Black v. Hicks , 114 N.E.3d 365 ( 2018 )

[Cite as Black v. Hicks, 2018-Ohio-2289.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105248
ARNOLD BLACK
PLAINTIFF-APPELLEE
vs.
DET. RANDY HICKS, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-14-826010
BEFORE: Celebrezze, J., Laster Mays, P.J., and Keough, J.
RELEASED AND JOURNALIZED: June 14, 2018
ATTORNEY FOR APPELLANTS
Willa M. Hemmons
Director of Law, East Cleveland
14340 Euclid Avenue
Cleveland, Ohio 44112
ATTORNEYS FOR APPELLEE
Robert F. DiCello
Mark A. DiCello
Justin Hawal
DiCello Levitt & Casey
7556 Mentor Avenue
Mentor, Ohio 44060
David E. Weisblatt
Jackson Lewis P.C.
Park Center Plaza I
6100 Oak Tree Boulevard, Suite 400
Independence, Ohio 44131
Also Listed
Randy Hicks, pro se
1020 Lonetree Court
Brunswick, Ohio 44212
ON RECONSIDERATION1
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendants-appellants, East Cleveland Police Officer Jonathan O’Leary, East
Cleveland Police Chief Ralph Spotts, the city of East Cleveland, and John Does 1-10
(collectively “appellants”), bring the instant appeal challenging the jury’s verdict in favor of
plaintiff-appellee, Arnold Black (“Black”), on Black’s claims for malicious prosecution, abuse of
process, spoliation, battery, false imprisonment, supervisory liability, reckless/wanton/willful
1
The original announcement of decision, Black v. Hicks, 8th Dist. Cuyahoga No. 105248, 2018-Ohio-680,
released February 22, 2018, is hereby vacated. This opinion, issued upon reconsideration, is the court’s journalized
decision in this appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01.
conduct pursuant to R.C. 2921.52, and civil conspiracy. Appellants further challenge the trial
court’s dismissal of their cross-claim against defendant-appellee, Randy Hicks, a former East
Cleveland Police Detective (“Hicks”). Appellants argue that the trial court violated Civ.R.
39(A) and Loc.R. 21 by conducting an ex parte jury trial, their constitutional due process rights
were violated when the trial court failed to provide them notice of the trial date, and that the trial
court issued orders and conducted a jury trial during the pendency of appeals that were
inconsistent with this court’s and the Ohio Supreme Court’s exercise of jurisdiction. After a
thorough review of the record and law, this court reverses and remands for further proceedings
consistent with this opinion.
I. Factual and Procedural History
{¶2} The instant matter arose from an incident that occurred on April 28, 2012, during
which Black alleged that appellants arrested him without probable cause and used excessive
force in doing so. On April 28, 2014, Black filed a complaint against Hicks and appellants in
which he asserted claims for malicious prosecution, abuse of process, spoliation, battery, false
imprisonment, supervisory liability, reckless/wanton/willful conduct pursuant to R.C. 2921.52,
and civil conspiracy.
{¶3} On May 6, 2014, appellants filed an answer and a cross-claim against Hicks,
alleging that Hicks was not acting as an agent of the East Cleveland Police Department on April
28, 2012. On December 15, 2014, Hicks, acting pro se, filed an answer to Black’s complaint
and appellants’ cross-claim.
{¶4} On October 1, 2015, the trial court set the matter for trial on April 11, 2016, at 9:00
a.m.
{¶5} On March 24, 2016, Black filed (1) a motion for default judgment or, in the
alternative, a motion to preclude appellants from presenting evidence and witnesses at trial that
were not disclosed during the exchange of discovery; (2) a motion in limine to exclude character
evidence; (3) a motion in limine to exclude evidence regarding defendants’ inability to satisfy a
judgment; and (4) a motion in limine to exclude evidence in support of affirmative defenses.
{¶6} On April 4, 2016, the trial court cancelled the trial set for April 11, 2016. Trial was
rescheduled for May 23, 2016.
{¶7} On April 19, 2016, the trial court issued an order requiring appellants to respond to
Black’s discovery requests on or before May 2, 2016. The trial court indicated that appellants’
failure to respond to the discovery requests would result in sanctions, including the exclusion of
the evidence and witnesses at trial that defendants failed to produce during discovery.
