IN THE SUPREME COURT OF OHIO

FIFTH THIRD BANCORP, et al.,

Plaintiffs-Ap p ellees,

vs.

U.S. BANK NATIONAL ASSOCIATION,f/k/a FIRSTAR BANK, N.A., et al.,

. Case No. 2006-1926

. On Appeal from the

. Hamilton County Court of Appeals,First Appellate District

Court of Appeals CaseNo. C-0500518

Defen d ant-Appellant,

and

STATE OF OHIO ex rel. JIM PETRO,ATTORNEY GENERAL OF OHIO,

Defendant-Appellee.

MEMORANDUM OF APPELLEE, STATE OF OHIO ex rel. JIM PETRO,ATTORNEY GENERAL OF OHIO, IN

RESPONSE TO APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION

JIM PETROAttorney General

Sherry M. Phillips (0054053)Principal Attomey

Counsel of RecordCharitable Law Section150 East Gay Street, 23rd FloorColumbus, Ohio 43215-3130(614) 466-3180(614) 466-9788 - facsimilesphillips@ag.state.oh.usCounsel for Appellee,Attorney General Jim Petro

^

LF

NOV 14 2000

Timothy C. Sullivan, Esq.TAFT, STETTINIUS & HOLLISTER LLP425 Walnut Street, Suite 1800Cincinnati, Ohio 45202-3957(513) 357-9382(513) 381-0205 - facsimilesullivan@taftlaw.comCounselfor Appellant, U.S. Bank NationalAssociation, f/k/a Firstar Bank, N.A.

James E. Burke, Esq.KEATING, MUETHING & KLEKAMP, P.L.L.1400 Provident TowerOne East Fourth StreetCincinnati, Ohio 45202(513) 579-6429(513) 579-6457 - facsimileiburke@kmklaw.comCounsel for Appellees Fifth Third Bank andElizabeth Gamble Reagan

MARCIA J. MENGEL, CLERKSUPREME COURT OF OHIO

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................................................................................. ii

TABLE OF AUTHORITIES ....................................................................... . i. .............................. v

EXPLANATION OF WHY APPELLANT'S APPEAL SHOULD BE DISMISSED .............1

STATEMENT OF THE CASE AND OF THE FACTS .............................................................2

A. PROCEDURAL POSTURE .....................................................................................................2

B. STATEMENT OF THE FACTS ...............................................................................................3

ARGUMENT .................................................................................................................................4

APPELLANTS' PROPOSITION OF LAW No. 1 :..............................................................................4

A trust instrument that expressly empowers the trustee to retain the original trust propertyalthough it may represent a disproportionate part qf the trust, without liabilityfor loss ordepreciation resultingfrom such retention, eliminates or substantially alters anyrequirement that otherwise might exist to immediately diversify the original assets and iseffective to absolve the trustee of liability for depreciation occurring while the trusteeimplements a plan of diversification .........................................................................................4

APPELLANTS' PROPOSITION OF LAW No. 2 : ..............................................................................4

Parol evidence of communications between a grantor and the trustee before execution of thetrust instrument cannot contradict or alter the express terms of the instrument, and areinadmissible in an action to construe, interpret or enforce the terms of the trust instrument..4

APPELLANTS' PROPOSITION OF LAW NO. 3 :..............................................................................4

Under Evid. R. 702(C), the testimony of lawyers or other expert witnesses about principlesof governing law or conclusions derived from the application of that law to the facts of thecase are not admissible .............................................................................................................4

APPELLANTS' PROPOSITION OF LAW No. 4 : ...................................................:..........................5

11

R. C. 109.25, which authorizes the attorney general to intervene in any judicial proceedingaffecting a charitable trust when he determines that the public interest should be protectedin such proceedings, requires the attorney general lo comply with the Ohio Rules of CivilProcedure applicable to intervention, intervening parties, andpleadings ..............................5

