State ex rel. State Fire Marshal v. Curl
Citation | 722 NE 2d 73,87 Ohio St.3d 568 |
Decision Date | 26 January 2000 |
Docket Number | No. 99-1344.,99-1344. |
Parties | THE STATE EX REL. STATE FIRE MARSHAL v. CURL, JUDGE, ET AL. |
Court | United States State Supreme Court of Ohio |
Betty D. Montgomery, Attorney General, and Barbara A. Serve, Assistant Attorney General, for relator.
Tom C. Elkin, Morrow County Assistant Prosecuting Attorney, for respondent.
Kegler, Brown, Hill & Ritter and Donald W. Gregory, for intervening respondents.
The State Fire Marshal asserts that he is entitled to the requested extraordinary relief in prohibition and mandamus. If a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition and mandamus will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions. See State ex rel. Dannaher v. Crawford (1997), 78 Ohio St.3d 391, 393, 678 N.E.2d 549, 552.
Once an appeal is taken, the trial court is divested of jurisdiction except "over issues not inconsistent with that of the appellate court to review, affirm, modify or reverse the appealed judgment, such as the collateral issues like contempt * * *." State ex rel. Special Prosecutors v. Judges, Court of Common Pleas (1978), 55 Ohio St.2d 94, 97, 9 O.O.3d 88, 90, 378 N.E.2d 162, 165; Haller v. Borror (1995), 107 Ohio App.3d 432, 436, 669 N.E.2d 17, 19.
A trial court, however, lacks jurisdiction to execute a judgment or contempt proceedings regarding the judgment if there is a stay of the judgment pending appeal. In re Kessler (1993), 90 Ohio App.3d 231, 236, 628 N.E.2d 153, 156; see, also, Oatey v. Oatey (1992), 83 Ohio App.3d 251, 257, 614 N.E.2d 1054, 1058, where the court of appeals held that "[t]he mere filing of a notice of appeal from the order * * * does not divest the * * * court of jurisdiction to enforce an interlocutory or final order pending appeal unless the party is granted a stay of execution of the order." (Emphasis added.) See Dandino v. Finkbeiner (Oct. 27, 1995), Lucas App. No. 95-030, unreported, 1995 WL 628222.
As the State Fire Marshal correctly contends, he was entitled to a stay of the judgment as a matter of right pursuant to Civ.R. 62(B) and (C), which provide:
After construing Civ.R. 62(B) and (C) in pari materia,1 cf. State ex rel. Watkins v. Eighth Dist. Court of Appeals (1998), 82 Ohio St.3d 532, 535, 696 N.E.2d 1079, 1083, we find that the State Fire Marshal was manifestly entitled to a stay of Judge Curl's judgment pending his appeal. In State ex rel. Ocasek v. Riley (1978), 54 Ohio St.2d 488, 8 O.O.3d 466, 377 N.E.2d 792, we granted a writ of prohibition to prevent a trial court from proceeding with an evidentiary hearing and ancillary proceedings on the motion of several government officers for a stay pending their appeal in a civil case. We expressly and unanimously held 54 Ohio St.2d at 490,8 O.O.3d at 467,377 N.E.2d at 793.
In this regard, the Ohio Rules of Civil Procedure, including Civ.R. 62, were patterned after the Federal Rules of Civil Procedure. See Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 101, 529 N.E.2d 449, 462. Fed.R.Civ.P. 62(d) and (e) contain the following language, which in pertinent part mirrors Civ.R. 62(B) and (C):
Our interpretation of Civ.R. 62(B) and (C) in Ocasek comports with the interpretation of the similarly worded Fed.R.Civ.P. 62(d) and (e) by the leading treatises and a majority of federal courts. See, generally, 11 Wright, Miller & Kane, Federal Practice and Procedure (2 Ed.1995) 520, Section 2905 () (Emphasis added.); Hoban v. Washington Metro. Area Transit Auth. (C.A.D.C. 1988), 841 F.2d 1157, 1159, at fn. 6, quoting 7 Moore & Lucas, Moore's Federal Practice (2 Ed.1985) 62-36, Section 62.07 () (Emphasis added.); see, also, Becker v. United States (1981), 451 U.S. 1306, 1308, 101 S.Ct. 3161, 3162, 68 L.Ed.2d 828, 831 (Rehnquist, C.J., as Circuit Justice), referring to the automatic stay provisions of Fed.R.Civ.P. 62(d); Am. Mfrs. Mut. Ins. Co. v. Am. Broadcasting-Paramount Theatres, Inc. (1966), 87 S.Ct. 1, 17 L.Ed.2d 37 (Harlan, J., as Circuit Justice), referring to a stay pending appeal as a matter of right; Lightfoot v. Walker (C.A.7, 1986), 797 F.2d 505, 507 ( ); In re Pansier (Bankr.Ct., E.D.Wis.1997) 212 B.R. 950, 952 ().
For example, in Hoban, supra, at 1159, the United States Court of Appeals for the District of Columbia applied the similarly worded D.C. Superior Court Rule 62 provisions to hold, as we do here, that the governmental entity appealing the civil judgment was entitled to a stay pending appeal as a matter of right without posting a supersedeas bond:
Ohio treatises concur in the foregoing result. See McCormac, Ohio Civil Rules Practice (2 Ed.1992) 385, Section 13.33; Klein & Darling, Civil Practice (1997) 722, Section 62-3 () ; Whiteside, Ohio Appellate Practice (1999) 27, Section 1.19 () .
Therefore, our conclusion that the State Fire Marshal was entitled to a stay as a matter of right pending his appeal is supported by precedent, the views of state and federal experts in the field, as well as federal courts construing similarly worded rules of civil procedure.
Further, Ocasek is indistinguishable from the instant case, and for the reasons previously set forth, it should not be overruled. Ocasek has remained the law in this state for over twenty-one years without any successful challenge to its holding, and Ohio courts have cited and relied on Ocasek throughout that period. See, e.g., Kelm v. Hess (1983), 8 Ohio App.3d 448, 8 OBR 572, 573, 457 N.E.2d 911, 912
; State ex rel. Gallia Cty. Bd. of Mental Retardation & Dev. Disabilities v. Gallia Cty. Bd. of Commrs. (Feb. 11, 1985), Gallia App. No. 84CA2, unreported, 1985 WL 6535; Olen Corp. v. Franklin Cty. Bd. of Elections (1988), 43 Ohio App.3d 189, 198, 541 N.E.2d 80, 88; In re Liquidation of Valleywood S. & L. Assn. (1989), 60 Ohio App.3d 64, 65, ...
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