CITY OF WESTLAKE v. CITY OF CLEVELAND
No. 107222
Cоurt of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
April 18, 2019
2019-Ohio-1435
PATRICIA ANN BLACKMON, J.
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 107222
CITY OF WESTLAKE
PLAINTIFF-APPELLEE
vs.
CITY OF CLEVELAND
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-12-782910
BEFORE: Blackmon, J., S. Gallagher, P.J., and Jones, J.
RELEASED AND JOURNALIZED: April 18, 2019
Susan M. Audey
Robert J. Hanna
Karl A. Bekeny
Tucker Ellis L.L.P.
950 Main Avenue, Suite 1100
Cleveland, Ohio 44113
Barbara A. Langhenry
Director of Law, City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael P. Maloney
Director of Law
Robin R. Leasure-Soeder
Assistant Law Director
City of Westlake
27700 Hilliard Boulevard
Westlake, Ohio 44145
Dennis M. O’Toole
Matthew A. Dooley
Stephen M. Bosak, Jr.
Frank S. Carlson
O’Toole, McLaughlin, Dooley & Pecora
5455 Detroit Road
Sheffield Lake, Ohio 44054
PATRICIA ANN BLACKMON, J.:
{¶1} This appeal arises from this court’s remand in Westlake v. Cleveland, 8th Dist. Cuyahoga No. 104282, 2017-Ohio-4064 (“Westlake I”). After the trial court convened a hearing on remand and witness testimony was presented, Westlake filed a
The trial court erred in denying as moot Appellant City of Cleveland’s Motion to strike Appellee City of Westlake’s improperly filеd
{¶2} During the pendency of this direct appeal, this court issued a writ of mandamus, concluding that the notice of dismissal “was ineffective and respondent has jurisdiction to rule on Cleveland’s motion to strike, and to conduct the hearing mandated by this court” in Westlake I. See State ex rel. Cleveland v. Shaughnessy, 8th Dist. Cuyahoga No. 107403, 2018-Ohio-4797, ¶ 21 (“Westlake II”). Having reviewed the record and the controlling case law, we conclude that Westlake’s
{¶3} The parties’ dispute stems from Cleveland’s provision of municipal water to Westlake pursuant to a 1990 water service agreement. After the contract was in effect for numerоus years, Cleveland determined that Westlake had explored alternative sources for water and notified Westlake that it had to provide five years advance notice in order to terminate the water service agreement. Westlake II at ¶ 1. Cleveland also imposed significant cost increases to recover “stranded costs.” Id. at ¶ 2. Westlake filed a declaratory judgment action seeking declarations that the water agreement terminated after the expiration of 25 years, and that Cleveland could not recover the “stranded costs.” Westlake I, 2017-Ohio-4064, at ¶ 1. The trial
{¶4} On direct appeal of the trial court’s ruling in the declaratory judgment action, this court concluded that Cleveland had no contractual right to recover the “strаnded costs,” and that the water service agreement was a nonexclusive agreement for a minimum period of ten years, with annual renewals constituting new yearly agreements. Westlake I at ¶ 54. Additionally, in light of the аnnual renewals, this court held that the claimed five-year notice of termination was inapplicable. However, this court found that there is a question of fact as to how much notice was required, so it “reversed and remanded for proceedings consistent with this opinion.” Id.
{¶5} The record further reflects that in response to the Westlake I remand, the trial court set a hearing for March 27, 2018. On the day of the hearing, the trial court permitted witness Susan Schell, an еnvironmental manager of the Ohio Environmental Protection Agency (“OEPA”), to testify out of order, on behalf of Cleveland. Following Schell’s testimony on direct examination and on cross-examination, the trial court continued the hearing until April 27, 2018. However, on April 23, 2018, Westlake filed a notice of voluntary dismissal without prejudice pursuant to
{¶6} On April 25, 2018, Cleveland filed a motion to strike Westlake’s notice of vоluntary dismissal. Cleveland maintained that although
{¶7} While this direct appeal was pending, Clevеland also filed a verified complaint in mandamus in this court, seeking a writ to compel the trial court to proceed with the hearing ordered on remand. Westlake II, 2018-Ohio-4797, at ¶ 2. On November 17, 2018, this court granted the writ of mandamus and directed the trial court to hold the hearing ordered in the remand of Westlake I. Westlake II at ¶ 8. This court recognized that
Therefore, Westlake could not use a notice оf voluntary dismissal to terminate the action because trial had commenced. The notice was ineffective and respondent has jurisdiction to rule on Cleveland’s motion to strike, and to cоnduct the hearing mandated by this court. * * *
Cleveland is entitled to have the trial court rule on its motion to strike and to move forward with the trial regardless of Westlake’s notice of voluntary dismissal.