A. PURSUANT TO SECTION 109.25 OF THE OHIO REVISED CODE, THE ATTORNEY GENERAL

IS A NECESSARY PARTY IN A JUDICIAL PROCEEDING, THE OBJECT OF WIIICH IS TO CONSTRUE

THE PROVISIONS OF AN INSTRUMENT WITH RESPECT TO A CHARITABLE TRUST .......................5

O.R.C. § 109.25 .....................................................................................................................5Rosenthal v. Sutton, 31 Ohio St. 406, 1877 Ohio LEXIS 422 (1877) ............................... 5Netting v. Strickland, 9 Ohio Cir, Dec. 841, 1899 Ohio Misc. LEXIS 202 (Ct. App.Hamilton Cty. 1899) .............................................................................................................. 5O.R.C. § 109.25(C) ................................................................................................................6

B. AS A NECESSARY PARTY, THE ATTORNEY GENERAL MAY PARTICIPATE FULLY IN A

PROCEEDING ON BEHALF OF THE CHARITABLE INTERESTS HE REPRESENTS AND MAY ARGUE

IN FAVOR OF ANY POSITION ON ANY ISSUE IN THE PROCEEDING CONSISTENT WITH THE

PROTECTION OF SUCH CHARITABLE INTERESTS .........................................................................6

1. As a necessary party Defendant, the Attorney General has the ability to examinewitnesses and to make opening and closing remarks ..........................................................6

Maggio v. City of Cleveland, 151 Ohio St. 136, 140, 84 N.E.2d 912, 915 (1949) ................6Parusel v. Ewry, 2004 Ohio 404, 2004 Ohio App. LEXIS 355 (Ct. App. Lucas Cty. 2004)6State v. Brown, 85 Ohio App. 3d 716, 621 N.E.2d 447 (Ct. App. Van Wert Cty. 1993).....6Marmorstein v. Schuck, 29 Ohio App. 145, 163 N.E. 218 (Ct. App. Cuyahoga Cty. 1928). 6O.R.C. § 2315.01 ...................................................................................................................6Montanari v. Haworth, 108 Ohio St. 8, 12, 140 N.E. 319, 320 (1923) .................................7Simeon E. Baldwin, The Duty of the State, in Suits Attacking Charitable Bequests, 4 YALEL. J. 133, 135 ( 1895) ..............................................................................................................8Newberry v. Blatchford, 106 Ill. 584, 1883 111. LEXIS 211 (1882) ........ ..............................8Elliott v. Teachers College, 31 N.Y.S.2d 796 ( 1941) ............................................................8

2. The Attorney General did not exceed the acceptable bounds of advocacy in itsparticipation in this case .........................................................................................................8

Darby v. A-Best Products Company, 102 Ohio St. 3d 410, 811 N.E.2d 1117 (2004) .. ........8Fehrenbach v. O'Malley, 2005-Ohio-5554, 2005 Ohio App. LEXIS 5011 (Ct. App.Hamilton Cty. 2005) .............................................................................................................. 9

CONCLUSION .. ..........................................................................................................................11

CERTIFICATE OF SERVICE ..... ...............:.............................................................................12

APPENDIX ...................................................................................................................................13

iii

TABLE OF AUTHORITIES

Page

CASES

Darby v. A-Best Products Company, 102 Ohio St. 3d 410, 811 N.E.2d 1117 (2004) .................... 8Elliott v. Teachers College, 31 N.Y.S.2d 796 (1941) ......................................................................8Fehrenbach v. O'Malley, 2005-Ohio-5554, 2005 Ohio App. LEXIS 5011 (Ct. App. Hamilton

Cty. 2005) ..................................................................................................................................... 9Maggio v. City of Cleveland, 151 Ohio St. 136, 140, 84 N.E.2d 912, 915 (1949) ..........................6Marmorstein v. Schuck, 29 Ohio App. 145, 163 N.E. 218 (Ct. App. Cuyahoga Cty. 1928)...........6Montanari v. Haworth, 108 Ohio St. 8, 12, 140 N.E. 319, 320 (1923) ...........................................7Netting v. Strickland, 9 Ohio Cir. Dec. 841, 1899 Ohio Misc. LEXIS 202 (Ct. App. Hamilton

