential claims whenever they finally saw fit to do so.

More telling is that even if such a mythical discovery rule were created and applied to

this case, Wilkerson's claims would remain time-barred given her subjective knowledge

and complaints relative to this case in 2003.

Each of Wilkerson's claims are brought under R.C. 2305.09. In Investors REI'I'

One v. Jacobs,' this Court conclusively held that the discovery rule does not apply to

negligence claims brought under this statute, directing that:

"The discovery rules adopted by this court and by the GeneralAssembly...are not available to negligence claims brought underR.C. 2305.09(D)."2

Wilkerson argues that it was error for the First District to follow this Court's clear

authority. In fact, Wilkerson even attacks the rationale behind the holding, claiming

that it was unconstitutional for the First District to find that "there was no applicable

discovery rule to these causes of action, because they were not included in a Statute..."3

Again, this Court has already addressed this very issue, in no uncertain terms,

explaining that:

"The legislature's express inclusion of a discovery rule for certain tortsunder R.C.23o5.09, including fiaud and conversion, implies theexclusion of other torts arising under the statute, includingnegligence."4

Accepting this appeal to siniply re-state this clear legal authority, which the First

District appropriately followed and applied, would be a waste of this Court's valuable

time and resources.

Moreover, Wilkerson's Memorandum completely ignores the fact that, in further

compliance with Investors REIT One, the First District did apply the discovery rule to

her remaining cause of action. In doing so, the First District even gave her "the benefit

lInuestors RF,CI' One v. Jcicobs (1989),46 Ohio St. 3d 176, 5q6 N.E.2d 2o6.2Ib2vestorsREIT One at 181, 211. (Emphasis added).3 Memorandum in Support of,Jurisdiction of Appellant Chun Cha Wilkerson at p. 3.4 Investors REIT One at 181,211. (Eniphasis added).

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of the doubt"5 by applying a later date for the commencement of the discovery rule.

Even this could not convert her cause of action into a timely claim.

Wilkerson then argues for the creation of a new discovery rule, one that ignores

the well-established principle that "this standard does not require the victim of the

alleged fraud to possess concrete and detailed knowledge..... .. Instead, "the standard is

normative and requires only facts sufficient to alert a reasonable person of the

possibility..."'

Finally, Wilkerson attempts to deflect attention from lier clear failure to meet the

applicable statutes of limitation, clamoring about allegedly being denied access to the

courts. Under the facts of this case, however, sucll claims ring hollow and are nothing

more than hyperbole. Not only did Wilkerson fully and fairly receive her "day in cout-t"

at the trial court level, but she also received full, de novo review at the appellate court

level, meaning that the First District "afforded(ed) no deference to the trial court's

decision and independently review(ed) the record to determine whether summary

judgment is appropriate."x In doing so, the revierving court even gave her "the benefit of

the doubt" 9 in determining when the discovery rule began. This is a far cry from

denying "an Ohio citizen a day in court,"lo as Wilkerson argues, and provides no

legitimate basis for this Court to extend jurisdiction.

There is no constitutional right to have untimely claims heard by a jury, and

Wilkerson's Memorandum asks "this Court to override the summary judgment standard

and make every factual question that may arise in a particular case one solely for a jury

5 WilTcersott v. Ilarrings, 2009 Ohio 4987 at P17.6 Palm Beach Co. v. Dnn & Bradstreet (1995),1o6 Ohio App.3d 167, 1'7y, 665 N.E.2d 718, 720.7 Id.8 Marks v. Keybank NA., 2005 Ohio'769 at P15. (Emphasis added).9 Wilkerson v. Hartings, 2009 Ohio 4987 at P17.in Memorandum in Support of,Jurisdiction of Appellant Chun Cha Wilkerson at p. 1.

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to determine.i11 However, "[t]hese are issues which do not involve the weighing of

conflicting evidence, but, rather, a comparative textual and legal analysis" of the facts

specific to this case."

This Court directs that "[o]ne of the principle purposes of the summary judgment

rule is to isolate and dispose of factually unsupported claims...and...it should be

interpreted in a way that allows it to accomplish this purpose."13 Furthermore,

summary judgment "is a procedural device to terminate litigation and to avoid a formal

trial when there is nothing to try."14 With each of Wilkerson's claims in this case

absolutely time-barred, the granting of stnnmary judgment to Dr. Hartings furthers each

of these stated goals.

Simply put, this case presents no substantial constitutional question or any

unanswered question of public and great general interest. Therefore, this Honorable

Court should decline to extend jurisdiction.