(Emphasis added.) Id. at ¶ 21-23.
Civ.R. 41(A)(1)(a)
{¶8}
Once trial begins, the trial court is the gatekeeper, ensuring that dismissal does not prejudice other parties and occurs “upon such terms and conditions as the court deems proper.”
Civ.R. 41(A)(2) . This rule allows the trial court to determine the conditions to impose tо protect the other parties and to ensure that they are not prejudiced upon refiling. Therefore, whileCiv.R. 41(A)(1)(a) does not permit a unilateral voluntary dismissal without prejudice once trial has begun, the trial court, in its discretion, may allow a plaintiff to dismiss pursuant toCiv.R. 41(A)(2) .
Id. at ¶ 22.
{¶9} Further, in State ex rel. Conkle v. Sadler, 99 Ohio St.3d 402, 2003-Ohio-4124, 792 N.E.2d 1116, the Ohio Supreme Court held that in the absence of a patent and unambiguous lack of jurisdiction, a court having general subject matter jurisdiction can determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal. Id. at ¶ 8.
The Law of the Case
{¶10} The doctrine of the law of the case “provides that the dеcision of a reviewing court in a case remains the law of the case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). Thus, “an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case.” Id. at syllabus.
{¶11} In Westlake II, this court held that following the Westlake I remand, a hearing on the merits had commenced, so Westlаke’s “notice of [voluntary] dismissal was ineffective and [the trial court] has jurisdiction to rule on Cleveland’s motion to strike, and to conduct the hearing mandated by this court.” Westlake II, 2018-Ohio-4797, ¶ 20-21. This court stated that “Cleveland is еntitled to have the trial court rule on its motion to strike and to move forward with
{¶12} In accordance with all of the foregoing, we cоnclude that the trial court erred in ruling that Westlake’s notice of voluntary dismissal “terminates this court’s jurisdiction” and rendered the motion to strike moot. The court mistakenly concluded that it lacked jurisdictiоn to rule on Cleveland’s motion to strike Westlake’s
{¶13} Cleveland’s sole assigned error is well taken.
{¶14} Reversed and remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds fоr 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 оf the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
LARRY A. JONES, SR., J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS
WITH SEPARATE OPINION ATTACHED
CITY OF WESTLAKE v. CITY OF CLEVELAND
No. 107222
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
April 18, 2019
2019-Ohio-1435
SEAN C. GALLAGHER, P.J.
{¶15} I concur with the majority opinion but write separately to clarify the disposition based on the particular facts of this case and in light of the writ of mandamus granted in State ex rel. Cleveland v. Shaughnessy, 8th Dist. Cuyahoga No. 107403, 2018-Ohio-4797 (“Westlake II”). In that original action, the respondent was ordered to conduct a hearing tо determine what constitutes reasonable notice to terminate the parties’ agreement. In granting that writ, however, it was explained that when given a mandate upon remand, if the trial court “mistakes or misconstrues the decree of this court, and does not give full effect to the mandate, its action may be controlled, either upon a new appeal (if involving a sufficient amount) оr by a writ of mandamus to execute the mandate of this court.” (Emphasis added.) Id. at ¶ 9, quoting State ex rel. Heck v. Kessler, 72 Ohio St.3d 98, 100-102, 647 N.E.2d 792 (1995). Under that rationale, no party has the right to both remedies, and nothing in today’s opinion should be interpreted otherwise. Althоugh this court considered the matter based on the briefing filed before the conclusion of the original action, I note that the resolution herein is limited to the unique circumstances of this case.