{¶8} On April 20, 2016, the trial court vacated its April 19, 2016 order and set a show
cause hearing requiring appellants to show cause why they failed to respond to Black’s discovery
requests. The trial court’s journal entry stated that appellants’ failure to show cause would result
in sanctions, including appellants being precluded from offering evidence, witnesses, and
arguments at trial that they failed to produce during discovery.
{¶9} On May 6, 2016, appellants filed an appeal challenging the trial court’s April 20,
2016 order. Black v. Hicks, 8th Dist. Cuyahoga No. 104453 (“Black I”). On May 10, 2016, this
court dismissed the appeal for lack of a final appealable order.
{¶10} On May 9, 2016, the trial court denied Black’s motion for default judgment. The
trial court granted, however, Black’s motion to preclude appellants from offering evidence and
witnesses at trial that were not disclosed during discovery. The trial court concluded that
appellants failed to respond to Black’s requests for discovery, failed to respond to Black’s motion
to exclude evidence, and failed to provide a reason or excuse for their failure to respond to
discovery. On the same date, the trial court granted Black’s motions in limine to exclude
character evidence, evidence regarding appellants’ inability to satisfy a judgment, and evidence
in support of affirmative defenses; the trial court also granted Black’s request to have admissions
deemed admitted against Hicks.
{¶11} On May 10, 2016, appellants filed an appeal challenging the trial court’s May 9,
2016 orders. Black v. Hicks, 8th Dist. Cuyahoga No. 104461 (“Black II”). On May 24, 2016,
this court dismissed the appeal for lack of a final appealable order.
{¶12} On May 25, 2016, appellants filed a notice of appeal and a memorandum in support
of jurisdiction in the Ohio Supreme Court challenging this court’s dismissal in Black II. Black
v. Hicks, Ohio Supreme Court Case No. 2016-0805 (“Black III”). Appellants assert that this
appeal was perfected at approximately 9:36 a.m. The Ohio Supreme Court subsequently
declined to accept jurisdiction of the appeal and denied Black’s motion for sanctions against
appellants on September 14, 2016.
{¶13} The case was set for trial on May 23 and May 24, 2016. On both dates, trial was
continued. Despite the appeal pending in the Ohio Supreme Court, a jury trial commenced on
May 25, 2016, at approximately 11:50 a.m. Neither appellants nor counsel appeared in court on
May 23, 24, or 25.
{¶14} The jury trial concluded on May 31, 2016. The jury returned a verdict in favor of
Black, which the trial court journalized on June 3, 2016. The trial court’s judgment entry
provides:
Trial start date May 25, 2016, and end date May 31, 2016, before eight jurors and
two alternate jurors. * * * The jury finds $10,000,000.00 (ten million dollars) in
compensatory damages for [Black] against the following defendants arising out of
the following claims: (1) for [Black] against defendant Detective Randy Hicks and
defendant Officer Jonathan O’Leary as to [Black’s] first claim for violation of
[Black’s] federal civil rights; (2) for [Black] against defendant City of East
Cleveland as to [Black’s] second claim for municipal liability; (3) for [Black]
against defendant Detective Randy Hicks and defendant Officer Jonathan O’Leary
as to [Black’s] third claim for false imprisonment/arrest; (4) for [Black] against
defendant Detective Randy Hicks and defendant Officer Jonathan O’Leary as to
[Black’s] fourth claim for battery; joint and several liability as to Claims 1, 2, 3
and 4[;] (5) for [Black] against defendant Chief Spotts as to [Black’s] fifth claim
for supervisory liability; and (6) for [Black] against defendant Chief Spotts as to
[Black’s] sixth claim for spoilation.
Furthermore, the jury finds $12,000,000.00 (twelve million dollars) in punitive
damages for [Black] as follows: (1) for [Black] against defendant Officer Jonathan
O’Leary in the amount of 1,000,000.00 (one million dollars) as to [Black’s] first
claim for violation of [Black’s] federal civil rights, as to [Black’s] third claim of
false imprisonment/arrest, and as to [Black’s] fourth claim for battery; and, (2) for
[Black] against defendant Chief Spotts in the amount of $11,000,000.00 (eleven
million dollars) as to [Black’s] fifth claim for supervisory liability and as to
[Black’s] sixth claim for [spoliation].