Cty. 1899) ..................................................................................................................................... 5Newberry v. Blatchford, 106 Ill. 584, 1883 Ill. LEXIS 211 (1882) ................ ................................8Parusel v. Ewry, 2004 Ohio 404, 2004 Ohio App. LEXIS 355 (Ct. App. Lucas Cty. 2004)..........6Rosenthal v. Sutton, 31 Ohio St. 406, 1877 Ohio LEXIS 422 (1877) .............................................5Simeon E. Baldwin, The Duty of the State, in Suits Attacking Charitable Bequests, 4 Yale L. J.

133,135 (1895) .................. ..........................................................................................................8State v. Brown, 85 Ohio App. 3d 716, 621 N.E.2d 447 (Ct. App. Van Wert Cty. 1993) ...............6

STATUTES

O.R.C. § 109.25(C) ..........................................................................................................................6O.R.C. § 2315.01 .............................................................................................................................6

OTHER AUTHORITIES

D. Michael Risinger, Unsafe Verdicts: The Need for Reformed Standards for the Trial andReview ofFactual Innocence Claims, 41:4 HousTOtv L.R. 1281, 1298 n.89 (2004) .................7

iv

EXPLANATION OF WHY APPELLANT'S APPEAL SHOULD BE DISMISSED

Appellant barely attempts to support its claim that this case is of great public or general

importance, instead focusing on the minutia of its complaints. The role of the Attorney General

is historic and broad, and constraining the Attorney General to narrow boundaries in argument

and trial conduct would violate the longstanding public policy supporting the protector of

charitable interests. Moreover, the Attorney General did not exceed the normal boundaries of a

party defendant by agreeing with the Plaintiffs that the Plaintiffs' case had merit. This strategy is

so widely known that it has been given its own acronym, the S.O.D.D.I. defense.' The Attorney

General did not assert any claims in the case, nor did he seek separate or additional damages

from the Defendant. As a necessary party, even a party defendant, the Attorrrey General was

entitled to comment on the evidence, examine witnesses, and comment on the merits of the case

to the jury. Complaining of such conduct hardly warrants Supreme Court review.

' The "Some Other Dude Did It," defense is discussed, infra, at p. 7.

I

STATEMENT OF THE CASE AND OF THE FACTS

A. Procedural Posture

The Attorney General was named in the caption of the original Complaint with the other

parties to the suit (Doc. 2), and was directed by the Court's Summons to appear and answer as a

party Defendant (Doc. 4). The Attorney General timely filed a general Answer on Oct. 18, 2002.

(Doc. 7.) On July 6, 2004, concerns were raised that the Complaint was vague about whether the

Attorney General was properly joined as a party Defendant, and whether the Attorney General's

original Answer properly gave notice regarding his intent to support the allegations of Plaintiffs'

Complaint. (Tr. pp. 24-25.) As admitted in the Brief of Appellant in the Court of Appeals on

page 5, the parties and the trial court agreed that the Attorney General would be considered a

party Defendant without the need to file a formal motion to intervene. (Id. at 53-58.) Knowing

that the Attorney General intended to participate at trial based on his amended pleading, counsel

for Appellant agreed that it would raise any objections to the pleading "immediately." (Id. at 58-

59.)

On Aug. 4, 2004, the Attomey General filed his Amended Answer admitting the

allegations in the Complaint and praying that judgment be granted in favor of the Plaintiffs.

(Doc. 36.) Appellant failed to raise any objection to the Attorney General's Amended Answer

until Jan. 3, 2005, the day before trial, when Appellant filed a Motion in Limine Regarding

Attorney General "contest[ing] the right of the Attorney General to participate at the trial."

(Doc. 37, p. 2.) The Motion was denied and the parties, including the Attorney General,

proceeded to trial on Jan. 4, 2005. (Doc. 38, 39.) Throughout the trial, the Attorney General

agreed that the Plaintiffs' claims against Defendant-Appellant had merit, and that the charitable

interests represented by the Attomey General had been harmed.