11. STATEMENT OF THE CASE AND FACTS

Wilkerson has been leveling accusations of misconduct against Dr. Flartings since

2003. These allegations appeared in her 2003 appeal of a Butler County custody

decision,'$ again in a 2005 formal complaint she made to the Ohio State Board of

Psychology, and culminate with the filing of this lawsuit in May, 2oo8," the latter being

the subject of the instant appeal.

-Wooten v. Republic Saa. Bank, 172 Ohio App.3d 722, 732, 2007Ohio 3804 at P45, 876 N.E.2d i26o,

1268,12Palm Beach Co. v. Dun & Brndsh•eet at 172, 721.1:3 Dresher v. Burt (1996), 75 Ohio St.3d 28o, 289, 662 N.E.2d 264, 270.14 Murphy v. Keynoldsburg (1992), 65 Ohio St. 3d 356,3581992 Ohio 95 at 7, 604 N.E.2d 138,140.1F, Wilkerson v. Wilkerson, 2005 Ohio 1236.1h T.d. 1.

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A. The Butler County Custody Case

The allegations in this case arise out of Dr. Hartings' involvement in the Butler

County custody dispute between Wilkerson and her ex-husband. Specifically, Dr.

Hartings was retained by Wilkerson's ex-husband to offer his professional opinions in

that matter. In that role, Dr. Hartings was asked to review and evaluate the content of

the report of Dr. Charles Lee, a clinician who had previously evaluated the parties by

court order. Pursuant to court order,17 Dr. Hartings also met with and evaluated the

parties, including each parent, thereafter authoring written reports to the Butler County

Domestic Relations Court on April 24, 2002, April 28, 2002, and December 20, 2002,

respectively. Dr. Hartings was called as a live testimonial witness at the custody

hearing, as well.

B. The Magistrate's Written Custody Decision

The magistrate's written custody decision was filed in June, 2003, and named

Wilkerson's ex-husband as the residential parent and legal custodian of the minor

daughter; Wilkerson was granted. weekday visitations.18 Within this 6-page written

decision, the magistrate referenced the report of Dr. Lee, another psychologist, the

reports of Dr. Hartings, the recommendations of the guardian ad litem, the relationship

between the child and parents, and the parents' respective abilities to assist with

schoolwork.' `'

17'1'.d. S at "Exhibit A"; Wilkerson v. Wilkersori, 2005 Ohio 1236 at P4.1$ Id. at "Exhibit B"; Wilkerson v. Wilkerson, 2005 Ohio 1236 at P4.

w Wilkersorr v. Wilkerson, 2005 Ohio 1236 at P21.

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Both parties filed objections to the magistrate's decision, though each was

overruled and the trial court adopted the findings and recommendations of the

magistrate 20

C. Wilkerson's Twelfth District Appeal

Wilkerson then appealed the custody decision to the 12th District Court of

Appeals, asserting that the trial court erred in finding that it was in the child's best

interest for her ex-husband to be named the residential parent.21 She argued that "in

making this determination, the trial court placed exclusive, undue emphasis on" Dr.

Hartings' report;22 a report which she contended was "an incomplete, inaccurate and

biased psycliologist's report."z3

D. Wilkerson's Complaint to the Ohio State Board of Psychology.

In March, 2005, while her 12t11 District appeal reinained pending, Wilkerson then

filed a formal complaint against Dr. Hartings with the Ohio State Board of Psychology

relative to his involvemcnt in her custody matter. Later that same month, the 12th

District issued its written decision overruling Wilkerson's sole assignment of error.Z`'

E. Wilkerson's Lawsuit.

In May, 2oo8, Wilkerson filed the lawsuit that gives rise to the instant appeal,

asserting six different causes of action.25 Dr. Hartings moved for summary judgment

asserting, among other arguments, that each of Wilkerson's causes of action were time-

barred.26 Wilkerson conceded that two of her six causes of action were untimely and

20Wilkerson at P4.21 Id. at Pr7.22Id.

23 Id.24 Wilkerson v. Wilkerson, 2005 Ohio 1236.25 T.d. 2.2fi T.d. 8.

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should be dismissed.Z' The remaining causes, each of which are governed by R.C.

2305.09, were the subject of oral arguments before the trial court in September, 2008,

after which Dr. Hartings' Motion was granted.28

F. Wilkerson's First District Appeal.

Wilkerson then appealed to the First District Court of Appeals29 which, after

reviewing the case de novo, held that "Wilkerson filed her claims against Hartings

beyond the applicable limitations period"30 and "that the statute of liinitations barred

each of Wilkerson's asserted claims."31

Thereafter, Wilkerson filed her Memorandum with this Court.

