State ex rel. Danziger v. Yarbrough

871 N.E.2d 593, 114 Ohio St. 3d 261

• Court: Ohio Supreme Court
• Decided: August 22, 2007
• Docket: No. 2007-0123
• Status: Published

Opinions

Per Curiam.

{¶ 1} This is an appeal from a judgment denying a writ of prohibition to prevent a common pleas court from hearing additional evidence and proceeding contrary to a mandate of this court. Because the common pleas court did not disregard our mandate, we affirm.

{¶ 2} Appellants, Jared, Nathan, and Samuel Danziger, own stock in Croghan Bancshares, Inc. (“the company”), which is the sole shareholder of Croghan Colonial Bank (“the bank”). The bank is the company’s only operating asset.

{¶ 3} In February 2001, the Danzigers sent a letter to the company demanding to review the corporate minutes of both the company and the bank. When the company did not respond, the Danzigers commenced an action in the Sandusky County Court of Common Pleas to inspect the company’s and the bank’s corporate minutes. The company later notified the Danzigers that it would permit them to inspect the company’s corporate minutes, but it would not permit them to inspect the bank’s corporate minutes because the Danzigers were not shareholders of the bank. The trial court granted the company’s motion for summary judgment based on its contention that the Danzigers did not have a right to examine the bank’s minutes. The court of appeals affirmed the judgment of the trial court.

{¶ 4} On appeal, we reversed the judgment of the court of appeals and held that “[shareholders have a right at common law to inspect the records of a wholly owned subsidiary of the corporation in which they own stock when the parent corporation so controls and dominates the subsidiary that the separate corporate existence of the subsidiary should be disregarded.” Danziger v. Luse, 103 Ohio St.3d 337, 2004-Ohio-5227, 815 N.E.2d 658, syllabus.

{¶ 5} On remand to the common pleas court, appellee, Judge Stephen A. Yarbrough, denied the Danzigers’ motion for an amended final judgment in their favor based on our decision in Danziger, 103 Ohio St.3d 337, 2004-Ohio-5227, 815 N.E.2d 658. Judge Yarbrough concluded that “there are remaining issues that have not been resolved that require additional evidence.” According to the company and the bank, these unresolved issues include the scope of any inspection, e.g., whether privileged portions of the requested records are subject to inspection.

{¶ 6} In August 2006, the Danzigers filed a petition in the Court of Appeals for Sandusky County for a writ of prohibition to prevent Judge Yarbrough from proceeding in the underlying case contrary to our mandate in Danziger. Judge Yarbrough submitted an answer, and in December 2006, the court of appeals denied the writ.

{¶ 7} In their appeal as of right, the Danzigers assert that the court of appeals erred in denying the writ of prohibition.

{¶ 8} A writ of prohibition is appropriate to require a lower court to comply with and not proceed contrary to the mandate of a higher court. State ex rel. United Auto., Aerospace & Agricultural Implement Workers of Am. v. Bur. of Workers’ Comp., 108 Ohio St.3d 432, 2006-Ohio-1327, 844 N.E.2d 335, ¶ 35; State ex rel. Frailey v. Wolfe (2001), 92 Ohio St.3d 320, 321, 750 N.E.2d 164.

{¶ 9} Judge Yarbrough is not acting contrary to our mandate in Danziger. Nothing in Danziger precludes the judge from considering additional evidence on issues not resolved by our decision. We did not enter a final judgment in favor of the Danzigers and did not order the common pleas court to do so.

{¶ 10} Moreover, in the absence of a patent and unambiguous disregard of our mandate in Danziger, the Danzigers have adequate remedies by appeal and by motion for contempt to challenge Judge Yarbrough’s rulings on remand. Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶ 14.

{¶ 11} Based on the foregoing, the court of appeals did not err by denying the writ of prohibition. Therefore, we affirm the judgment of the court of appeals.¹

Judgment affirmed.

Moyer, C.J., O’Connor, O’Donnell and Cupp, JJ., concur. Pfeifer, Lundberg Stratton and Lanzinger, JJ., dissent.

1 . Consistent with our opinion herein, the Danzigers’ request for oral argument is denied.