2

B. Statement of the Facts

Plaintiff-Appellee Elizabeth Gamble Reagan ("Reagan") inherited a very large mmnber of

shares of the common stock of Procter & Gamble, Inc. (Tr. p.276), and thereafter established a

charitable remainder trust ("Trust") in order to preclude certain unfavorable tax consequences.

(Tr. p. 226.) Defendant-Appellant U.S. Bank National Association, f/k/a/ Firstar Bank (the

"Bank") was selected as trustee. (Tr. p. 221.) The Trust was funded with 17,675 shares of

Procter & Gamble stock initially (Tr. p. 226), and the Trust's assets were to be diversified

thereafter. (Id.) The alacrity with which such diversity was to occur was a significant factual

issue in this proceeding.

The Trust was to provide income to Reagan during her lifetime, and, after her death, the

Trust's assets were to be distributed to charity. (Tr. p. 224-25.) The Trust created by Reagan is

commonly known as a "charitable remainder unitrust" ("CRUT"). Such trusts are created to

benefit charities in this manner because of certain favorable federal tax treatment. (Tr. Ex. 1;

Report of John W. Peavy, III, Tr. Ex. 41, p. 9; Report of Christopher P. Bloomstran, III, Tr. Ex.

67, p. 8.) During the first year of the Trust's existence, income distributions were made to

Reagan in the amount that was anticipated when the Trust was established. (Tr. p. 229-30.) A

year later, however, Reagan was informed that the income distribution would be approximately

half the first year's amount because the value of the Trust's assets had diminished to

approximately half the original amount. (Tr. p. 234.) Thereafter, Reagan discovered that the

Bank had failed to expeditiously liquidate the Procter & Gamble stock in order to diversify the

Trust's assets, and the stock had precipitously declined in value. (Tr. p. 235.) At trial, the Bank

"admit[ted] that it served in the capacity of Trustee of the Charitable Trust and therefore was a

fiduciary to the Charitable Trust." (Jury Instructions, Tr. pp. 702-03.)

3

The factual issues in the case included whetlier the Bank had a duty to diversify the

Trust's assets more expeditiously than it did, and whether the Bank had breached that duty.

After hearing the evidence, the jury decided these factual issues in favor of Plaintiffs and

imanimously found that the Bank had breached its fiduciary duty. Based on this verdict, the jury

awarded Plaintiffs $1,040,022 in damages.

ARGUMENT

Appellants' Proposition of Law No. 1:

A trust instrument that expressly empowers the trustee to retain the original lrust propertyalthough it may represent a disproportionate part of the trust, without liability for loss ordepreciation resulting from such retention, eliminates or substantially alters any requirementthat otherwise might exist to immediately diversify the original assets and is effective to absolvethe trustee of liability for depreciation occurring while the trustee implements a plan ofdiversification.

The Attorney General will not specifically address this Proposition of Law and, instead

adopts the arguments of Appellees Fifth Third/Reagan on this issue.

Appellants' Proposition of Law No. 2:

Parol evidence of communications between a grantor and the trustee before execution of thetrust instrument cannot contradict or alter the express terms of the instrument, and areinadmissible in an action to construe, interpret or enforce the terms of the trust instrument.

The Attorney General will not specifically address this Proposition of Law and, instead

adopts the arguments of Appellees Fifth Third/Reagan on this issue.

Appellants' Proposition of Law No. 3:

Under Evid. R. 702(C), the testimony of lawyers or other expert witnesses about principles ofgoverning law or conclusions derived from the application of that law to the facts of the case arenot admissible.

The Attorney General will not specifically address this Proposition of Law and, instead

adopts the arguments of Appellees Fifth Third/Reagan on this issue.