{¶15} On June 15, 2016, appellants filed an appeal challenging the trial court’s judgment.
Black v. Hicks, 8th Dist. Cuyahoga No. 104613 (“Black IV”). On November 8, 2016, this court
dismissed the appeal for lack of a final appealable order, finding that judgment was not entered
on all of Black’s claims.
{¶16} On November 14, 2016, Black filed a notice of voluntary dismissal of Counts 7
(reckless/wanton/willful conduct pursuant to R.C. 2921.52) and 8 (civil conspiracy). On June
20, 2017, Black filed a notice of voluntary dismissal of Counts 7 and 8 of his complaint with
prejudice. On June 29, 2017, the trial court issued a journal entry confirming that Black
dismissed Counts 7 and 8 of his complaint. The trial court indicated that these counts were
dismissed with prejudice.
{¶17} On December 12, 2016, appellants filed an appeal challenging the trial court’s
judgment. Black v. Hicks, 8th Dist. Cuyahoga No. 105248 (“Black V”). This court dismissed
the appeal, sua sponte, on March 21, 2017, due to appellants’ failure to file an appellate brief.
This court granted appellants’ motion to reinstate the appeal on March 28, 2017.
{¶18} In the instant appeal, appellants assign four errors for review:
I. The lower court’s conduct of an ex parte jury trial was in violation of Civ.R.
39(A) and Loc.R. 21.0.
II. The lower court’s notices failed to provide reasonable, constructive, and/or
actual notice that trial was [set] for May 25, 2016; [a]ccordingly, appellants’
constitutional right to due process was violated.
III. The lower court’s May [9], 2016, May 2[5], 2016 and J[uly] 7, 2016 orders
must be vacated as such rulings, entered during the pendency of appeals, were not
made in execution, and thus were inconsistent with the reviewing courts’ exercise
of jurisdiction.
IV. The lower court lacked authority to conduct the May 25, 2016 ex parte jury
trial, as such trial proceeded during the pendency of appeal to the Ohio Supreme
Court.
II. Law and Analysis
A. Trial Court’s Jurisdiction
{¶19} We will address appellants’ third assignment of error first, because it is dispositive
of the appeal. In the third assignment of error, appellants argue that the trial court was without
jurisdiction to issue the May 9, 2016 orders, commence a jury trial on May 25, 2016, and dismiss
appellants’ cross-claim on July 7, 2016. On the other hand, Black contends in his motion for
reconsideration that the appeal that appellants filed in the Ohio Supreme Court did not divest the
trial court of jurisdiction because (1) appellants did not file a motion for an immediate stay of
this court’s holding in Black II pursuant to S.Ct.Prac.R. 7.01(A)(3)(a), and (2) the Ohio Supreme
Court declined to accept appellants’ discretionary appeal. After reviewing the record, we agree
with appellants.
{¶20} First, contrary to Black’s assertion, appellants were not required to file a motion for
an immediate stay of this court’s holding in Black II. S.Ct.Prac.R. 7.01(A)(1)(a) provides,
(i) To perfect a jurisdictional appeal from a court of appeals to the Supreme Court
as defined by S.Ct.Prac.R. 5.02(A), the appellant shall file a notice of appeal in
the Supreme Court within forty-five days from the entry of the judgment being
appealed. * * *.
(ii) Except as provided by S.Ct.Prac.R. 7.01(A)(3), the appellant shall also file a
memorandum in support of jurisdiction, in accordance with S.Ct.Prac.R. 7.02, at
the time the notice of appeal is filed.
{¶21} S.Ct.Prac.R. 7.01(A)(3)(a) provides,
In a jurisdictional appeal, if the appellant seeks from the Supreme Court an
immediate stay of the court of appeals’ judgment that is being appealed, the
appellant may file a notice of appeal in the Supreme Court without an
accompanying memorandum in support of jurisdiction, provided both of the
following conditions are satisfied:
(i) A motion for stay of the court of appeals’ judgment is filed with the notice of
appeal;
(ii) A date-stamped copy of the court of appeals’ opinion and judgment entry
being appealed is attached to the motion for stay.
