761 N.E.2d 1072 | Ohio Ct. App. | 2001
Joseph E. Coury is the father of the individual relators and Elias Coury. In the early 1990's, Joseph E. Coury owned the Health Care Companies and transferred the companies' stock to his children and their spouses. By 1994, he was no longer a shareholder, and the children were running the companies.
However, by the late 1990's, the children were having disputes about running the companies. On August 24, 1999, Joseph E. Coury produced closed corporation agreements for the Health Care Companies that purported to grant Joseph E. Coury the right to unilaterally control the ownership and operation of the companies. In April 2000, the relators filed suit against Joseph E. Coury and Elias Coury (hereinafter "Joseph E. Coury") to declare the closed corporation agreements invalid and unenforceable, for injunctive relief, to prevent the enforcement of the agreements by estoppel, and for reformation and damages. Joseph E. Coury counterclaimed to declare the agreements valid and enforceable and for redemption of shares.
On October 26, 2000, on cross-motions for summary judgment, the trial court declared the agreements valid but did not address the other issues in the case. On the night of October 27, 2000, Joseph E. Coury executed on the partial summary judgment and reasserted control over the Health Care Companies.
The relators quickly moved for contempt and injunctive relief; however, the trial court never granted those motions, and Joseph E. Coury remains in control of the Health Care Companies. Nevertheless, in an entry dated November 9, *25 2000 and journalized December 4, 2000, the trial court entered final judgment on Joseph E. Coury's motion for partial summary judgment by determining that there was no just reason for delay under Civ.R. 54(B) with regard to the issue of validity of only the close corporation agreements.2
The relators argue that the trial court must prohibit Joseph E. Coury from executing on the judgment that the close corporation agreements are valid because execution is not permitted on a non-final judgment nor is execution permitted until the trial court has disposed of all of the claims. They rely on Marion Production Credit Association v. Cochran
(1988),
The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief; (2) the respondent must have a clear legal duty to perform the requested relief; and (3) there must be no adequate remedy at law. Additionally, although mandamus may be used to compel a court to exercise judgment or to discharge a function, it may not control judicial discretion, even if that discretion is grossly abused. State ex rel. Ney V. Niehaus (1987),
The relators' position is not well taken. The determination of no just reason for delay pursuant to Civ.R. 54(B) nullifies the relators' strongest argument. The relators emphasized the lack of 54(B) language in their petition to establish that the October 26, 2000 order was interlocutory and execution was prohibited.
When the respondent made the 54(B) determination, the issue of whether or not to prohibit execution then became a matter within the judge's discretion. Civil Rule 62(E) provides:
When a court has ordered a final judgment under the conditions stated in Rule 54(B), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.
Thus, the Civil Rules allow a judge to issue execution or to stay execution of judgment that has been rendered final through Civ.R. 54(B), as in this case. Additionally, the Supreme Court of Ohio in State exrel. Electrolert, Inc. v. Lindeman (1994),
Similarly, relators' second argument, that execution may not issue until the trial court has disposed of all pending claims, is not well taken. Although Marion Production offers some support for that proposition, Civ.R. 62 (E), Lindeman, and Anderson v. Scherer (1994),
However, pursuant to Civ.R. 62(E), a party seeking a stay of a partial judgment with Civ.R. 54(B) findings must demonstrate that substantial harm will *27 occur if execution is permitted upon the judgment prior to the determination of the remaining claims. * * * [T]he party seeking the stay has the burden under Civ.R. 62(E) to demonstrate a reason execution should be stayed despite the Civ.R. 54(B) findings.
Because mandamus may not interfere with judicial discretion and because the issue of execution of a judgment certified as final under Civ.R. 54(B) comes within the discretion of the judge, mandamus will not lie in this case. At the very least, it is not clear that the respondent must prohibit execution, and without that clarity, mandamus will not lie.
Furthermore, the relators have an adequate remedy at law through appeal and the seeking of a stay under App.R. 7. Indeed, the relators conceded as much on page ten of their initial petition for mandamus when they stated that without the issuance of a final, appealable order by the trial court, they could "not seek relief from this Court through an appeal and a motion for stay of execution pursuant to Rule 7 * * *."
Accordingly, the petition for writ of mandamus is not well taken and this court grants the motion to dismiss. Relators to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).
KENNETH A. ROCCO, JUDGE
ANN DYKE. A.J. CONCURS, TIMOTHY E. McMONAGLE. J. CONCURS.