4

Appellants' Proposition of Law No. 4:

R.C. 109.25, which authorizes the attorney general to "intervene in any judicial proceedingaffecting a charitable trust when he determines that the public interest should be protected insuch proceedings, " requires the attorney general to comply with the Ohio Rules of CivilProcedure applicable to intervention, intervening parties, and pleadings.

A. Pursuant to Section 109.25 of the Ohio Revised Code, the Attorney General is anecessary party in a judicial proceeding, the object of which is to construe theprovisions of an instrument with respect to a charitable trust.

Ohio Revised Code Section 109.25 requires the Attorney General's participation as a

necessary party in charitable trust suits on four specified grounds, including, in subsection (C),

cases that "[c]onstrue the provisions of an instrument with respect to a charitable trust."

Although the Complaint may have been vague, having been served and summoned as a

Defendant to answer allegations dealing with a charitable trust which were set forth in a

Complaint naming the Attorney General in the caption, and having filed an Answer, the Attorney

General waived any deficiencies in the Complaint and became a proper party Defendant in the

proceeding. Rosenthal v. Sutton, 31 Ohio St. 406, 1877 Ohio LEXIS 422 (1877) (defendant

submitted himself and his controversy to the jurisdiction of the court by filing an answer upon

leave of court, and this made him a party); Netting v. Strickland, 9 Ohio Cir. Dec. 841, 1899

Ohio Misc. LEXIS 202 (Ct. App. Hamilton Cty. 1899) ("A person by filing an answer, with

leave of the court, thereby becomes a party to the action without formal order making him

such."). As such, the Attorney General had an absolute right to appear at trial and make

arguments as it deemed appropriate regarding the disputes at issue. Moreover, the Attorney

General was a necessary party to the proceeding, and any judgment without his participation

would have been void and unenforceable.

5

A central facet in this case was the need to "[c]onstrue the provisions of an instrument

with respect to a charitable trust." Thus, this case falls squarely within the scope of O.R.C. §

109.25(C), one of the four enumerated proceedings in which the Attorney General is a necessary

party. Having agreed to the trial court's decision in July of 2004 that the Attorney General need

not file a formal motion to intervene, but would be deemed to be a party to the proceeding based

upon the original Complaint, the Bank cannot now argue that the Attorney General was not a

proper party to the proceeding. (Tr. pp. 53-58.)

B. As a necessary party, the Attorney General may participate fully in a proceeding onbehalf of the charitable interests he represents and may argue in favor of anyposition on any issue in the proceeding consistent with the protection of suchcharitable interests.

1. As a necessary party Defendant, the Attorney General has the ability toexamine witnesses and to make opening and closing remarks.

The function of opening statements is to "inform the jury in a concise and orderly way of the

nature of the case and the questions involved, and to outline the facts intended to be proved."

Maggio v. City of Cleveland, 151 Ohio St. 136, 140, 84 N.E.2d 912, 915 (1949). Counsel are to

be "accorded latitude by the trial court in making [their] opening statement." Id. The purpose of

closing arguments is "to aid the jury in applying the law to the facts." Parusel v. Ewry, 2004

Ohio 404, 2004 Ohio App. LEXIS 355 (Ct. App. Lucas Cty. 2004). Similarly, lawyers must be

allowed "broad latitude" in making their closing arguments. State v. Brown, 85 Ohio App. 3d

716, 621 N.E.2d 447 (Ct. App. Van Wert Cty. 1993); Marmorstein v. Schuck, 29 Ohio App.

145, 163 N.E. 218 (Ct. App. Cuyahoga Cty. 1928).

Nothing in the trial practice guidelines set forth in O.R.C. § 2315.01 indicates that a

defendant cannot agree with a plaintiff on the evidence at trial. Accordingly, nothing in the

Attorney General's opening statement or closing argument at trial violated Ohio's trial practice

6

laws merely because those arguments agreed with Plaintiffs that the Bank had violated its

fiduciary duties.

