The State ex rel. State Fire Marshal v. Curl, Judge, et al., 87 Ohio St. 3d 568

Per Curiam. 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: “(

B) Stay upon appeal. When an appeal is taken the appellant may obtain a stay of execution of a judgment or any proceedings to enforce a judgment by giving an adequate supersedeas bond. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court. “(

C) Stay in favor of government. When an appeal is taken by this state or political subdivision, or administrative agency of either, or by any officer thereof acting in his representative capacity and the operation or enforcement of the judgment is stayed, no bond, obligation or other security shall be required from the appellant.” After construing Civ.R. 62(

B) and (

C) in pari materia, 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: “Pursuant to [Civ.R. 62], defendants-appellants are entitled to a stay of the judgment as a matter of right. The lone requirement of Civ.R. 62(

B) is the giving of an adequate supersedeas bond. Civ.R. 62(

C) makes this requirement unnecessary in this case, and respondent has no discretion to deny the stay. Therefore, the evidentiary hearing on the stay and the related depositions are inappropriate proceedings.” 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): “(

d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (

a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court. “(

e) Stay in Favor of the United States or Agency Thereof. When an appeal is taken by the United States or an officer or agency thereof or by direction of any department of the Government of the United States and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant.” 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 (“The stay [pending appeal] issues as a matter of right in cases within Rule 62[d], and is effective when the supersedeas is approved by the court. Under Rule 62[e], no supersedeas bond is required on appeals on behalf of the United States.”) (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 (“ ‘When an appeal is taken by the United States or an officer or agency thereof or by the direction of any department of the Government of the United States’ and a stay is authorized under other subdivisions of Rule 62, the United States is entitled to a stay without the necessity of giving bond, obligation or security.”) (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 (“Rule 62[e] * * * entitles the federal government [and its departments, agencies and officers] to a stay of execution pending appeal, without its having to post bond or other security * * *.); In re Pansier (Bankr.Ct., E.D.Wis.1997) 212 B.R. 950, 952 (“[B]y virtue of Rule 62[d] and [e], Fed.R.Civ.P., the IRS is entitled, as a matter of law, to a stay pending appeal.”).

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: “This rule clearly exempts Washington] Metropolitan] A[rea] T[ransit] Authority] from posting a bond when a judgment is stayed. Literally read, however, it does not entitle WMATA to a stay as a matter of right. Rather, one must read Superior Court Rule 62(

e) in tandem with Superior Court Rule 62(d), to determine whether WMATA is entitled to a stay as a matter of right. Superior Court Rule 62(

d) grants an automatic stay when a supersedeas bond is posted. * * * Superior Court Rule 62(

e) operates to provide an exception to the bond requirement of Superior Court Rule 62(d). Accordingly, WMATA, as an agency of the District of Columbia, is entitled to a stay 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 (‘When an appeal is taken by a state or political subdivision, an administrative agency of either, or an officer acting in a representative capacity for either, no bond or other security is necessary to make the stay effective. Thus, no hearing is required to determine whether the state is entitled to a stay.”); Whiteside, Ohio Appellate Practice (1999) 27,

Section 1.19 (“Under Civil Rule 62[B] the appellant is entitled to a stay of execution, although the stay becomes effective only after the appropriate supersedeas or appeal bond is posted by appellant and approved by the trial court. The stay is virtually automatic as to governmental agencies, which are exempt from the bond requirement.”). 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, 573 N.E.2d 1193, 1195, fn. 1; Fifth Third Bank v. The Wallace Group, Inc. (Nov. 2, 1994), Hamilton App. No. C-930699, unreported, 1994 WL 603149; Hagood v. Gail (1995), 105 Ohio App.3d 780, 785, 664 N.E.2d 1373, 1376; Hamilton v. Fairfield Twp. (1996), 112 Ohio App.3d 255, 273, 678 N.E.2d 599, 611.

Therefore, pursuant to Ocasek, the State Fire Marshal is entitled to the requested writs because he should have been granted a stay pending his appeal from the trial court’s judgment. No bond was necessary. Civ.R. 62(C). Because the State Fire Marshal was' entitled to a stay of the judgment, Judge Curl patently and unambiguously lacked jurisdiction either to enforce the judgment or to conduct contempt proceedings.

Although a writ of mandamus will generally not issue to control judicial discretion even if that discretion is abused, the writ will lie in certain circumstances where a lower court has no discretion on a matter. See, e.g., State ex rel. Heck v. Kessler (1995), 72 Ohio St.3d 98, 102, 647 N.E.2d 792, 796-797. Here, Judge Curl had no discretion to deny the State Fire Marshal’s motion for a stay. Ocasek, 54 Ohio St.2d at 490, 8 O.O.3d at 467, 377 N.E.2d at 793; see, generally, McCormac, Ohio Civil Rules Practice, at 385,

Section 13.33 (‘Where the government is seeking a stay [in an appeal from a judgment in a civil case], the court has no discretion to deny it.”). Judge Curl did not refute any of the foregoing, including the application of Ocasek to this action, and the intervening respondents do not contend that Ocasek should be overruled. The intervening respondents instead rely upon Dayton City School Dist. Bd. of Edn. v. Dayton Edn. Assn. (1992), 80 Ohio App.3d 758, 610 N.E.2d 615. Dayton City, however, is inapposite because it addresses the power of a court of appeals under Civ.R. 62(

D) and App.R. 7(

A) to grant injunctive relief pending appeal, rather than the duty of a trial court pursuant to Civ.R. 62(

B) and (C). The court of appeals issued no injunction pursuant to Civ.R. 62(

D) and App.R. 7 in the underlying case. Based on the foregoing, the State Fire Marshal is entitled to the requested writs of prohibition and mandamus. Accordingly, we grant the State Fire Marshal a writ of prohibition to prevent Judge Curl from conducting contempt proceedings or attempting to enforce the judgment in the underlying case pending the State Fire Marshal’s appeal of the judgment to the court of appeals, and we grant a writ of mandamus to compel Judge Curl to issue a stay of the judgment pending appeal. Writs granted. Moyer, C.J., F.E. Sweeney, Cook and Lundberg Stratton, JJ., concur.

Douglas, Resnick and Pfeifer, JJ., dissent. . Neither Judge Curl nor the intervening respondents assert that Civ.R. 62(

B) and (

C) should not be construed in pari materia.