source: Caselaw Access Project

author: O'Connor, C.J.

license: Public Domain

text:
    BRONX PARK SOUTH III LANCASTER, L.L.C., et al., Appellants, v. FAIRFIELD COUNTY BOARD OF REVISION et al., Appellees.
    No. 2016-1468
    Supreme Court of Ohio.
    Submitted January 25, 2018 Decided April 25, 2018
    Siegel Jennings Co., L.P.A., Columbus, Victor Anselmo, J. Kieran Jennings, Cleveland, and Jason Lindholm, Columbus, for appellants.
    Rich & Gillis Law Group, L.L.C., Mark Gillis, Karol C. Fox, Dublin, and Kelley A. Gorry, for appellee Lancaster City School District Board of Education.
   O'Connor, C.J.

{¶ 1} This case involves the real-property valuation of a Walgreens drugstore in Lancaster for tax year 2014. The facts and procedural history of this case largely mirror those of Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision , 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916. As in Terraza , a school board seeks to have real property valued according to a recent arm's-length sale price, while the property owners, relying on appraisal evidence, contend that under R.C. 5713.03 as amended by 2012 Am.Sub.H.B. No. 487 ("H.B. 487"), a lease encumbrance precludes use of the sale price to value the property. The Board of Tax Appeals ("BTA") disregarded the owners' appraisal and valued the property according to the sale price. As in Terraza , we vacate the BTA's decision and remand the case for the BTA to weigh and address the appraisal evidence. See Terraza at ¶ 39.

Facts and Procedural History

{¶ 2} The subject property is a 13,650-square-foot drugstore situated on approximately 1.2 acres in Lancaster and owned by appellants, Bronx Park South III Lancaster, L.L.C., and Fairmont Lancaster, L.L.C. (collectively, "Bronx Park"). The building was constructed in 2004 and is leased to the Walgreen Company. The lease term, which began in 2004, is 75 years, the first 25 of which are fixed; every five years thereafter, the tenant has the option to terminate the lease. The tenant is responsible for all expenses, and the rental rate is fixed for the life of the lease at $27,500 per month ($24.18 per square foot).

{¶ 3} The Fairfield County auditor assessed the property at $1,084,660 for tax year 2014. Appellee Lancaster City School District Board of Education ("the BOE") complained to appellee Fairfield County Board of Revision ("the BOR") that the property should have been valued at $5,641,100, because that is what Bronx Park paid for it in July 2014. The BOR agreed and increased the property's valuation to $5,641,100. Bronx Park appealed to the BTA.

{¶ 4} At the BTA hearing, Bronx Park introduced the testimony and appraisal of Sara H. Coers, a member of the Appraisal Institute, who concluded that the sale price represented the value of the "leased fee," not the unencumbered fee-simple estate. Based on her interview of the attorney who represented Bronx Park during the sale, Coers reported that Bronx Park "was motivated by the cap[italization] rate for which the property could be acquired, including the quality of the tenant and the length of the lease in place."

{¶ 5} Coers also reported that the sale was a like-kind exchange under 26 U.S.C. 1031 and that representatives of Bronx Park had never been to the subject property or to Lancaster. She noted that Walgreens is a high-quality tenant, that the lease provides for a rental rate that is more than double the market rent, and that the term exceeds what is generally available in the market. She noted that "[t]he real property would not command this price if it were vacant, leased at market levels after exposure of the market, or occupied by a less creditworthy tenant or a tenant with a shorter remaining lease term."

{¶ 6} Using the cost, income, and sales-comparison approaches, Coers appraised the value of the "fee-simple interest as if unencumbered" at $1,660,000 as of January 1, 2014.

{¶ 7} The BTA refused to address the merits of the appraisal and retained the BOR's valuation of $5,641,100. Bronx Park appealed to this court.

