PATA History Pages

Findings of Fact & Conclusions of Law - - ? Director -2-

Did attorneys Mapes & Brahm violated a Court ordered Stay ?

pages 2-3

15. On September 13,2002, Judge Luse (acting for Judge Clark) signed the Order
staying further proceedings, and the Order was filed in the Clerk's Office at 9:59 a.m. on that
date. Mr. Michalski was the only attorney present when Judge Luse signed the Order. None of
the Respondents or their counsel were notified of the time and date that Mr. Michalski would
approach Judge Luse relative to obtaining his signature on the Order.
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16. On September 13, 2002, Ms. Carter forwarded a facsimile transmission to Ms. :
Cunningham which included a cover sheet and a copy of the Order signed and filed on
September 13,2002.
17. On September 13,2002, Mr. Michalski forwarded a facsimile transmission to Mr.
Brahm and Ms. Cunningham which included a cover sheet and a copy of the Order signed and
filed on September 13, 2002. Both Mr. Brahm and Ms. Cunningham saw the signed Order on
September 13, 2002.
18. On September 13, 2002, Mr. Brahm forwarded a letter to Mr. Michalski, a copy
of which is attached hereto as Exhibit A. No enclosures were included with Mr. Brahm's;
September 13th letter, and Mr. Brahm did not forward the letter to anyone by any means other
than by regular mail.
19. Neither Mr. Brahm nor Ms. Cunningham made any attempt to assure that the City
Clerk or other City officials were aware of the Court's Order.
20. The September 13,~2002, letter was received by Messrs. Michalski and Draper
and Ms. Carter on September 14, 2002.
21. Mr. Mapes claims that he did not receive the September 13 letter until September
23. Under the "mailbox rule," it was reasonable for the Township's attorneys to presume that
Mr. Mapes had received the letter on or before September 17, 2002.
22. After sending a copy of the Court's Order to Mr. Brahm on September 13,
Petitioners in this action made no further attempts to contact or notify Mr. Brahm, Mr. Mapes, or
any City official prior to the meeting of the City Council on the evening of September 17, 2002,
on the ground that Mr. Brahm had been hired by and paid by the City to prosecute this
annexation and consistently served as outside counsel to the City for annexation matters.
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. 23. If called to testify, Ms. Yartin, and all other officials and employees of the City of
Pickerington, would testify that none of them saw or had any knowledge of the Order filed in this
action on September 13,2002, until the afternoon of September 19, 2002, when a copy of the
Order was delivered to the receptionist at the City of Pickerington offices.
24. On September 17, 2002, Ms. Yartin presented the annexation papers to the
Pickerington City Council at its regular meeting on that date, and the Pickerington City Council
passed Ordinance No. 2002-118 accepting the territory (316 acres) subject of this action.

