State v. Shaughnessy, 107403

• Decision Date: 27 November 2018
• Docket Number: No. 107403,107403
• Citation: 2018 Ohio 4797
• Parties: STATE OF OHIO, EX REL. CITY OF CLEVELAND RELATOR v. THE HONORABLE MICHAEL P. SHAUGHNESSY RESPONDENT
• Court: Ohio Court of Appeals

2018 Ohio 4797

STATE OF OHIO, EX REL. CITY OF CLEVELAND RELATOR v. THE HONORABLE MICHAEL P. SHAUGHNESSY RESPONDENT

No. 107403

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

November 27, 2018

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT GRANTED

Writ of Mandamus

Motion No. 520422

Order No. 522384

ATTORNEYS FOR RELATOR

For City of Cleveland

Karl A. Bekeny

Susan M. Audey

Robert J. Hanna

Tucker Ellis LLP

950 Main Avenue, Suite 1100

Cleveland, Ohio 44113

Barbara A. Langhenry

Director of Law, City of Cleveland

601 Lakeside Avenue, Room 106

Cleveland, Ohio 44114

ATTORNEYS FOR RESPONDENT

Michael C. O'Malley

Cuyahoga County Prosecutor

By: Charles E. Hannan

Assistant County Prosecutor

The Justice Center, 8th Floor

1200 Ontario Street

Cleveland, Ohio 44113

MARY EILEEN KILBANE, P.J.:

{¶1} Relator, the city of Cleveland ("Cleveland"), seeks a writ of mandamus directing respondent judge to proceed with a hearing mandated by this court as directed in Westlake v. Cleveland, 8th Dist. Cuyahoga No. 104282, 2017-Ohio-4064 ("Westlake I"). We grant a writ of mandamus and direct respondent to hold a hearing to determine what constitutes reasonable notice as directed by this court in the aforementioned appeal.

{¶2} The facts of the underlying dispute between the city of Westlake ("Westlake") and Cleveland can be found in this court's prior opinion. A brief summary of facts from that case follows. Westlake and Cleveland entered into a contract for the provision of municipal water from Cleveland to Westlake. After the contract was in effect for numerous years, Cleveland alleged Westlake began to explore alternative sources for water. Cleveland then imposed significant cost increases to recover "stranded costs" created by Westlake's purported decision to terminate the agreement. Westlake filed a declaratory judgment action in the Cuyahoga County Common Pleas Court seeking to enjoin Cleveland from imposing cost increases and interpreting the rights of the parties under the agreement. The trial court, on summary judgment, ruled that the contract had terminated by its own terms in 2015, provisions requiring five-year prior notice of intent to terminate were no longer effective, and Cleveland could not recover "stranded costs." Id. at ___ 5.

{¶3} Cleveland appealed. This court reversed the trial court's grant of summary judgment, finding that the contract continued to renew year to year. Id. at ¶ 39. This made the five-year notice of termination provision unenforceable in a year-to-year contract. Id. at ___ 40. This court concluded:

In summary, we conclude that the water service agreement was a non-exclusive agreement for a minimum period of ten years, with annual renewals that constitute new agreements each year. As annual agreements, they do not violate the terms of the Westlake charter that limit the term of non-exclusive franchises to 25 years. With the five-year notice of termination inapplicable to a yearly agreement, a question of fact exists as to how much notice should be provided. Cleveland has no contractual right to enact surcharges to recover stranded costs.

Id. at ___ 53.

{¶4} The trial court, and then this court, determined the rights of the parties under the contract at issue. This court identified a single remaining issue that was a question of fact to be determined, in the first instance, by the factfinder. Therefore, this court remanded the matter to the trial court for that determination.

{¶5} In its verified complaint, Cleveland alleges that on remand, respondent scheduled, among other things, a proceeding to determine what constitutes reasonable notice under the contract. That proceeding commenced on March 27, 2018. A single witness was called out of order to accommodate her schedule. The proceeding was then continued to April 27, 2018. On April 24, 2018, Westlake filed a notice of voluntary dismissal premised on Civ.R. 41(A)(1)(a). Cleveland filed a motion to strike the notice of voluntary dismissal, but respondent ruled that he no longer had jurisdiction to rule on the motion to strike because the notice of voluntary dismissal was effective upon filing.

{¶6} Cleveland then filed the instant mandamus action. Cleveland also filed a notice of appeal challenging the trial court's finding that it lacked jurisdiction to rule on its motion to strike. Respondent filed for summary judgment, which Cleveland opposed.

