State v. Yee

• Decision Date: 15 December 1989
• Docket Number: No. E-89-33,E-89-33
• Citation: 563 N.E.2d 54,55 Ohio App.3d 88
• Parties: The STATE of Ohio, Appellant, v. YEE, Appellee.
• Court: Ohio Court of Appeals

Page 88

55 Ohio App.3d 88

563 N.E.2d 54

The STATE of Ohio, Appellant, v. YEE, Appellee.

No. E-89-33.

Court of Appeals of Ohio, Sixth District, Erie County.

Dec. 15, 1989.

Syllabus by the Court

An order denying the prosecution's motion for continuance, which motion was filed on the basis that the defendant was unavailable for trial due to a federal case pending against him, is not a final, appealable order.

Kevin J. Baxter, Pro. Atty., and Ronald R. Smith, for appellant.

K. Ronald Bailey, for appellee.

HANDWORK, Presiding Judge.

This matter is before the court sua sponte.

Appellee, Steven W. Yee, was indicted by a special federal grand jury sitting in Cleveland on several counts for the commission of federal crimes on March 3, 1989, and was subsequently arrested by the FBI. Thereafter, appellee was charged with six counts of aggravated murder, murder, kidnapping, and aggravated robbery in Erie County. The Erie County Court of Common Pleas set trial for August 9, 1989, denying the prosecution's motion for a continuance, stating that an order from this appellate court was necessary to establish that appellee was unavailable for trial due to the pending federal case.

On August 7, 1989, appellant, state of Ohio, sought leave of this court to file a notice of appeal from the denial of the continuance. ¹

We granted appellant's motion due to the fact that the trial court expressly intended to proceed with appellee's trial on August 9, 1989, even though it did not have jurisdiction to do so under Ponzi v. Fessenden (1922), 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607. ² Upon a review of Ohio law, however, we find that the granting or denial of a motion for continuance or stay of proceeding is not a final, appealable order. See General Elec. Supply Co. v. Warden Elec., Inc. (1988), 38 Ohio St.3d 378, 528 N.E.2d 195, syllabus; Milo v. Milo (1984), 9 Ohio St.3d 115, 9 OBR 341, 459 N.E.2d 519; In re Application for Constr. of New Union Depot (1953), 160 Ohio St. 173, 51 O.O. 413, 115 N.E.2d 4; Pewter Mug, Inc. v. M.U.G. Ent., Inc. (1975), 46 Ohio App.2d 93, 75 O.O.2d 78, 345 N.E.2d 426; and Points v. Saker (Mar. 29, 1988), Franklin App. No. 86AP-1085, unreported, 1988 WL 37457.

The aforementioned cases generally hold that such an order is not final and appealable because the requirements of R.C. 2505.02 have not been satisfied. In the Pewter Mug case, the court held that an order refusing to stay proceedings pending arbitration did not determine the action or prevent a judgment. The court found that there was a great likelihood that a later appeal on the merits would occur and that the issues could be resolved by one appeal at the end of the case. Pewter Mug, supra 46 Ohio App.2d at 95, 75 O.O.2d at 79, 345 N.E.2d at 428. The court relied on an earlier arbitration case, Addyston Village School Dist. Bd. of Edn. v. Nolte-Tillar Bros. Constr. Co. (1946), 79 Ohio App. 193, 198, 34 O.O. 530, 532-533, 71 N.E.2d 311, 313, wherein the issue had been reviewed under G.C. Section 12223-2, the predecessor to R.C. 2505.02, in light of the holdings of the Supreme Court of the United States in a similar case and under a similar United States statute.

The General Electric case also involved the issue of a stay of proceedings pending arbitration. The Supreme Court of Ohio followed the reasoning in Pewter Mug and found that an appeal after the final judgment was rendered was more practical and would not prejudice the complaining party. General Electric, supra, 38 Ohio St.3d at 381, 528 N.E.2d at 198. If the entire case is ordered to be submitted to arbitration, however, the award of granting a stay of proceedings is a final, appealable order. Systems Constr., Inc. v. Worthington Forest Ltd. (1975), 46 Ohio App.2d 95, 75 O.O.2d 79, 345 N.E.2d 428. Cf. Bellaire City Schools Bd. of Edn. v. Paxton (1979), 59 Ohio St.2d 65, 13 O.O.3d 58, 391 N.E.2d 1021, syllabus.

In the Milo case, the Supreme Court of Ohio held that an order staying a civil case while a related criminal case was being reviewed by an appellate court was not a final, appealable order. Again, the court found that the order did not affect a substantial right, determine the action, or prevent a judgment. Milo, supra, 9 Ohio St.3d at 116, 9 OBR at 342, 459 N.E.2d at 521.

The New Union Depot case involved an appeal from the Public Utilities Commission's refusal to continue a hearing before it regarding the construction of a new union depot. With no analysis whatsoever, the court held that the appeal was taken from an order which was not final and appealable. New Union Depot, supra.

Finally, in the Points case, the court avoided the issue of whether a denial of a motion for a continuance was proper by finding it moot because the entire case had been dismissed with prejudice. However, the court noted in passing that generally such orders are not final and appealable, citing no authority. Points, supra.

There is, however, a line of cases which hold that the granting or denial of the motion for a continuance is a final, appealable order if an abuse of discretion is shown. See Aero-Lite Window Co. v. Jackson (1962), 115 Ohio App. 257, 20 O.O.2d 327, 184 N.E.2d 677; Leiberg v. Vitangeli (1942), 70 Ohio App. 479, 25 O.O. 211, 47 N.E.2d 235.

Both of the aforementioned cases rely on Norton v. Norton (1924), 111 Ohio St. 262, 145 N.E. 253, paragraph two of the syllabus. The Norton case involved the review of the denial of a motion for a continuance in a divorce alimony action. When the wife sought temporary alimony after the husband filed for divorce, the husband moved for a continuance. The motion was denied and the court proceeded with the hearing and granted the wife temporary alimony. The order was modified a short time later to increase the amount of the award. The husband sought an immediate appeal. When the Supreme Court reviewed the case, it found that the granting or denial of a motion for a continuance is a matter within the sound discretion of the trial court and will be reversed only upon a showing of an abuse of discretion. Id. at 266, 145 N.E. at 255. The court found no abuse of discretion because the wife would have been without financial support during the time the hearing was suspended. Id. at 266-267, 145 N.E. at 255. Both the Aero-Lite and Leiberg cases hold, therefore, that the granting or denial of a motion for a continuance is a final, appealable order if an abuse of discretion is shown.

We are unable to distinguish the Norton line of cases from those which held that the granting or denial of a motion for a continuance is not a final,...