III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law Number I: 'i'he "discovery rule" does not apply tonegligence claims brought under R.C. 2305.o9(D) and, therefore, the four-year statute of limitations begins to run at the time of the allegedlynegligent act(s).

Wilkerson concedes that R.C. 2305.09 is the statute applicable to her four causes

of action.'2 Three of those four claims, specifically tortious interference with family

relationship, infliction of emotional distress, and false light, are governed by R.C.

2305.o9(D). Each of these three claims sound in negligence.33

This Court, in no uncertain terms, directs that:

"The discovery rules adopted by this court and by the GeneralAssembly...are not available to negligence claims brought underR.C. 2305.o9(D)."34

27 T.d. 12 at p. 6.zs'T.d. ig.29'T.d. 16.:1o Wilkerson v. Hartings at Pi.31 Id. at P18.3=Amended Brief of Plaintiff-Appellant Chun Cha Wilkerson at p. 5, 6.33 See Herbert v. Banc One Brokerage Corp. (1994), 93 Ohio App. 3d 271, 274, 638 N.E.2d 161, z63.+h Investors REII'One v..Jacobs (1939), 46 Ohio St. 3d 176,181, 546 N.E.2d 2o6, 211. (Eniphasis added).

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Therefore, with respect to these three causes of action, Wilkerson's lengthy

argument about "the discove'y rule" is inapplicable, in error, and contrary to established

Ohio legal authority.

Instead, for negligence claims brought under R.C. 2305.o9(D) it is:

"...the date that the allegedly negligent act was committed thattriggers the running of the statute of limitations..."35

The uncontested dates of the alleged negligence - April 24, 2002, Apri128, 2002,

and December 20, 2002, respectfully, unequivocally establish that these claims are

absolutely time-barred. To be timely, each of these three claims must have been

brought no later than those respective dates in 2oo6. By waiting until May 21, 2008 to

assert these claims for the first time, each of these causes of action were clearly filed out-

of-time.

The issue of whether the discovery rule applies to Wilkerson's claims of

professional negligence was answered by this Court in Investors REIT Otte.36 In that

case, this Court noted that while R.C. 2305.09 expressly contained its own limited

discovery rule, general negligence claims were not included in the same.37 Since "[t]he

General Assembly has not adopted a discoveiy rule applicable to general negligence

claims arising under R.C. 2305.o9,"" the four-year statute of liinitations applicable in

that case "commenced to run when the allegedly negligent act was committed..."19 The

3e Hater u. Oradison Div. Of McDonald & Co. Sec. (1995), lo1 Ohio App.3d 99, 1o8, 655 N.E.2d 189, 195.(Einphasis added).,36Investors REIT One v. Jacobs (i989), 46 Ohio St. 3d 176, 546 N.E.2d 2o6.

37 Investors REIT One at i8i.3s Id. at 182.391(1.

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negligence claims in that case were brought outside that four year window, and

therefore were time-barred."0

The Second District followed this authority in Wooten v. Republic Sau. Bank,41

where it recognized that the discovery rule does not apply to negligence claims under

R.C. 2305•o9(D) 42 Since that complaint was filed approximately five years after the

alleged misconduct occurred, it was outside the four- year statute of limitation and time-

barred.43

The First District has followed this same authority on numerous occasions. In

Herbert,44 the court recognized that "the discovery rule does not apply to...allegations of

negligence...which fall outside the express discovery rule in R.C. 2305.og(D).s45 In

Hater,46 it held that this Court's rejection of the discovery rule could "reasonably be

extended" to other claims of professional negligence controlled by R.C. 2305•09 47

Furthermore, in these types of claims the four-year statute of limitation begins running

"when the act or omission coustituting the alleged professional malpractice occurred."41

And in Dancar Props,`'9 the First District reiterated that the "rejection of the discovery

rule...applied generally to claims for professional negligence controlled by R.C.

23o5.og."i" Furthermore, "the four-year statute of limitations for professional

negligence begins to run at the time of (the) allegedly negligent act."st

4° Id.41 Wooten v. Republic Sau. Bank, 172 Ohio App.3d 722, 2007 Ohio 3804, 876 N.E.2d 126o.42 Wooten at P31, P40.43 Id.114 Herbert v. Bone One Brokerage Corp. (1994), 93 Ohio App. 3d 271, 274, 638 N.E.2d 161, 163.45 Herbert at 275.46 Hater v. Gradison Div. OfMcDonald & Co. Sec. (1995), 101 Ohio App.gd 99, 655 N.E.2d 189.47 Hater at io9481d. at llo.