(Emphasis added.)
{¶22} In this case, the record reflects that appellants perfected the jurisdictional appeal to
the Ohio Supreme Court on May 25, 2016 — before the jury trial commenced. Appellants filed
a notice of appeal and a memorandum in support of jurisdiction in the Ohio Supreme Court on
May 25, 2016, challenging this court’s dismissal in Black II. Pursuant to S.Ct.Prac.R.
7.01(A)(1)(a), by filing of the notice of appeal and memorandum in support of jurisdiction,
appellants perfected the jurisdictional appeal from this court’s judgment in Black II.
Furthermore, because appellants filed an accompanying memorandum in support of jurisdiction
with the notice of appeal, appellants were not required to file a motion for a stay of this court’s
judgment pursuant to S.Ct.Prac.R. 7.01(A)(3)(a).
{¶23} Accordingly, appellants’ failure to seek an immediate stay of this court’s judgment
in Black II or file a motion for stay of this court’s judgment was inconsequential. The trial court
was divested of jurisdiction when appellants perfected the jurisdictional appeal to the Ohio
Supreme Court.
{¶24} Additionally, we find no merit to Black’s argument that the trial court was not
divested of jurisdiction because the Ohio Supreme Court had not accepted appellants’ appeal at
the time the jury trial commenced on May 25, 2016, and ultimately declined to accept appellants’
appeal for review.
It is well settled that “the filing of the notice of appeal divests the trial court of
jurisdiction to proceed with the adjudication during the pendency of the appeal.”
State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of
Common Pleas, 129 Ohio St. 3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶ 16. With
respect to the trial court’s jurisdiction, it is irrelevant that the appellate court later
dismisses the action, after making the determination that the appeal was perfected
from an order that was not a final appealable one. Id. The determination as to
“the appropriateness of an appeal lies solely with the appellate court[.]” Id.,
quoting In re S.J., 106 Ohio St. 3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶
10-11. Upon the filing of the appeal, the trial court is without jurisdiction to
proceed on the merits of the remaining claims until the case is remanded by the
appellate court. Story v. Price-Story, 8th Dist. Cuyahoga No. 94085,
2010-Ohio-4675, ¶ 7.
(Emphasis added.) Sunshine L.P. v. C.A.S.T.L.E. High School, Inc., 8th Dist. Cuyahoga No.
104912, 2017-Ohio-1557, ¶ 4.
{¶25} “‘[O]nce an appeal is perfected, the trial court is divested of jurisdiction over
matters that are inconsistent with the reviewing court’s jurisdiction to reverse, modify, or affirm
the judgment.’” Electronic Classroom of Tomorrow at ¶ 13, quoting State ex rel. Rock v. School
Emps. Retirement Bd., 96 Ohio St. 3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶ 8. In other
words, once a case has been appealed, the trial court loses jurisdiction except to take action in aid
of the appeal. State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio
St.2d 94, 97, 378 N.E.2d 162 (1978).
{¶26} In support of his argument that the trial court was not divested of jurisdiction when
appellants filed its appeal, Black III, in the Ohio Supreme Court, Black directs this court, for the
first time on reconsideration, to Master v. Chalko, 8th Dist. Cuyahoga No. 75973, 2000 Ohio
App. LEXIS 2014 (May 11, 2000). In Chalko, this court determined that the mere filing of an
appeal with the Ohio Supreme Court does not automatically stay the proceedings in the trial
court. Id. at 18. This court held,
a trial court is not precluded from exercising jurisdiction in a case where a notice
of appeal is filed with the Supreme Court from a judgment of the court of appeals
until such time as either a motion for immediate stay of the court of appeals’
judgment is granted or when the Supreme Court decides to allow a discretionary
appeal.
Id. at 17. This court went on to explain that S.Ct.Prac.R. II, Sec. 2(A)(3)(a)(ii)2 sets forth a
procedure under which an appellant can seek an immediate stay of an appellate court’s judgment
— by filing a motion for stay contemporaneously with the notice of appeal. Id.