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25. On September 18,2002, Ms. Yartin and Mr. Mapes caused copies of the
Ordinance accepting the annexation to be filed with the Fairfield County Recorder, the Fairfield
County Auditor, and the Ohio Secretary of State.
26. On September 19,2002, the Clerk of the Fairfield County Court of Common
Pleas issued Summons and the pleadings filed herein on September 6, 2002, by Certified Mail,
return receipt requested, to the Respondents at the addresses shown on the original Petition. The
Order entered in this action on September 13, 2002, has never been served by the Clerk of Courts
or any official appointed by the Court upon either of the Respondents.
27. Mr. Brahm and his law fiffi1 represented the City ofPickerington on a regular
basis in various matters, including all annexation matters, during the year 2002, and for some
years prior to that.
; 28. The City ofPickerington regularly enters into pre-annexation agreements with
~~ Co ,~i property owners whose land the City seeks to annex under the laws of Ohio.
29. Pickerington regularly retains and pays an attorney to assume the role of Agent
for the annexation petitioners in the proceedings before the Board of County Commissioners and
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any subsequent appeals or injunction actions, and it has consistently, for several years, hired Mr. :
Brahm to serve in that capacity.
30. Mr. Brahm became the Agent for the petitioning landowners in this annexation of
316 acres to Pickerington through the process described in paragraphs 28 and 29 whereby the
City agreed to pay his fees for representing those property owners.
31. Mr. Brahm had little, if any, direct contact or communication with the owners of
the property included in this 316 acre annexation. His associate, Ms. Cunningham, who was
i involved in the preparation for the annexation hearing, had no recollection of having met any of
the owners, but did work with City employees in preparing for the annexation hearing before the .
Board of County Commissioners.
32. At the hearing before the County Commissioners on April 30, 2002, Mr. Brahm,
and his associate, presented the entire case for annexation.
33. During the April 30,2002, hearing, Mr. Brahm cross-examined an expert witness
who was presented by Violet Township on the issue of whether the City had the necessary
capacity to provide water to the area being annexed.
34. Mr. Brahm has entered an appearance as an attorney for the City ofPickerington
in the action styled Violet Township Trustees v. City of Pickerington, Case No. 02-CV -00040 in
the Fairfield County Court of Common Pleas, and Case No. 02 CA 41 in the Fifth District Court
of Appeals.
35. The case referred to in paragraph 34 involves the legality and enforceability of
pre-annexation agreements between Pickerington and various property owners, including the
agreements with the owners of the 316 acres being annexed in this proceeding.
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. 36. When Mr. Brahm received a voice mail message from Ms. Carter that requested
an agreed stay order, he called the City's law director, Mr. Mapes, and City Manager, Ms.
Bushman.
37. When Mr. Brahm received a copy of this Court's Order on September 13, he did
not call or communicate with anyone associated with the City or the property owners whose land
was being annexed, except for the letter of September 13 which he sent to Mr. Michalski, with
copies to Draper, Carter, and Mapes.

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38. The September 13th letter clearly states that Mr. Brahm had received a copy of a
Stay Order signed by Judge Luse and his letter references this case (Violet Township Board of
Trustees, Petitioners, v. Lynda Yartin and Richard C. Brahm, Agent for Petitioners,
Respondents, Case No. 02 CV 645). Prior to receiving the Stay Order, Mr. Brahm had received
copies of the Petition, the Motion, and other pleadings filed by Petitioners.
39. At all times pertinent hereto, Mr. Brahm and his law firm were serving as
attorneys for the City of Pickerington, as well as Agent and attorney for the petitioning property
owners.
40. Mr. Brahm's role as Agent for Petitioners in the annexation proceedings did not
remove him from also serving as outside counsel for the City of Pickerington.
41. While Mr. Brahm may have been representing the property owners whose
property was being annexed and may have served as the Agent for the property owners, he was
also an attorney for the City of Pickerington at all times between April 30, 2002, and the date of
this Court's hearing on January 10,2003.
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42. Notice of the September 13,2002, Order of Stay to Mr. Brahm constituted notice :
to the City of Pickerington that the annexation proceedings were stayed until further disposition
by this Court.
43. Attorneys for Violet Township reasonably assumed that Mr. Brahm was an
attorney for the City of Pickerington, as well as Agent for the Petitioners in this annexation
proceeding, and that Mr. Brahm and his law firm would represent the City ofPickerington in any
appeal or injunction action filed subsequent ot the County Commissioners' decision.
B. CONCLUSIONS OF LAW
1. The Stay Order of this Court executed on September 13, 2002, is a valid and
enforceable order.
2. Counsel for Violet Township and the Village of Canal Winchester reasonably
assumed that notice to Mr. Brahm was notice to the City of Pickerington.
3. The notice that was given to Attorney Richard Brahm on September 13,2002,
constituted proper and effective notice on his client, the City of Pickerington.
4. It was reasonable for the Violet Township attorneys to assume that Mr. Mapes
received the copy of Mr. Brahm's letter of September 13, 2002, prior to the time when City
Council met on September 17, 2002.
5. The failure of Mr. Brahm to further notify the Law Director, the City Clerk or
City Council of the receipt of the Stay Order does not excuse the Clerk and City Council from
their actions on September 17, 2002, which were in direct violation of this Court's Stay Order.
6. The City ofPickerington must be, and hereby is, enjoined from proceeding any
further with the annexation of the 316 acres at issue until after the court has conducted a hearing
on the Petition for Injunction under R.C. §709.07, and this injunction would prevent the City
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. from providing services to the area being annexed or from collecting taxes from that property
and the property owners.
7. The status quo ante of September 13,2002, is hereby restored to enable the
parties to proceed on the merits.