Analysis

Standard of review

{¶ 8} We must affirm the BTA's decision if it is "reasonable and lawful." R.C. 5717.04. Because this appeal presents only legal issues, our review is de novo. Akron City School Dist. Bd. of Edn. v. Summit Cty. Bd. of Revision , 139 Ohio St.3d 92, 2014-Ohio-1588, 9 N.E.3d 1004, ¶ 10-11.

Constitutional issue

{¶ 9} Before examining the BTA's decision, we first must address the BOE's suggestion that the H.B. 487 amendments to R.C. 5713.03, which require the fee-simple estate to be valued "as if unencumbered," are unconstitutional.

{¶ 10} The BOE did not challenge the constitutionality of the amended statute until its appeal to this court, and its argument here is undeveloped. Although the BOE refers to the "Constitutional requirements" of valuation arising under Article XII, Section 2 of the Ohio Constitution, the BOE fails to articulate precisely how it believes R.C. 5713.03 violates that provision. When given an opportunity to explain its constitutional challenge at oral argument, the BOE's counsel referred only generally to a "constitutional definition" of "true value" that, the BOE says, requires reliance on a sale price. The BOE has not formulated a clear argument, and "[w]hile there may be exceptions, it is not generally the proper role of this court to develop a party's arguments," In re Application of Columbus S. Power Co. , 129 Ohio St.3d 271, 2011-Ohio-2638, 951 N.E.2d 751, ¶ 19.

{¶ 11} Under these circumstances, we decline to decide in this case whether R.C. 5713.03 as amended by H.B. 487 violates Article XII, Section 2 of the Ohio Constitution.

Remand for consideration of the appraisal evidence

{¶ 12} In Terraza , we held that "a recent arm's-length sale price is not conclusive evidence of the true value of property under R.C. 5713.03, as amended by H.B. 487." 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, at ¶ 30. Accordingly, when property was the subject of a recent arm's-length sale, the General Assembly has directed taxing authorities to consider not just the sale price but also any other evidence the parties present that is relevant to the value of the unencumbered fee-simple estate. See id. at ¶ 31-37.

{¶ 13} The parties do not dispute that the H.B. 487 amendments to the statute apply here, so this appeal presents a straightforward application of Terraza : the July 2014 sale presumptively represents the value of the unencumbered fee-simple estate, but the BTA must also weigh Bronx Park's appraisal evidence. See Terraza at ¶ 31-37. Because the BTA did not consider the appraisal evidence, we vacate the BTA's decision and remand the case for the BTA to weigh and address the evidence that was presented below, including the appraisal evidence. See id. at ¶ 39. The BTA should not permit the parties to submit new evidence on remand.

Decision vacated and cause remanded.

O'Donnell, French, Mock, Fischer, and DeWine, JJ., concur.

Kennedy, J., concurs in judgment only.

Russell J. Mock, J., of the First District Court of Appeals, sitting for O'Neill, J.


author: Per Curiam.

text:
    The STATE EX REL. O'MALLEY v. COLLIER-WILLIAMS, Judge.
    No. 2017-0346
    Supreme Court of Ohio.
    Submitted February 13, 2018 Decided August 9, 2018.
    Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kristen L. Sobieski and Christopher D. Schroeder, Assistant Prosecuting Attorneys, for relator.
    Zukerman, Daiker & Lear Co., L.P.A., Larry W. Zukerman, and S. Michael Lear, Cleveland, for respondent.
    Robert L. Tobik, Cuyahoga County Public Defender, and Jeffrey M. Gamso, Assistant Public Defender, for intervening respondent.
   Per Curiam.

{¶ 1} In this original action, relator, Cuyahoga County Prosecuting Attorney Michael C. O'Malley, seeks writs of prohibition and mandamus to prevent respondent, Cuyahoga County Common Pleas Court Judge Cassandra Collier-Williams, from empaneling a jury for intervening-respondent Kelly Foust's capital-murder resentencing hearing. We hold that Judge Collier-Williams patently and unambiguously lacks jurisdiction to empanel a jury for a resentencing hearing in a capital-murder case when the defendant has validly waived a jury trial. We therefore grant O'Malley a writ of prohibition and order Judge Collier-Williams to vacate her March 9, 2017 journal entry granting Foust's renewed motion for a capital resentencing hearing before a jury. We deny as moot O'Malley's request for a writ of mandamus.