{¶27} As an initial matter, we note that Special Prosecutors and its progeny, including
Electronic Classroom of Tomorrow and In re S.J., pertain to trial courts being divested of
jurisdiction upon the filing of appeals in courts of appeals, rather than the filing of appeals in the
Ohio Supreme Court. Nevertheless, we find that Black’s reliance on Chalko is misplaced.
{¶28} In State v. Washington, 137 Ohio St. 3d 427, 2013-Ohio-4982, 999 N.E.2d 661, the
Ohio Supreme Court held that ‘“[a]n appeal is perfected upon the filing of a written notice of
2
The rules were amended on September 29, 2017. The current version of this rule is set forth in
S.Ct.Prac.R. 7.01(A)(3)(a).
appeal. R.C. 2505.04. Once a case has been appealed, the trial court loses jurisdiction except
to take action in aid of the appeal. [Special Prosecutors, 55 Ohio St. 2d at 97, 378 N.E.2d
162.]”’ Washington at ¶ 8, quoting In re S.J., 106 Ohio St. 3d 11, 2005-Ohio-3215, 829 N.E.2d
1207, at ¶ 9. Accordingly, in Washington, the Ohio Supreme Court extended the Special
Prosecutors rationale — that a trial court is divested of jurisdiction upon the filing of an appeal
in a court of appeals — to appeals filed in the Ohio Supreme Court.
{¶29} This court applied the Washington rationale in State v. Thomas, 8th Dist. Cuyahoga
No. 103406, 2016-Ohio-8326. There, after being sentenced in 2014, the defendant filed an
appeal challenging the trial court’s sentence. On February 5, 2015, this court vacated the trial
court’s sentence and remanded the matter for resentencing.3 On March 23, 2015, the state filed
an appeal in the Ohio Supreme Court challenging this court’s decision, which the court accepted
on September 16, 2015.4 After the state filed its notice of appeal with the Ohio Supreme Court,
the trial court resentenced the defendant on July 30, 2015. The defendant filed an appeal
challenging the sentence imposed at resentencing in August 2015.
{¶30} On appeal, this court requested the parties to submit supplemental briefing on the
issue of whether, pursuant to Washington, the trial court lacked jurisdiction to resentence the
defendant after the state filed its notice of appeal in the Ohio Supreme Court. The state argued
that the trial court had jurisdiction to resentence the defendant in July 2015 because the Ohio
Supreme Court had not accepted the state’s appeal. This court rejected the state’s argument and
explained that it was bound to follow Washington because it was “the most recent Supreme
Court case to apply the rule regarding jurisdiction and the filing of a notice of appeal.” Thomas
3
State v. Thomas, 8th Dist. Cuyahoga No. 101202, 2015-Ohio-415.
4
State v. Thomas, 148 Ohio St. 3d 248, 2016-Ohio-5567, 70 N.E.3d 496.
at ¶ 13. Accordingly, this court held that after the state filed its notice of appeal in the Ohio
Supreme Court in March 2015, the trial court did not have jurisdiction to resentence the
defendant in July 2015. Id.; see also Wells v. Park, 9th Dist. Summit No. 27960,
2016-Ohio-5598 (the appellate court, in applying Washington, held that the trial court did not
have jurisdiction to rule on motions determining child support arrearage in June 2015 because
appellant filed a notice of appeal in the Ohio Supreme Court in February 2015 challenging a
decision issued by the Ninth District).
{¶31} Based on the foregoing analysis, we find that Chalko was implicitly overruled by
the Ohio Supreme Court in Washington and, thus, is no longer good law. Accordingly, we will
proceed to consider appellants’ arguments that the trial court was without jurisdiction to issue the
May 9, 2016 orders, commence a jury trial on May 25, 2016, and dismiss appellants’ cross-claim
on July 7, 2016.
1. May 9, 2016 Orders
{¶32} In the instant matter, appellants first argue that the trial court was without
jurisdiction to issue the May 9, 2016 orders because Black I was pending. On May 9, 2016, the
trial court granted (1) Black’s motion to preclude appellants from offering evidence and
witnesses at trial that were not disclosed during discovery; (2) Black’s motions in limine to
exclude evidence in support of affirmative defenses, character evidence, and appellants’ inability
to satisfy a judgment; and (3) Black’s motion to have admissions deemed admitted.
