Case: 100890 Motion: 477052 Efile ID: 191786-1 Filed: Thursday, July 24, 2014

IN THE COURT OF APPEALS

EIGHTH APPELLATE DISTRICT
CUYAHOGA COUNTY, OHIO
____________________________________________________________
CASE NO: 100890
____________________________________________________________
PAULETTE KOLOSAI, Administrator of the Estate of NICHOLAS
GIANCOLA,
Plaintiff-Appellant
v.
HAITHAM MOUAID AZEM, M.D., WALTON MANOR HEALTH CARE
CENTER, SABER HEALTHCARE GROUP, LLC, SABER HEALTHCARE
HOLDINGS, LLC, SABER HEALTHCARE FOUNDATION,
Defendant-Appellees.
____________________________________________________________
PLAINTIFF-APPELLANT'S MOTION TO STRIKE
PORTION OF APPELLEES' BRIEF
____________________________________________________________
On appeal from the Cuyahoga County, Ohio Court of Common Pleas
Case Number: CV-13-806065
____________________________________________________________
Mark A. DiCello (0063924)
Robert F. DiCello (0072020)
THE DICELLO LAW FIRM
7556 Mentor Avenue
Mentor, Ohio 44060
P: 440-953-8888
F: 440-953-9138
E: madicello@dicellolaw.com
rfdicello@dicellolaw.com

Leslie M. Jenny, Esq. (0067145)

MARSHALL, DENNEHEY, WARNER, COLEMAN &
GOGGIN
127 Public Square Suite 3510
Cleveland OH 44114
Tel: 216 912 3800
Email: lmjenny@mdwcg.com
Counsel for Defendant-Appellee Walton
Manor Health Care

Jacques G. Balette
MARKS, BALETTE & GIESSEL, P.C.
10000 Memorial Drive, Suite 760
Houston, Texas 77024
P: 713-681-3070 / F: 713-681-2811
E: jacquesb@marksfirm.com
Counsel for Plaintiff-Appellant

Rita A. Maimbourg,
Jane F. Warner,
TUCKER ELLIS, LLP
950 Main Avenue Suite 1100,
Cleveland, Ohio 44113,
Counsel for Defendant Dr. Azem,

Now comes Appellant Paulette Kolosai, Adminstrator of the Estate of Nicholas

Giancola, by and through counsel, and moves this Court to strike certain portions of
Brief of Defendant-Appellees Walton Manor Health Care Center, Saber Healthcare
Group, LLC, Saber Health Care Holdings, LLC, and Saber Healthcare Foundation.
Defendant-Appellees' Brief attaches and relies upon evidence not considered by the trial
court and not part of the appellate record.
A.

BACKGROUND
On April 28, 2014, Appellant filed Brief of Plaintiff-Appellant and served copies

on Attorney for Appellee.

On May 16, 2014, Appellees filed Brief of Defendant-Appellees Walton Manor
Health Care Center, Saber Healthcare Group, LLC, Saber Health Care Holdings, LLC,
and Saber Healthcare Foundation (hereinafter "Appellees' Brief"). However, Appellees
failed to effect service of its Brief on Counsel for Plaintiff-Appellant. (See Exhibit "A,"
Affidavit of Jacques G. Balette, and Exhibit B, Affidavit of Mark A. DiCello.)
Consequently, Appellant did not know Appellees had filed its response brief until
July 9, 2014, when the Court sent notice of oral arguments in the case. Accordingly,
Appellant did not filed a Rely Brief in the case. Nonetheless, review of a copy of
Appellees' Brief retrieved from the Court's electronic docket indicates that no Reply
should be necessary because the only arguments made by Appellee that are not
addressed in Brief of Plaintiff-Appellant are entirely based on evidence not part of the
appellate record.

Therefore, Appellant respectfully asks this Court to Strike the

inappropriately appended evidence and the portions of Appellees' Brief based on that
evidence.

B.

THIS COURT SHOULD STRIKE EVIDENCE THAT IS OUTSIDE THE

RECORD AND ARGUMENT BASED THEREON.
Appellees' Brief appends and relies upon the Admission File of Rose Giancola

(Appellees' Brief, Appendix "B") in an attempt to convince this Court to disregard the
sworn testimony of its own employee, Stephanie L. Lewis-McCaulley, who testified that
Rose Giancola signed the arbitration agreement at issue on behalf of Nicholas Giancola.
However, this Court cannot consider Appellees' Appendix "B," or any argument based
thereon, because it was never presented to the trial court or produced in discovery and
is therefore outside the appellate record.
"It is a basic proposition of appellate review that [the appellate court] cannot add
matter to the record before [it] and decide [an] appeal based upon that new matter." In
re Hlavsa, 139 Ohio App.3d 871, 874, 745 N.E.2d 1144, 1146 (2000) (citing Barnett v.
Ohio Adult Parole Auth., 1998-Ohio-434, 81 Ohio St.3d 385, 387, 692 N.E.2d 135, 13637 (1998)). Evidence not made part of the record that is attached to an appellate brief
cannot be considered by a reviewing court. OHIO R. APP. P., Rules 9(A), 12(A); Lamar v.
Marbury, 69 Ohio St.2d 274, 278, 431 N.E.2d 1028, 1031 (Ohio 1982); State v. Zhovner,
2013-Ohio-749, 987 N.E.2d 333, 337-38 (Ohio Ct. App. 2013).
In this case, Appellees state that Rose Giancola, Nicholas Giancola's mother, was
admitted to Walton Manor less than a month after Nicholas. Appellees' Brief, p. 6. As
such, contrary to Appellees mischaracterization of Rose Giancola's Admission File as
new evidence, Appellees concede that they were in possession of Rose Giancola's
Admission File long before this lawsuit was filed. Nonetheless, Appellees chose not to
present Rose Giancola's Admission File to the trial court when arguing for enforcement
of the arbitration agreement at issue. Furthermore, even after hearing Ms. Lewis-

