IN THE COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

STATE EX REL. MARK MILLER, : CASE NO. A1801834

:
RELATOR, : Judge Robert P. Ruehlman
:
-v- :
: Respondents’ Memorandum Opposing
COUNCILMEMBER SITTENFELD, : Relator’s Motion to Show Cause, or, in
ET AL., : the alternative, Respondents’ Motion
: for an Automatic Stay
RESPONDENTS. :
:

Relator seeks to have this Court hold Respondents in contempt even though

binding precedent instructs that the opposite is true. Rather than disregard the Court’s

October 23, 2018 Discovery Order, Respondents exercised their right to appeal on

November 1, 2018. And although Relator does not cite a similar case in which a stay was

required, should the Court find that it is, then Respondents move for an automatic stay

of the Order pending appeal pursuant to Rule 62(C).

A. The pending appeal deprives the Court of jurisdiction

Respondents are not in contempt of the Court’s Discovery Order because they

have perfected an appeal of the Discovery Order to the First District. The effect of that

appeal is that the Court is temporarily deprived of jurisdiction over the order.

It is well settled that the common pleas court and the court of appeals
cannot assert jurisdiction simultaneously over matters on appeal. When a
notice of appeal is filed, it confers jurisdiction on the court of appeals and
divests the common pleas court of its control over the aspects of the case
involved in the appeal. Consequently, the trial court retains jurisdiction
over only those issues not directly related to the subject of the appeal.
Thus, the trial court is prohibited from taking any action that is
inconsistent with the appellate court's ability to review, affirm, modify, or
reverse the judgment being appealed.

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Lambda Research v. Jacobs, 170 Ohio App.3d 750, 2007-Ohio-309, ¶ 21; see also State

ex rel. Elec. Classroom of Tomorrow v. Cuyahoga County Court of Common Pleas, 129

Ohio St.3d 30, 2011-Ohio-626, ¶¶ 13, 15 (holding the trial court is divested of

jurisdiction over matters that are inconsistent with the reviewing court’s jurisdiction

even absent a stay). Here, Respondents are appealing the Discovery Order itself. Notice

of Appeal, filed Nov. 1, 2018. Until the case is remanded, this Court is without

jurisdiction to enforce the Discovery Order.

In fact, Lambda Research involved a similar situation to this one. In Lambda,

the trial court denied a motion to quash a subpoena, and the party subject to the

subpoena appealed that decision and did not produce the contested documents. Id. at ¶¶

10-12. It does not appear that a motion for a stay was filed. When the party did not

produce documents while the appeal was pending, the subpoenaing party moved to

compel the production, and the trial court granted the motion to compel and threated to

hold the non-producing parties in contempt. Id. at ¶ 11. The First District heard the

appeal and held that “trial court had not authority to compel enforcement of the

subpoenas” and that the entry compelling production was a “legal nullity.” Id. at ¶ 22. In

other words, the First District held that once the appeal was perfected, “all matters

concerning [] entitlement to enforce the subpoenas” were before the First District, not

the trial court. Id. The exact same reasoning instructs that the Court presently has been

divested of jurisdiction to enforce the Discovery Order. Therefore, the Court should

deny Relator’s Motion to Show Cause.

The cases cited by Relator stand for nothing more than the general proposition

that sometimes a Court may retain jurisdiction to enforce judgments that are on appeal.

Motion at 2. What Relator fails to note is that the Court’s enforcement cannot be

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inconsistent with appellate review. Here, any enforcement of the order is entirely

inconsistent with appellate review because it is the Discovery Order that Respondents

are appealing. Relator may also argue that the Court may act because there is a pending

motion to dismiss Respondents appeal. That argument is contrary to Ohio Supreme

Court precedent. State ex rel. Elec. Classroom of Tomorrow v. Cuyahoga County Court

of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626, ¶ 15. Moreover, if Relator’s

motion is successful, then this Court will have jurisdiction over the Discovery Order. At

a minimum, and as a matter of judicial economy, this Court should refrain from

conducting any contempt hearing until the motion to dismiss in the First District is

resolved.

In sum, Respondents have not ignored the Court’s Discovery Order, nor do they

have any intent to act in contempt of the Court. Rather, Respondents have exercised

their right to appeal the Discovery Order and simply ask the Court to follow binding

First District and Ohio Supreme Court precedent by denying Relator’s Motion to Show

Cause.

B. If required, Respondents are entitled to a stay as a matter of right

Although Respondents maintain that the Court is currently divested of

jurisdiction to enforce the Discovery Order and that they are not in contempt of the

Court’s Order, Respondents are also entitled to a stay pending the appeal pursuant to

Rule 62(C) and respectfully request leave to move for that stay.

The Ohio Rules of Civil Procedure provide an automatic stay for the government

on appeal. Rule 62(C), “Stay in Favor of the Government,” provides:

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

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 is stayed, no bond, obligation or other security shall be required from the
appellant.

Civ.R. 62.

The Ohio Supreme Court more recently restated the rule: “Civ.R. 62 patently and

unambiguously imposes on the court of common pleas and its judges the duty to issue a

stay without a supersedeas bond upon an appeal and request for stay by a political

subdivision. In such a circumstance, the availability of alternative remedies such as a

discretionary appeal from the court of appeals' setting of a supersedeas bond is

immaterial.” State ex rel. Elec. Classroom of Tomorrow v. Cuyahoga Cty. Court of

Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶29; see also State

ex rel. State Fire Marshal v. Curl¸87 Ohio St.3d 568, 571 (1999); State ex rel. Ocasek v.

Riley, 54 Ohio St.2d 488, 490, 377 N.E.2d 792 (1978) (trial court lacks discretion to

deny stay; holding evidentiary hearing on stay request was “inappropriate proceeding”).

As Respondents are entitled to a stay pending the appeal, Relator’s motion—in addition

to being legally unsupported—is also moot.

Conclusion

Respondents would not intentionally act in contempt of the Court’s Discovery

Order. Rather, Respondents perfected their appeal to the First District, and, given the

binding precedent in this District, believed no further action was required. If the Court

disagrees, Respondents then respectfully move for an automatic stay pursuant to Rule

62(C).

Respectfully Submitted,

Paula Boggs Muething

City Solicitor

/s/ Emily E. Woerner

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 Peter J. Stackpole (0072103)
Chief Counsel - Litigation
Emily E. Woerner (0089349)
Assistant City Solicitor
Room 214, City Hall
801 Plum Street
Cincinnati, Ohio 45202
Phone: (513) 352-3307
Fax: (513) 352-1515
peter.stackpole@cincinnati-oh.gov
emily.woerner@cincinnati-oh.gov
Counsel for Respondents

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was filed and sent via electronic mail

to the following on November 15, 2018:

Brian Shrive
Christopher Finney
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
brian@finneylawfirm.com
chris@finneylawfirm.com
Attorneys for Relator Mark Miller

s/Emily E. Woerner
Emily E. Woerner (089349)

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