49 Dancar Props. r. O'Leary-Kientz, Inc., 2004 Ohio 6998.5° Dcrncer Props. at P25.51 Id.

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With no discovery rule, each of the three R.C. 2303.o9(D) claims that Wilkerson

brought in May, 2008 were clearly far outside of the applicable statute of limitation. No

genuiiie issue of material fact exists in this regard, and Dr. Hartings was, and remains,

entitled to summary judgment as a matter of law as to each of these claims.

Furthermore, and as will be demonstrated immediately below, even if the

discovery rule were applicable to any/all of Wilkerson's R.C. 2305.og(D) claims, each

was still filed well outside of the applicable statute of limitation and is forever time-

barred.

Proposition of Law Number IIe When a party possesses knowledgesufficient to alert a reasonable person to investigate further, the statute oflimitations for any alleged fraud begins running.

Wilkerson's only remaining claim is couched as a fraud claim. In analyzing this

claim, the First District appropriately applied the discovery rule.52

"IA] cause of action for fraud accrues when the fraud is, or should have been,

discovered.iS3 A party "should be aware of the fraud...when he or she possesses `facts

sufficient to alert a reasonable person to the possibility of wrongdoing.s54 Such

information "gives rise to a party's duty to inquire into the matter with due diligence."ss

Importantly, "this standard does not require the victim of the alleged fraud to

possess concrete and detailed knowledge...s56 Instead, "the standard is normative and

requires only facts sufficient to alert a reasonable person of the possibility..."57 In other

words:

52 Wilkerson u. Hartings at P14.5:+Palrn Beach Co. v. Dun & Bradstreet (1995),1o6 Ohio App. 3d 167, r71, 665 N.E.2d 718, 720.547d. citing NASATool Manuf: Corp. v. Cincinnati Milacron (Aug. 31,1987), Clermont App. No. CA 86-07-044, unreported. (Emphasis added).ss Au Rustproofing Center, Inc. v. Gulf Oil Corp., 755 F'.2d 1231(6th Cir. Ohio 1985) citing Militsky v.Merrill, Lynch, Pierce, Fenner and Srnith, 54o F. Supp. 783, 787 (N.D.Ohio 198o).56 Pa1m Beach Co. at 171.57 Id.

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"No more than a reasonable opportunity to discover the fraud is requiredto start the period of limitation."sg

This "opportunity is equivalent to knowledge" for statute of limitations

purposes.59

In applying the foregoing principles to the instant case, the First District

recognized that "[i]nformation sufficient to alert a reasonable person to the possibility of

wrongdoing gives rise to a party's duty to inquire into the matter with due diligence."60

Despite determining "that Wilkerson most likely discovered IIartings' allegedly

fraudulent actions upon the issuance of his reports in 2002,"61 the court gave her "the

benefit of the doubt"62 and used the June, 2003 issuance of the magistrate's written

custody decision ("the absolute latest that this fraud could plausibly have been

discovered"63) for statute of limitations purposes. Even using this later date, the First

District concluded that "Wilkerson failed to file her fraud claim within four years of the

date of discovery."64 In fact, by waiting until May 21, 20o8 to assert this claim for the

first time, Wilkerson missed the applicable statute of limitations by almost an entire

calendar year.

In an on-going attempt to circumvent this clear legal authority, Wilkerson now

asks this Court to create a new discoveiy rule - one based on a subjective standard. The

58 Atuminum Line Prods. Co. v. Brad Smith Roofing Co., io9 Ohio APP.3d 246, 26o, 671 N.E.2d 1343.59 Kettering v. Berger (1982), 4 Ohio App. 3d 254, 261, 448 N.E.2d 465.60 Wilkerson u. Hartings at P15 citing Craqqett u. Adell Ins. Agency (1993), 92 Ohio App.3d 443, 454, 635N.E.2d t326.61 Wilkerson at P16.62 Id. at P17.63 Id.64 Wilkerson at P17.

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proper standard, however, "is normative and requires only facts sufficient to alert a

reasonable person of the possibility...sGS of fraud.