McCaulley's testimony that Rose Giancola signed the arbitration agreement on behalf of
Nicholas Giancola, Appellees did not present Rose Giancola's Admission File to the trial
court. Rather, the first time Appellees made any reference to Rose Giancola's Admission
File was when it was inappropriately appended to Appellees' Brief. Indeed, Appellees'
Brief even acknowledges the impropriety of raising new evidence in an appellate review.
Appellees' Brief, p. 3.
Therefore, Appellant respectfully asks this Court to strike Appendix "B" to
Appellees' Brief and all arguments based thereon because it is inappropriately appended
and outside the appellate record.
Dated: July 24, 2014
Respectfully,

_______________________________
Mark A. DiCello (0063924)
Robert F. DiCello (0072020)
THE DICELLO LAW FIRM
7556 Mentor Avenue
Mentor, Ohio 44060
P: 440-953-8888 / F: 440-953-9138
madicello@dicellolaw.com
Jacques G. Balette
MARKS, BALETTE & GIESSEL, P.C.
10000 Memorial Drive, Suite 760
Houston, Texas 77024
P: 713-681-3070 / F: 713-681-2811
jacquesb@marksfirm.com

CERTIFICATE OF SERVICE
I certify that on July 24, 2014, a copy of the Plaintiff-Appellant Motion to Strike
Portion of Appellees' Brief has been served on Leslie M. Jenny, Attorney for Appellee, at
MARSHALL, DENNEHEY, WARNER, COLEMAN, & GOGGIN, 127 Public Square, Suite
350, Cleveland, Ohio 44114, and Rita A. Maimbourg, Jane F. Warner, Attorneys for Dr.
Azem, at TUCKER ELLIS, LLP, 950 Main Avenue Suite 1100, Cleveland, Ohio 44113, via
this courts electronic filing system, and/or certified mail, and/or return receipt
requested, and/or first class mail and/or electronic mail.

______________________________
Robert F. DiCello (0072020)

EXHIBIT A

EXHIBIT A

EXHIBIT B

STATE OF OHIO
COUNTY OF LAKE

)
)
)
)

AFFIDAVIT OF MARK A. DICELLO

SS:

NOW COMES Affiant, Mark A. DiCello, counsel for Plaintiffs-Appellees in the

case styled, Paulette Kolosai v. Haitham Mouaid Azem, M.D., et al., Case No.: CA-14100943, being first duly sworn, and having personal knowledge of the facts contained
herein, truthfully states as follows:
1.

On April 28, 2 014, Plaintiff-Appellant filed Brief of Plaintiff-Appellant in this

case.
2.

I did not receive a copy of Brief of Defendant-Appellees because counsel who was

formerly 'Vlrith this firm and assigned to this case failed to provide it to me and failed to
advise me of the pendency of it. Neither Defendant-Appellees, nor its counsel ever
notified me that Brief of Defendant-Appellees had been filed.
3.

On July 14, 2014, I received notice from Comt of Appeals of Ohio, Eighth

Appellate District, postmarked July 9, 2014, that this case was set for argument on
August 22, 2014. This was the first notice I received of any activity on the case after the
filing of the Brief of Plaintiff-Appellant.
4.

After receiving the July 9, 2014, notice from the Court of Appeals, I too checked

this Court's website and found that Defendant-Appellees Brief had been filed on May
2014.
5.

I inquired of my office staff and found that an electronic copy of Appellees' Brief

was saved by the counsel formerly with my firm and assigned to this case- but it was
never forwarded to me or shared with anyone in the office, per our standard protocol.

EXHIBIT B

6.

Following this discovery, new counsel was assigned to this matter.

7.

Additionally, upon reviewing Defendant-Appellees' brief, I noted that Appendix

"B" was comprised of Rose Giancola's Admission File, which was never presented to the
trial court or produced in discovery in this case.
8.

Rose Giancola's Admission File is comprised of documents that are not pait of

the record on appeal.

9.

Plaintiff-Appellant requests that Appendix "B" to Defendant-Appellees Brief and

all arguments based thereon be stricken.

FURTHER AFFIANT SAYETH NAUGHT.

MAR

SWORN TO BEFORE ME AND SUBSCRIB

DAY OF JULY, 2014.
NOT~

Y PUBLIC

Robe1t F. DiCello
Attorney, no commission.