{¶7} In order for this court to issue a writ of mandamus, Cleveland must clearly establish that: 1) it possesses a clear legal right to the requested relief, 2) respondent possesses a clear legal duty to perform the requested relief, and 3) there exists no other adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ___ 6. Cleveland must prove these elements by clear and convincing evidence. Id. at ___ 13.

{¶8} Cleveland can establish a clear legal right to the requested relief and a clear legal duty on the part of respondent judge by establishing that the lower court has failed to comply with a mandate of a superior court. See State ex rel. Frailey v. Wolfe, 92 Ohio St.3d 320, 321, 750 N.E.2d 164 (2001), citing Berthelot v. Dezso, 86 Ohio St.3d 257, 259, 714 N.E.2d 888 (1999) (stating that a writ of mandamus is the appropriate vehicle to compel a lower court to comply with a mandate issued by a superior court).

{¶9} Further, an appeal is an inadequate remedy at law when the above is established. State ex rel. Heck v. Kessler, 72 Ohio St.3d 98, 100-102, 647 N.E.2d 792 (1995). In Heck, the Supreme Court of Ohio explained, "[t]o hold otherwise might lead to the result of a lower court perpetually refusing a superior court's mandate, necessitating repeated, ineffective appeals." Id. at 102. As quoted approvingly by the Heck court, the United States Supreme Court has held:

"When a case has been once decided by this court on appeal, and remanded to the Circuit Court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The Circuit Court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. That court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded. * * * If the Circuit Court mistakes or misconstrues the decree of this court, and does not give full effect to the mandate, its action may be controlled, either upon a new appeal (if involving a sufficient amount) or by a writ of mandamus to execute the mandate of this court. * * * But the Circuit Court may consider and decide any matters left open by the mandate of this court; and its decision of such matters can be reviewed by a new appeal only. * * * The opinion delivered by this court, at the time of rendering its decree, may be consulted to ascertain what was intended by its mandate; and, either upon an application for a writ of mandamus, or upon a new appeal, it is for this court to construe its own mandate, and to act accordingly."

Id. at 101, quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 255-256, 16 S.Ct. 291, 40 L.Ed.414 (1978). Therefore, whether the appeal filed by Cleveland from the denial of its motion to strike Westlake's notice of voluntary dismissal constitutes an adequate remedy at law is immaterial if Cleveland can show that respondent has ignored a clear mandate from this court.

{¶10} This court determined that a single question of fact remained outstanding in the underlying case between Cleveland and Westlake — what constituted reasonable notice under the terms of the contract given that it continued to renew on a year-to-year basis. Westlake I at ___ 54. This court's decision remanded the case for a hearing on that matter.

{¶11} Cleveland argues this is a clear mandate from this court directing respondent to determine that issue. Respondent claims the opinion did not remand for a hearing because the language used in the final paragraph of the opinion was indefinite, i.e., "reversed and remanded for proceedings consistent with this opinion." Now reading the opinion as a whole, the mandate from this court is clear. All the rights and responsibilities of the parties have been construed under the contract except what constituted reasonable notice, and only because that is a question of fact that must be resolved by the trier of fact. Westlake I at ___ 41, citing Davis v. Loopco Indus., Inc., 66 Ohio St.3d 64, 66, 1993- Ohio-195, 609 N.E.2d 144. As a result, a determination on that matter is required.

{¶12} Respondent argues it was not he who has disregarded a mandate from this court, but through Westlake's actions, he was deprived of jurisdiction to proceed. He asserts that the notice of voluntary dismissal deprived him of jurisdiction to conduct the mandated hearing.

{¶13} Civ.R. 41(A)(1)(a) provides a plaintiff with a unilateral means of dismissing an action. It states, subject to other civil rules, that a plaintiff, "without order of court, may dismiss all claims asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by that defendant[.]" The filing of a valid notice of voluntary dismissal is effective on filing, and deprives the court of further jurisdiction to act. Rini v. Rini, 8th Dist. Cuyahoga No. 80225, 2002-Ohio-6480, ¶ 11.

{¶14} The Ohio Supreme Court has determined that "'a civil trial commences when the jury is empaneled and sworn, or, in a bench trial, at opening statements.'" Schwering v. TRW Vehicle Safety Sys., 132 Ohio St.3d 129, 2012-Ohio-1481, 970 N.E.2d 865, ¶ 16, quoting Frazee v. Ellis Bros. Inc., 113 Ohio App.3d 828, 831, 682 N.E.2d 676 (5th Dist.1996). At least one other court...