The Bank's chief complaint has been, and continues to be, that the Attorney General

"sided" with the Plaintiff, without having filed a cross claim. However, defendants have long

pointed their fingers at co-defendants or other persons in making their defense. For example, in

Montanari v. Ilaworth, 108 Ohio St. 8, 12, 140 N.B. 319, 320 (1923), the defendant answered

with a general denial, followed by a statement that the plaintiff's personal injury damages were

caused by the negligence of a third party. As noted by the Ohio Supreme Court, such averments

do not constitute an affirmative defense, but rather the plaintiff remains duty bound to prove his

case:

The attitude of the defendant under the pleadings was defensive. The issue wasmade by a general denial, and the further averment, above quoted, did not changethe issue or in any wise change or affect the burden of proof. Id. at 320.

The Bank would have this Court dismantle a legendary defense.2 Basically, once the

Attorney General was clearly a necessary party defendant in the case, the Bank would have this

Court rule that unless the Attorney General filed a cross claim or had himself realigned as a party

plaintiff, he could not point the finger at some other party and say, "he did it." The Batik

proposes trial practice standards under which necessary party defendants could not make opening

statements, examine witnesses or present closing arguments to the jury on issues that clearly

affect those necessary party defendants. Neither the Civil Rules of Procedure nor judicial

practicalities support such standards, and changing current practices would be unfair to the

charitable interests represented by the Attorney General.

z This defense is commonly known by its acronym, S.O.D.D.I., a form of legal shorthand that stands for the "SomeOther Dude Did It" defense. D. Michael Risinger, Unsafe Verdicts: The Need for Reformed Standards for the Trialand Review ofFactualInnocence Claims, 41:4 HoUSToN L.R. 1281, 1298 n.89 (2004).

7

The historic role of the Attorney General warrants latitude in trial practice, permitting

him to comment upon evidence and make opening and closing statements even without having

made a formal claim in the proceedings. As stated by one commentator,

[The Attorney General's] function [in suits affecting either the validity or theadministration of a charitable gift] would be somewhat analogous to that of theQueen's Proctor in England, in uncontested divorce suits. He would be bound tosee that all the material facts were placed before the Court; that there was nothingsavoring of collusion; and that the leading authorities in support of the bequest, ifits validity were questioned, were fairly presented.

Simeon E. Baldwin, The Duty of the State, in Suits Attacking Charitable Bequests, 4 YALE L. J.

133, 135 (1895). Historic practice authorized attorneys general to participate in suits upon a

general answer as a necessary party defendant without filing a separate cross-bill, if the attorney

general agreed with the positions of the plaintiffs original bill. E.g., Newberry v. Blatchford,

106 III. 584, 1883 Ill. LEXIS 211 (1882). Moreover, filing of a general Answer that supported

the charitable interests at issue may have had the effect of aligning the Attorney General with the

Plaintiffs. Elliott v. Teachers College, 31 N.Y.S.2d 796 (1941) ("A motion...to dismiss the

complaint...was heretofore denied, but the denial was predicated upon the fact that by his answer

the Attorney-General in effect had joined the plaintiffs.").

2. The Attorney General did not exceed the acceptable bounds of advocacy in itsparticipation in this case.

In its fourth proposition of law, the Bank accuses the Attorney General of inciting the

jury by overt appeals to passion, prejudice and sympathy by improperly lending the imprimatur

of the State to the Plaintiffs' case. In reviewing the transcript, it is readily apparent that the

Attorney General's comments in this case are well within the acceptable bounds of advocacy.

The appropriate standard of review on this issue is whether the trial court abused its discretion.

E.g., Darby v. A-Best Products Company, 102 Ohio St. 3d 410, 811 N.E.2d 1117 (2004). Abuse

of discretion is a high standard for an appellant to overcome. As this Court stated, "[a]buse of

8

discretion connotes more than a mere error of law or judgment, instead requiring a finding that

the trial court's decision was unreasonable, arbitrary, or unconscionable. [citations omitted.]" Id.

at 414. Using this standard, none of the rulings complained of in this appeal constitute an abuse

of discretion by the trial court.