Moreover, even if such a standard could appropriately be created and applied,

Wilkerson's claims would remain time-barred given her actions following the release of

the magistrate's decision. The arguments she immediately made to the 12th District in

appealing that 2003 decision conclusively demonstrates that she had "facts sufficient to

alert a reasonable person to the possibility of wrongdoing." Specifically, Wilkerson

argued in 2003 that:

"...the trial court placed exclusive, undue emphasis on what she believesis an incomplete, inaccurate, and biased psychologist'sreport."66

Furthermore, in that appeal she took:

"...exception to the tnagistrate's reliance on this report, and claim[ed] thatthe report is contrary to the observations of her lay witnesses andinconsistent with the reports of two other psychologists."67

Therefore, in addition to having the constructive knowledge of the magistrate's

report in 2003, Wilkerson also held a belief at that time that Dr. Hartings' reports

were defective in multiple ways. This gave "rise to (the) duty to inquire into the matter

with due diligence,"" and was the "reasonable opportunity to discover the fraud...

required to start the period of limitation."bv

Wilkerson's arguments that she had no knowledge of (and no reason to suspect)

any potential claims against Dr. Hartings iuitil December 15, 2005, the date the consent

decree was issued, are incredible. Even ignoring that this December, 2o05 decree

es T.d. 8 at "Exhibit B"; Wilkerson v. Wilkerson, 2005 Ohio 1236 at P4.66 Wilkerson v. Wilkerson, 2005 Ohio 1236, P 17 (Ohio Ct. App. 2005). (Emphasis added).67 Wilkerson at Pt9.68Au Rusiprooftng Center, Inc. v. Gulf Oil Corp., 755 F.2d 1231 (6th Cir. Ohio 1983) citing Militsky v.Merrill, Lyrich, Pierce, Penner and Smith, 54o F. Supp. 783, 787 (N.D.Ohio 198o).69 Almninwn Line Prods. Co. v. Brad Smith Roofing Co., io9 Ohio App.3d 246, 26o, 671 N.E.2d 1343-

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resulted from the complaint initiated by the "unsuspecting" Wilkerson, a review of the

decree reveals that the information therein goes hand-in-hand with the exact allegations

she has been advancing for years. Furthermore, the consent decree speaks to the issues

of negligence, not any alleged intentional conduct or fraud. Therefore, to argue that this

somehow provided her with new, additional, and/or otherwise undiscoverable

information is disingenuous, at best.

In Glen Homeowners'Ass'n,70 the First District held that a plaintiffs fraud claim

was time-barred since it had been filed more than four years after that party "could be

charged with notice" of the alleged fraud." This Court explained that "it (was) clear that

(plaintiff) knew or should have known of the alleged injuries more than four years

before" filing the complaint.72 Furthermore, "[e]ven if the (plaintift) was unaware of the

particular fraudulent (act)...it could have discovered alleged `systemic' defects through

the exercise of due diligence..."" Therefore, [t]his amounts to constructive, if not actual,

knowledge of alleged fraudulent" behavior.74

Wilkerson has known of her desired allegations against Dr. Hartings since at least

June, 2003. The magistrate's written opinion clearly and unequivocally set forth its

references to, as well as any reliance on, Dr. IIartings and his reports,75 thereby

providing Wilkerson with constructive knowledge of the facts on which she has since

based all of her causes of action. Since this action was not filed until May, 2oo8, it is

time-barred. Dr. Hartings is entitled to judgment as a matter of law.

-/0 Glen Honzeowners'Ass'ri v. 7owne Properties, 1995 Ohio App. Lexis 5321 (Ohio Ct. App., HamiltonCounty Dec. 6, 1995).71 Glen Homeowners'Assii at p. 18.72 Id.7sld.74 Id.

75 T.d. 8 at "Exhibit B"; Wilkerson v. RTilkerson, 2005 Ohio 1236 at P4.

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IV. CONCLUSION

For each of the reasons set forth above, this Court should decline to extend

jurisdiction.

Respectfully submitted,

TRIONA, CALDERHEAD & LOCKEMEYER, LTD

David C. Calderhead (#0039013)(Counsel of Record)Joel L. Peschke (#0072526)Triona, Calderhead & Lockemeyer, Ltd.2021 Auburn Ave.Cincinnati, Ohio 45219Tel: (513) 576-i.o6oFax: 513-576-3792dcalderhead ((t tcl-law. netiyeschke0)tcl-1aw.netCounsel for Defendant-Appellee,Michael F. Hartings, Ph.D.

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PROOF OF SERVICE

The undersigned hereby certifies that a true and accurate copy of the foregoing

was served upon the following by regular mail, postage prepaid, this 9tb day of

December, 2009.

Thomas G. Eagle (#0034492)Thomas G. Eagle Co., L.P.A.3836 N. State Rt. 123Lebanon, Ohio 45036

Tel: (937) 743-2545Fax: (937) 704-9826eaglelawofficeL cs.comCoruisel for Plaintiff-Appellant,Chun Cha Wilkerson

Joel L. Peschke (0072526)

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