{¶33} Appellants filed a notice of appeal in Black I on May 6, 2016, challenging the trial
court’s April 20, 2016 judgment order, which provided, in relevant part:
[Appellants] have failed to produce responses to the discovery that [Black] served
upon them on 8-8-14 and 9-4-14. Failure to show cause as to why these
responses were not served and why discovery was never propounded upon [Black]
shall result in sanctions as provided in Civil Rule 41(B) and 37(D) and will
include precluding [appellants] from offering at trial evidence, witnesses,
argument or comment regarding the evidence and witnesses they failed to so
produce. A show cause hearing is scheduled for May 2, 2016 @ 10 am.
This court dismissed the appeal on May 10, 2016 for lack of a final appealable order.
{¶34} After reviewing the record, we find that the trial court lacked jurisdiction to issue
the May 9, 2016 orders. When the trial court issued these orders, Black I was still pending.
The May 9, 2016 orders were inconsistent with this court’s jurisdiction to reverse, modify, or
affirm the trial court’s April 20, 2016 judgment that appellants appealed to this court.
{¶35} “An adjudication entered by a court without jurisdiction is a nullity and is void.”
Story, 8th Dist. Cuyahoga No. 94085, 2010-Ohio-4675, at ¶ 7, citing Fifth St. Realty Co. v.
Clawson, 9th Dist. Lorain No. 94CA005996, 1995 Ohio App. LEXIS 2565 (June 14, 1995);
Lambda Research v. Jacobs, 170 Ohio App. 3d 750, 2007-Ohio-309, 869 N.E.2d 39, ¶ 22 (1st
Dist.). Accordingly, the trial court’s May 9, 2016 orders are void.
2. Jury Trial
{¶36} Appellants further contend that the trial court was without jurisdiction to
commence a jury trial on May 25, 2016, because appellants had perfected an appeal to the Ohio
Supreme Court.
{¶37} Appellants filed a notice of appeal in Black II on May 10, 2016, challenging the
trial court’s aforementioned May 9, 2016 orders granting Black’s motions in limine, to have
matters admitted, and to preclude appellants from offering evidence that was not produced during
discovery. On May 24, 2016, this court dismissed Black II for lack of a final appealable order.
{¶38} On May 25, 2016, appellants filed an appeal in the Ohio Supreme Court
challenging this court’s dismissal of Black II for lack of a final appealable order. Black III.
Although we are unable to determine the exact time that appellants’ notice of appeal was filed,
appellants assert that they filed the notice of appeal at approximately 9:36 a.m.
{¶39} We are also unable to determine the exact time that the trial court commenced the
jury trial. Appellants assert that the jury trial commenced at approximately 11:50 a.m., after the
notice of appeal was filed in the Ohio Supreme Court. Black offers no evidence to the contrary.
{¶40} After reviewing the record, we find that the filing of the notice of appeal with the
Ohio Supreme Court divested the trial court of jurisdiction to proceed on the merits of Black’s
claims. Before the trial commenced, the appeal in the Ohio Supreme Court had already been
filed, and was still pending. The trial court’s commencement of the jury trial was inconsistent
with the Ohio Supreme Court’s jurisdiction to reverse, modify, or affirm this court’s May 24,
2016 dismissal of Black II for lack of a final appealable order that appellants appealed.
{¶41} We further find that the jury’s May 31, 2016 verdict, and the trial court’s June 3,
2016 order journalizing the verdict, are also void. The appeal in the Ohio Supreme Court was
pending from May 25, 2016 until September 14, 2016, when the court declined to accept
jurisdiction of the appeal.
3. July 7, 2016 Order
{¶42} Finally, appellants argue that the trial court was without jurisdiction to issue the
July 7, 2016 order dismissing appellants’ cross-claim.
{¶43} On May 3, 2016, Hicks filed a motion to dismiss appellants’ cross-claim pursuant
to Civ.R. 41(B) and (C) for failure to prosecute. Therein, Hicks argued that he was unable to
defend against the cross-claim based on appellants’ failure to provide discovery to him and
Black. Specifically, Hicks asserted that appellants failed to produce police reports, detective
reports, and dash camera footage. On July 7, 2016, the trial court granted Hicks’s motion to
dismiss appellants’ cross-claim.