In the Court of Appeals, the Bank relied upon Fehrenbach v. O'Malley, 2005-Ohio-5554,

2005 Ohio App. LEXIS 5011 (Ct. App. Hamilton Cty. 2005), to support this argument. In that

case the defense counsel repeatedly mischaracterized the evidence and made derogatory

comments about the plaintiffs, the plaintiffs' witnesses and the plaintiffs' counsel in an attempt

to "demonize" them before the jury. The Bank characterized the actions of defense counsel in

the Fehrenbach case as "less egregious" than actions of the Attorney General in the present case.

This is unwarranted. The basis for the holding in Fehrenbach was clearly set forth by the Court

as follows:

The law is unambiguous: "When argument spills into disparagement not based onany evidence, it is improper." [Citations omitted.] In this case, defense counselmade improper comments and arguments repeatedly, presenting a defense notwarranted by the evidence that was intended to mislead the jury.

Feherenbach at ¶ 25.

Even the Bank's Brief in the Court of Appeals demonstrates that the actions of the

Attorney General in this case are not at all comparable to those of defense counsel in

Fehrenbach. The Attorney General's remarks about which the Bank complained were made

during voir dire, opening statement and closing argument. During voir dire (Tr. p. 97) and

opening statement (Tr. p. 201), the Assistant Attorney General informed the jury that the

Attorney General represents the charitable interests that would be affected by the verdict and

asked the jury "to keep those parties in mind" as it decided the case. It is inconceivable that

anyone would consider those statements to be "overt appeals to passion, prejudice and

sympathy." Then, during closing argument (Tr. p. 656-668), the Assistant Attorney General

9

advocated on behalf of the same charitable interests by pointing out that such interests, in

addition to the plaintiff/settlor of the charitable remainder trust, would be affected by the verdict

and asked the jury to return a verdict in favor of the Plaintiffs. There was no misstatement of any

facts, no disparagement of the Bank, and no attempt to mislead the jury. The statements and

argument focused on the facts and the issues that were presented in the case. If an attorney is not

permitted to advocate on behalf of his clients simply because such clients include "sick

children," the result would be to effectively deny due process to any party for whom the jury

might be sympathetic.

In Fehrenbach, this Court expressly recognized "the wide latitude provided to counsel in

opening statement and closing argument." Fehrenbach at ¶ 26. The statements made by the

Attorney General in this proceeding were well within the bounds of that wide latitude and do not

come close to the "gross and abusive conduct" present in Fehrenbach. See Fehrenbach at ¶ 28.

The Attorney General properly and appropriately participated herein, and the trial court's rulings

in this matter were not "unreasonable, arbitrary or unconscionable" either individually or

cumulatively. Thus, the trial judge did not abuse his discretion by denying the Bank's JNOV and

by not ordering a new trial.

10

CONCLUSION

For the foregoing reasons, the Ohio Attorney General respectfully requests that this Court

decline to exercise its discretionary jurisdiction, as the matters at issue are neither of great public

interest nor of great significance with respect to the development of the law of Ohio.

Respectfully submitted,

Sherry Ihi7lips (00540J3)Principa ttorney

Counsel of Record150 East Gay Street, 23rd FloorColumbus, Ohio 43215(614) 466-3180(614) 466-9788 - facsimilesphilli s a,aa.state.oh.us

Counsel for Appellee,Attorney General Jim Petro

11

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing were forwarded by regular U.S. Mail,

postage prepaid, and via facsimile to the following this Lfi^-kday of November, 2006.

James E. Burke, Esq.Sue A. Erhart, Esq.KEATING, MUETHING & KLEKAMP, P.L.L.1400 Provident TowerOne East Fourth StreetCincinnati, Ohio 45202

Timothy C. Sullivan, Esq.TAFT, STETTINIUS & HOLLISTER LLP425 Walnut Street, Suite 1800Cincinnati, Ohio 45202-3957

F:\Charitable\Legal\Attomeys\SMP\FifthThird.Reagan.Supreme Ct Memo Jurisdiction AGl.doc

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