State, ex rel. Pizza v. Rayford, 90-2068
| Decision Date | 08 January 1992 |
| Docket Number | No. 90-2068,90-2068 |
| Citation | 62 Ohio St.3d 382,582 N.E.2d 992 |
| Parties | The STATE, ex rel. PIZZA, Pros. Atty., Appellant, v. RAYFORD, Appellee. |
| Court | Ohio Supreme Court |
On April 3, 1989, appellant state of Ohio, through relator Anthony G. Pizza, Prosecuting Attorney of Lucas County, filed a civil complaint under the state nuisance abatement law, R.C. Chapter 3767, to close premises located at 731 Hoag Street, Toledo, Ohio. In the complaint, the state alleged that the premises, owned by Henry E. Rayford, Sr., appellee herein, had been used for the purposes of felony drug violations and was thus a public nuisance. Other than filing an answer, at no time during the proceedings that followed did Rayford directly contest the allegations in the complaint.
On the day the complaint was filed, appellant separately moved the court, pursuant to R.C. 3767.04 and Civ.R. 65, for a temporary restraining order ("TRO") and a preliminary injunction, seeking to have the premises padlocked until the court took further action on the complaint. The court granted the state's ex parte motion for a TRO on the same day and ordered the premises closed and padlocked pending a final decision on the preliminary injunction motion and the complaint seeking a permanent injunction.
On April 17, 1989, the court held an evidentiary hearing on the application for the preliminary injunction at which Rayford appeared pro se. After the hearing, the court ordered the premises closed and padlocked pending the resolution of the complaint. The court then ordered the case continued until June 12, 1989, at which time appellee requested a continuance in order to obtain counsel. Counsel for Rayford subsequently entered an appearance and requested a further continuance, which the court granted until June 26, 1989. The hearing was again rescheduled for July 7, 1989.
On June 26, 1989, Rayford's counsel moved to dissolve the preliminary injunction. Rayford argued that the court had violated R.C. 3767.04 by failing to hold the preliminary injunction hearing within ten days of the filing of the complaint, and thus the court had been without jurisdiction to hear the evidence presented at the April 17, 1989 hearing. Rayford asserted that because the court had been without jurisdiction to hear the evidence at the preliminary injunction hearing, the court was precluded at the permanent injunction stage from relying upon that evidence to reach a decision on the merits of the nuisance abatement action. Rayford further contended that he was entitled to a new evidentiary hearing on the merits of the preliminary injunction motion and urged the court to strike the evidence from the prior preliminary injunction hearing.
On July 7, 1989, the trial court heard argument by counsel on Rayford's motion to dissolve the preliminary injunction and on the underlying complaint. At this hearing, Rayford elected not to introduce any evidence on his behalf, and appellant elected to proceed solely upon the evidence adduced at the April 17, 1989 hearing.
The court denied Rayford's motion to dissolve the preliminary injunction, implicitly ruling that the April 17, 1989 hearing was proper. Finding the complaint to be well taken, the court then ordered the premises closed and padlocked for a period of not less than one year.
Rayford timely appealed, and the court of appeals reversed, holding that the original hearing was not timely, and that the court did not have jurisdiction to hear the evidence presented on April 17, 1989. The appeals court concluded that the trial court improperly relied upon the evidence presented outside its jurisdiction in ruling upon the complaint.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Anthony G. Pizza, Pros. Atty., Steven J. Papadimos and Mark E. Lupe, Toledo, for appellant.
Arnold N. Gottlieb, Toledo, for appellee.
Does the failure of a court of common pleas, in contravention of R.C. 3767.04, to hold a preliminary injunction 1 hearing in a nuisance abatement action within ten days of plaintiff's application for the same result in reversible error? For the reasons that follow, we answer that question in the negative, reverse the decision of the court of appeals, and reinstate the judgment below.
R.C. 3767.04 is directed, in part, to the time frame in which a court in a nuisance action must hold a hearing on an application for a preliminary injunction to abate the nuisance until a full hearing on the underlying complaint. The relevant portion of the statute requires the court to hold a hearing "within ten days after the filing" of the application for a preliminary injunction. 2 In this action, it is clear that the trial court failed to meet that statutory standard.
In spite of the plain language in the statute, appellant urges us to hold that Civ.R. 65, not the statute, controls the time by which the court must act. Appellant argues that the expiration of the temporary restraining order, not the statutory ten-day period, was the critical point by which the court was required to hold the hearing, and that because the court held the hearing prior to the expiration of the TRO, the court did not err. We decline to adopt that reasoning.
Appellant confuses the relationship between two entirely independent forms of relief, namely the preliminary injunction and the ex parte TRO. Although the statute suggests that an application for a preliminary injunction is a prerequisite to the issuance of an ex parte TRO preventing interference with the property alleged to be a nuisance, the date upon which the preliminary injunction hearing must be set is wholly separate from the expiration of the TRO. Moreover, because a petitioner is not required to apply for a TRO, the duration of such an order could not possibly serve as a benchmark by which the hearing date on a motion for a preliminary injunction should be set.
Although it is clear that the trial court erred in failing to hold a hearing within ten days of the application for the preliminary injunction as directed by the statute, we nevertheless conclude it did retain jurisdiction over the hearing that it held four days later. Once a tribunal has jurisdiction over both the subject matter of an action and the parties to it, " * * * the right to hear and determine is perfect; and the decision of every question thereafter arising is but the exercise of the jurisdiction thus conferred * * *." Sheldon's Lessee v. Newton (1854), 3 Ohio St. 494, 499. Accord Weinberger v. Weinberger (1974), 43 Ohio App.2d 129, 131, 72 O.O.2d 325, 326, 334 N.E.2d 514, 516. As several courts in this state have recently held, the mere failure of an adjudicatory body to comply with a statutory time limit does not, as a general rule, divest it of its jurisdiction. See, e.g., In re Appeal of Gardner (1987), 40 Ohio App.3d 99, 531 N.E.2d 741 (); State, ex rel. Pontiac Motor Div., General Motors Corp., v. Motor Vehicle Dealers Bd. (Nov. 29, 1984), Franklin App. No. 84AP-550, unreported, 1984 WL 6009 (...
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