{¶44} As noted above, appellants’ appeal to the Ohio Supreme Court was pending from
May 25, 2016 to September 14, 2016. When the trial court granted Hicks’s motion to dismiss
the cross-claim, the Ohio Supreme Court appeal was still pending. Because Hicks’s motion to
dismiss was premised on appellants’ failure to provide discovery to Hicks and Black, the trial
court’s order granting Hicks’s motion to dismiss the cross claim was inconsistent with the Ohio
Supreme Court’s jurisdiction to reverse, modify, or affirm this court’s May 24, 2016 dismissal of
Black II for lack of a final appealable order that appellants appealed. Accordingly, the trial
court’s July 7, 2016 order is void.
{¶45} Black maintains that appellants’ May 6, 2016 and May 10, 2016 appeals to this
court, and appellants’ May 25, 2016 appeal to the Ohio Supreme Court did not divest the trial
court of jurisdiction because appellants knew that the orders from which they appealed were not
final appealable orders. Black further contends that appellants filed the appeals for the sole
purpose of delaying the trial court proceedings.
{¶46} After reviewing the record, we find that appellants engaged in questionable
conduct throughout the trial court proceedings. Appellants failed to respond to Black’s and
Hicks’s discovery requests, failed to produce evidence requested by Black and Hicks, and failed
to appear for trial on multiple occasions. Most importantly, there is no evidence in the record
that appellants informed the trial court on May 25, 2016, that they had filed an appeal in the Ohio
Supreme Court before the jury trial commenced.
{¶47} The record reflects that the May 25, 2016 notice of appeal in Black III was sent by
ordinary U.S. mail to Black’s counsel. The Ohio Supreme Court docket indicates that a copy of
the notice of appeal in Black III was sent to this court’s clerk of courts on May 26, 2016. This
notice of appeal is reflected on this court’s docket in Black II on May 31, 2016. The notice of
appeal to the Ohio Supreme Court is not, however, reflected on the trial court’s docket. Had
appellants made the trial court aware of the appeal to the Ohio Supreme Court, we presume that
the trial court would not have commenced the jury trial, which lasted five days.
{¶48} If a party files an appeal for improper purposes, such as delaying the final
resolution of the case, or files a frivolous appeal, the party may be subject to sanctions and/or
disciplinary action. See, e.g., App.R. 23 (“[i]f a court of appeals shall determine that an appeal
is frivolous, it may require the appellant to pay reasonable expenses of the appellee including
attorney fees and costs.”).
{¶49} Nevertheless, even if appellants’ appeals were frivolous or filed for improper
purposes, when appellants perfected the appeals to this court and the Ohio Supreme Court, the
trial court was required to stay the proceedings, except to take action in aid of the appeals, until
the resolution of the appeals. We must emphasize that this unfortunate waste of judicial time
and resources could have been avoided had appellants appeared in court on May 25, 2016, or
informed the trial court or Black’s counsel that the appeal to the Ohio Supreme Court had been
perfected.
{¶50} For all of the foregoing reasons, appellants’ third assignment of error is sustained.
III. Conclusion
{¶51} The trial court was divested of jurisdiction to issue the May 9, 2016 orders because
Black I was pending in this court. The trial court was divested of jurisdiction to commence a
jury trial on Black’s claims, to journalize the jury’s verdict, and to issue the July 7, 2016 order
dismissing appellants’ cross-claim because Black III was pending in the Ohio Supreme Court.
Accordingly, these orders and the jury’s verdict are void and must be vacated.
{¶52} This case essentially remains at the state of the proceeding as it existed on May 10,
2016, when this court dismissed Black I for lack of a final appealable order. See Sunshine L.P.,
8th Dist. Cuyahoga No. 104912, 2017-Ohio-1557, at ¶ 7. Based on our resolution of appellants’
third assignment of error, appellants’ first, second, and fourth assignments of error are rendered
moot.
{¶53} Judgment reversed and remanded for further proceedings.
It is ordered that appellants recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
ANITA LASTER MAYS, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR