State ex rel. A & D Limited Partnership v. KeefeState ex rel. A & D Limited Partnership v. Keefe
[Cite as State ex rel. A & D Limited Partnership v. Keefe, 1996-Ohio-95.]
Prohibition to prevent judge of common pleas court from conducting any additional hearings or rendering any decision on the issue of damages in an underlying action—Court of appeals errs in issuing writ when relators fail to establish that judge patently and unambiguously lacks jurisdiction to proceed with the damages hearing and determination.
{¶ 1} Several persons instituted a class action designated as Beck et al. v. A & D Limited Partnership et al., case No. A-91-06574, in the Hamilton County Court of Common Pleas on behalf of the occupants of the A & D Building in Cincinnati. The Beck plaintiffs alleged that poor indoor air quality created an unsafe and unsanitary condition causing illness to building occupants. They claimed that appellees, A & D Limited Partnership, Laurence Ashkin, and Arthur Slaven, had breached a lease agreement, breached certain warranties, and acted negligently, resulting in the unsafe and unsanitary condition of the building.
{¶ 2} In August 1995, appellant, Judge John W. Keefe, presided over a lengthy jury trial in Beck at which the issues of liability and punitive damages were tried for the entire class and the issues of liability and damages were tried for four class representatives, i.e., Sue Marshall, Linda Bachman, Karen Ringland, and Joseph Schwetschenau. The jury also considered the loss of consortium claim of Schwetschenau‘s wife, Dolores. The jury returned a verdict in favor of appellees on all issues and also returned a verdict finding no punitive damages for the class.
{¶ 3} On December 6, 1995, Judge Keefe granted plaintiffs’ motion for judgment notwithstanding the verdict on their negligence claim. In addition, although Judge Keefe overruled plaintiffs’ alternative motion for a new trial, he ordered a hearing to determine compensatory damages for the four class representatives. On December 29, appellees filed a notice of appeal from Judge Keefe‘s December 6 judgment entry. After appellees’ counsel advised Judge Keefe that appellees did not intend to appear at the scheduled damages hearing because they believed that their appeal divested the common pleas court of further jurisdiction, Judge Keefe stated that if appellees did not appear, they would be considered as having “violated and disregarded a direct order of this Court.”
{¶ 4} In January 1996, appellees filed a complaint in the Court of Appeals for Hamilton County for a writ of prohibition to prevent Judge Keefe from conducting any additional hearings or rendering any decision on damages in the Beck case. The court of appeals denied Judge Keefe‘s motion to dismiss the action and issued a writ of prohibition preventing Judge Keefe “from conducting any further hearings or issuing any decisions on the issue of damages” and “taking any further action inconsistent with [the court of appeals‘] authority to reverse, modify, or affirm the matters which are the subject of [appellees‘] appeal.”
{¶ 5} The cause is now before this court upon an appeal as of right.
Droder & Miller Co., L.P.A., Robert G. Block and W. John Sellins, for appellees.
Per Curiam.
{¶ 6} 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 prohibition, 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.
{¶ 7} 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.
{¶ 8} 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.
{¶ 9} Under
{¶ 10} In his first proposition of law, Judge Keefe contends that the December 6, 1995 entry was not a final order under
{¶ 11} 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
{¶ 12} 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
{¶ 13} May did not analyze the language of the applicable version of
“When May v. Mauger, supra, was decided, an order granting a new trial was not considered a final appealable order, under the authority of Green v. Acacia Mutual Life Ins. Co. (1951), 156 Ohio St. 1 [45 O.O. 32, 100 N.E.2d 211]. The Supreme Court overruled Green in 1965, in the case of Price v. McVoy Sales & Service, Inc. (1965), 2 Ohio St.2d 131 [31 O.O.2d 229, 207 N.E.2d 236]. Since 1965, there has been no question that a lower court decision granting a new trial is appealable. The fact that the action will not be terminated until the end of the second trial does not preclude a party from appealing the order granting the new trial.” See, also, Hurt v. Charles J. Rogers Transp. Co. (1953), 160 Ohio St. 70, 50 O.O. 534, 113 N.E.2d 489, paragraph one of the syllabus (“The journalized judgment of a ruling of a trial court on a motion to direct a verdict or on a motion for a judgment notwithstanding the verdict constitutes a final order from which an appeal may be taken.“).
{¶ 15} In addition, an amendment to
{¶ 16} Based on the foregoing, May is inapplicable and does not support Judge Keefe‘s assertion on appeal that the order granting the plaintiffs’ motion for judgment notwithstanding the verdict does not constitute a final order under
{¶ 17} In his final contention in his first proposition of law, Judge Keefe argues that under
“*** If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment. If the judgment is reopened, the court shall either order a new trial or direct the entry of judgment, but no judgment shall be rendered by the court on the ground that the verdict is against the weight of the evidence. If no verdict was returned the court may direct the entry of judgment or may order a new trial.”
{¶ 18} In essence, Judge Keefe claims that the appeal by appellees in the underlying action is premature, since he will not have “disposed” of the plaintiffs’
{¶ 19} Judge Keefe contends in his second proposition of law that even if the December 6, 1995 order is final under
{¶ 20} An order of a court is a final appealable order only if the requirements of both
“When more than one claim for relief is presented in an action ***, whether arising out of the same or separate transactions, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
{¶ 21}
{¶ 22} Appellees assert that
{¶ 23}
{¶ 24} Appellees also contend that
{¶ 25} In deciding a prohibition action, courts need not expressly rule on the jurisdictional issue, since review is limited to whether jurisdiction is patently and unambiguously lacking. State ex rel. Sellers v. Gerken (1995), 72 Ohio St.3d 115, 118, 647 N.E.2d 807, 810; Goldstein v. Christiansen (1994), 70 Ohio St.3d 232, 238, 638 N.E.2d 541, 545.
{¶ 26} For the foregoing reasons, the court of appeals erred in determining that Judge Keefe‘s lack of jurisdiction was patent and unambiguous. Appellees
Judgment reversed.
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and STRATTON, JJ., concur.
DOUGLAS, J., concurs in judgment only.