State ex rel. Bitter v. Missig

• Decision Date: 24 May 1995
• Docket Number: No. 94-2096,94-2096
• Parties: The STATE ex rel. BITTER et al., Appellants, v. MISSIG, Clerk, et al., Appellees.
• Court: Ohio Supreme Court

Page 249

72 Ohio St.3d 249

648 N.E.2d 1355

The STATE ex rel. BITTER et al., Appellants, v. MISSIG, Clerk, et al., Appellees.

No. 94-2096.

Supreme Court of Ohio.

Submitted March 21, 1995.

Decided May 24, 1995.

On June 5, 1992, appellants, Paul L. Bitter and Sandra L. Bitter, filed a shareholder derivative action against various defendants, including appellees Charles L. Jones and Phillip C. Jones, in the Ottawa County Court of Common Pleas. On March 29, 1994, the common pleas court entered a "Stipulated Dismissal and Judgment Entry" which approved a "Stock and Asset Purchase and Sale Agreement" between the parties and adopted it by reference into the entry. The common pleas court dismissed the action without prejudice and "with a right to be revived and refiled * * * as set forth in the Agreement," with the court retaining jurisdiction "to effectuate the terms of the Agreement of the parties and of this judgment." The terms of the agreement were to remain confidential until further order of the court. According to appellants, the agreement is no longer confidential, and the agreement is contained in the record on appeal.

The agreement provided that in exchange for the sale to Charles L. Jones and Phillip C. Jones by appellants of two-hundred and fifty shares of common stock in J & B Tomato, Inc. and appellants' ownership interest in land and equipment used by the corporation and "subject to the performance of certain additional provisions," Charles L. Jones and Phillip C. Jones agreed to pay $2,200,000 plus interest in yearly installments from 1994 through 2000. The agreement set forth remedies to appellants for a default by the purchasers of reinstatement and revival of the derivative suit or institution of an action against the purchasers to recover the entire unpaid balance plus accrued interest. The agreement further provided that in the event of default, the party not in default can "elect to pursue any or all remedies at law or in equity."

Appellants subsequently filed a motion in the common pleas court for an order authorizing and directing appellee Shirley J. Missig, clerk of the common pleas court, to examine and reseal the agreement and to issue, file, docket and index a certificate of judgment in substantially the form outlined in an attached praecipe. The praecipe contained a certificate of judgment in favor of appellants and against Charles L. Jones and Phillip C. Jones in the amount of $2,200,000 plus interest, with the installment amounts and due dates delineated.

On June 14, 1994, the common pleas court issued an order which provided:

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Clerk of the Ottawa County Court of Common Pleas is hereby authorized and directed: (1) to examine and then reseal the Buyout Agreement (currently filed under seal), which agreement is incorporated into this Court's judgment dated March 29, 1994; and (2) forthwith to issue, file, docket and index a Certificate of Judgment of the courts [sic ] judgment dated March 29, 1994."

The common pleas court used the form of the proposed order tendered by appellants, but altered the language of the last sentence so that it did not order Missig to issue, file, docket and index a certificate of judgment "in substantially the form outlined in the Praecipe * * *." On June 15, 1994, Missig issued a certificate of judgment in favor of appellants and against Charles L. Jones and Phillip C. Jones for $2,200,000 plus interest in the designated installments. The certificate of judgment substantially incorporated the outline set forth in the praecipe.

Charles L. Jones and Phillip C. Jones later advised Missig that no money judgment had been entered by the common pleas court and requested her to correct the certificate of judgment. Missig requested an opinion from Ottawa County Prosecuting Attorney Lowell S. Petersen concerning the dispute. The prosecuting attorney concluded that the common pleas court did not grant a money judgment and that there could not be a certificate of judgment setting forth the "amount of the judgment and costs" as required by R.C. 2329.02. The prosecuting attorney therefore advised Missig to cancel the certificate of judgment. On July 25, 1994, Missig stamped the certificate of judgment she had previously issued with "LIEN CANCELLED," and wrote on the certificate "issued in error" and "See Attached Letter," which was the letter containing the prosecuting attorney's opinion.

On July 27, 1994, appellants filed a complaint in the Court of Appeals for Ottawa County seeking a writ of mandamus compelling Missig to strike from the certificate of judgment or otherwise physically remove and void her "issued in error," "See Attached Letter," and "LIEN CANCELLED" markings and reinstate the June 15, 1994 certificate of judgment. After allowing Charles L. Jones and Phillip C. Jones to intervene as respondents in the action and conducting a non-evidentiary hearing, the court of appeals entered judgment on August 11, 1994, ordering its clerk to issue a writ of mandamus ordering Missig "to issue a certificate of judgment pursuant to the existing June 14, 1994 order of the Ottawa County Court of Common Pleas."

On August 15, 1994, Missig issued a certificate of judgment in which she certified "that on March 29, 1994, a Judgment was entered * * * dismissing without prejudice and with the right at plaintiff's option to be revived and refiled upon the occurrence of certain conditions, any and all claims asserted by Paul L. Bitter and Sandra Bitter * * * against Charles L. Jones * * * and Phillip C. Jones * * * pursuant to the terms of a certain Stock and Asset Purchase and Sale Agreement as approved by and adopted by reference into the judgment entered in * * * Case No. 92CVH-133 * * *."

On August 17, 1994, appellants filed a motion in the court of appeals (1) for an order requiring Missig to show cause why she should not be held in contempt for her refusal to comply with the court of appeals' August 11, 1994 judgment, and (2) to enforce the court of appeals' writ of mandamus. On August 19, 1994, the court of appeals overruled appellants' motion.

On August 22, 1994, Missig, in her capacity as clerk of the court of appeals, issued a writ pursuant to the court of appeals' judgment entry, commanding herself in her capacity as clerk of the common pleas court to issue the certificate of judgment, as set forth in the trial court's June 14, 1994 order. Appellants filed a second motion for a show cause order and to enforce the writ of mandamus, which the court of appeals also denied.

The cause is before this court upon appellants' appeal as of right from the judgments overruling their motions for a show cause order and enforcement of the writ of mandamus.

Fuller & Henry, Stephen B. Mosier and Daniel T. Ellis, Toledo, for appellants.

Spengler Nathanson, and Theodore M. Rowen, Toledo, for appellee Shirley Missig.

Eastman & Smith, James F. Nooney and Stuart J. Goldberg, Toledo, for appellees Charles L. Jones and Phillip C. Jones.

PER CURIAM.

Appellants assert in their sole proposition of law that the court of appeals abused its discretion by refusing to enforce or compel compliance with its writ of mandamus. The court of appeals possesses both inherent and statutory authority to compel compliance with its lawfully issued orders. Cramer v. Petrie (1994), 70 Ohio St.3d 131, 133-134, 637 N.E.2d 882, 884-885; State ex rel. Johnson v. Perry County Court (1986), 25 Ohio St.3d 53, 54, 25 OBR 77, 78, 495 N.E.2d 16, 18; R.C. 2705.02(A) (person who disobeys a lawful writ may be found guilty of contempt).

Courts may punish disobedience of their orders or enforce them in contempt proceedings. State ex rel. Adkins v. Sobb (1988), 39 Ohio St.3d 34, 35, 528 N.E.2d 1247, 1248; State ex rel. Shoop v. Mitrovich (1983), 4 Ohio St.3d 220, 221, 4 OBR 575, 576, 448 N.E.2d 800, 801. "[S]ince the primary interest involved in a contempt proceeding is the authority and proper functioning of the court, great reliance should be placed upon the discretion of the [c...