State ex rel. A & D Limited Partnership v. Keefe

671 N.E.2d 13, 77 Ohio St. 3d 50
Ohio Supreme Court·Decided November 6, 1996·No. No. 96-784·Published·Cited by 71 cases

Opinion

Per Curiam.

Judge Keefe asserts in his propositions of law that the court of appeals erred in issuing a writ of prohibition preventing him from conducting further proceedings in the underlying action. In order to be entitled to a writ of [52]*52prohibition, appellees must establish (1) that Judge Keefe is about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Lipinski v. Cuyahoga Cty. Court of Common Pleas (1995), 74 Ohio St.3d 19, 20, 655 N.E.2d 1303, 1305. It is uncontroverted here that unless restrained, Judge Keefe would have exercised judicial power by holding a hearing and rendering a decision on the issue of damages on plaintiffs’ negligence claim in Beck. Therefore, the' dispositive issues are whether Judge Keefe’s intended exercise of judicial authority is unauthorized, and if denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law.

Absent a patent and unambiguous lack of jurisdiction, a tribunal having general subject matter jurisdiction of a case possesses authority to determine its own jurisdiction, and a party challenging its jurisdiction has an adequate remedy by appeal from its holding that it has jurisdiction. Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm. (1995), 74 Ohio St.3d 120, 123-124, 656 N.E.2d 684, 688. The court of appeals determined that appellees’ appeal to that court of Judge Keefe’s December 6, 1995 entry granting plaintiffs’ motion for judgment notwithstanding the verdict patently and unambiguously divested Judge Keefe of jurisdiction to conduct further proceedings on damages.

Judge Keefe asserts that the appeal from his entry of December 6,1995 did not divest him of jurisdiction to proceed in the underlying action because that entry granting plaintiffs’ motion for judgment notwithstanding the verdict was not a final appealable order. A reviewing court possesses jurisdiction only to reverse, modify, or affirm a judgment which constitutes a final appealable order. State ex rel. Tollis v. Cuyahoga Cty. Court of Appeals (1988), 40 Ohio St.3d 145, 532 N.E.2d 727. The trial court retains all jurisdiction that is consistent with the reviewing court’s jurisdiction to reverse, modify, or affirm the judgment. Pegan v. Crawmer (1996), 76 Ohio St.3d 97, 102, 666 N.E.2d 1091, 1096; State ex rel. Neff v. Corrigan (1996), 75 Ohio St.3d 12, 15, 661 N.E.2d 170, 174.

Under Section 3(B)(2), Article IV of the Ohio Constitution, courts of appeals have “such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * R.C. 2505.03(A) limits the appellate jurisdiction of courts of appeals to the review of final orders, judgments or decrees. R.C. 2505.02 defines “final order” as “[a]n order that affects a substantial right in an action * * * and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial * * (Emphasis added.)

[53]*53In his first proposition of law, Judge Keefe contends that the December 6,1995 entry was not a final order under R.C. 2505.02 because (1) it merely determined liability and not damages, and (2) he has not completed the task of setting aside the judgment based on the jury verdict until he enters a judgment on the damages issue.

Judge Keefe claims that based on Fireman’s Fund Ins. Cos. v. BPS Co. (1982), 4 Ohio App.3d 3, 4 OBR 23, 446 N.E.2d 181, and Am. Mall, Inc. v. Lima (1966), 8 Ohio App.2d 181, 37 O.O.2d 195, 220 N.E.2d 839, a judgment which determines liability in the plaintiffs favor but defers damages for a subsequent determination does not constitute a final order pursuant to R.C. 2505.02. In Fireman’s Fund, the court of appeals held that where a separate trial on the issue of liability is held, and the issue of liability is determined in the plaintiff’s favor, an entry of judgment by the trial court in plaintiffs favor on the issue of liability which leaves the amount of damages to be awarded unresolved until some future time, does not constitute a final judgment which may then be treated as an appealable order. Fireman’s Fund relied on American Mall and Greeler v. Law (June 13, 1972), Franklin App. No. 72AP-60, unreported, in support of its holding. These latter cases held that the orders determining liability in the plaintiff’s favor and deferring the issue of damages were not final orders under R.C. 2505.02 because they did not determine the action, prevent a judgment, or affect a substantial right in a special proceeding. American Mall, 8 Ohio App.2d at 183, 37 O.O.2d at 196, 220 N.E.2d at 840; Greeler, supra, at 19-21; see, also, Noble v. Colwell (1989), 44 Ohio St.3d 92, 96, 540 N.E.2d 1381, 1384 (“As a general rule, even where the issue of liability has been determined, but a factual adjudication of relief is unresolved, the finding of liability is not a final appealable order even if Rule 54(B) language was employed.”). None of these three cases involved a postjudgment order that “vacates or sets aside a judgment or grants a new trial” as included in R.C. 2505.02’s definition of “final order,” which the court of appeals determined to be applicable here. Therefore, they are inapposite.

Judge Keefe also cites May v. Mauger (1964), 1 Ohio App.2d 238, 30 O.O.2d 262, 204 N.E.2d 412, where the court of appeals held that a journal entry of a trial court in a negligence action entering judgment for the plaintiff notwithstanding the verdict of the jury on the issue of liability and ordering a new trial on the issue of damages was not a final appealable order. The court of appeals in May stated that “[t]he ‘judgment’ as it now stands is in effect an interlocutory order, analogous to the partial or interlocutory judgment as provided in summary judgment matters under Section 2311.041, Revised Code. The trial court determined the issue of negligence, and in effect the matter of proximate cause, although there is the genuine issue.of damages remaining unresolved. As a practical matter the court is obliged to impanel a jury to which it must submit the case. When all issues are resolved a judgment of the court, reciting the [54]*54determination of all of the issues, will be in appealable form.” Id., 1 Ohio App.2d at 241-242, 30 O.O.2d at 264, 204 N.E.2d at 414.

May did not analyze the language of the applicable version of R.C. 2505.02 in reaching its holding. In Mayo v. Hall (Aug. 28,1980), Cuyahoga App. No.

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State ex rel. A & D Limited Partnership v. Keefe, 671 N.E.2d 13, 77 Ohio St. 3d 50 (Ohio 1996).

671 N.E.2d 13 (State ex rel. A & D Limited Partnership v. Keefe) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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