I. Background

{¶ 2} In 2001, the Cuyahoga County Grand Jury indicted Foust on six counts of aggravated murder and 20 other felony counts. Each aggravated-murder count included six aggravating circumstances: one course-of-conduct specification and five felony-murder specifications for aggravated burglary, aggravated robbery, kidnapping, rape, and aggravated arson.

{¶ 3} Foust waived his right to a jury. A three-judge panel convicted him on five counts of aggravated murder and the related capital specifications, the lesser-included offense of murder, and some of the noncapital counts. Following a mitigation hearing, the panel unanimously determined that, beyond a reasonable doubt, the aggravating circumstances outweighed the mitigating circumstances and sentenced Foust to death. We affirmed Foust's convictions and death sentence on appeal. State v. Foust , 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836.

{¶ 4} In 2011, the United States Court of Appeals for the Sixth Circuit granted Foust a writ of habeas corpus, holding that his trial counsel's performance during the mitigation hearing was constitutionally ineffective. Foust v. Houk , 655 F.3d 524 (6th Cir.2011). The Sixth Circuit vacated Foust's death sentence and remanded his case to the trial court for a "new penalty-phase trial." Id. at 546.

{¶ 5} On remand in August 2012, the state asked the trial court to find that Foust's jury waiver applies to the new penalty-phase hearing and to schedule Foust's resentencing hearing before a three-judge panel. Judge Collier-Williams agreed. Almost a month later, Foust filed a motion requesting a jury for his penalty-phase hearing, which the state opposed. Judge Collier-Williams denied Foust's motion on April 4, 2013. The hearing was then postponed numerous times.

{¶ 6} On March 7, 2017, Foust filed a "renewed" motion for a penalty-phase hearing before a jury based on Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). Foust contended that Hurst represents a "dramatic change" in the law, guaranteeing "a capital defendant an unequivocal right to a jury determination of every fact necessary to impose a sentence of death." Foust also argued that he was entitled to withdraw his earlier jury waiver, citing State v. Davis , 139 Ohio St.3d 122, 2014-Ohio-1615, 9 N.E.3d 1031, for the proposition that "neither res judicata nor the law of the case precluded full consideration of the merits of a motion to withdraw a jury waiver for a new mitigation phase."

{¶ 7} Over the state's opposition, Judge Collier-Williams granted Foust's renewed motion for a jury on March 9, 2017. After reviewing "all the relevant matters including, but not limited to," Davis and Hurst , she made the following findings:

[T]he defendant has a 6th Amendment right to have the specific findings authorizing the imposition of the sentence of death to be made by a jury. Regardless of the fact that the defendant waived his right to a jury 16 years ago, that waiver does not supercede [sic] his right to now demand a jury for the mitigation phase of his case. This court further finds that R.C. 2929.06(B) does not prevent the defendant from demanding a jury. While the statute sets forth the procedure for the sentencing/mitigation phase, it does not strip the defendant of his constitutional right to demand a jury.
Finally, this court finds that the impaneling of a jury to hear this mitigation phase will not prejudice the state of Ohio. * * * Therefore, defendant's motion for jury is hereby granted.

{¶ 8} On March 10, 2017, O'Malley filed his complaint for writs of prohibition and mandamus. Judge Collier-Williams filed a motion to dismiss for failure to state a claim for relief in either prohibition or mandamus. Foust filed a motion to intervene as a respondent together with a motion to dismiss or for judgment on the pleadings. On July 26, 2017, we granted Foust's motion to intervene, denied Judge Collier-Williams's and Foust's motions to dismiss, and granted O'Malley an alternative writ. 150 Ohio St.3d 1405, 2017-Ohio-6964, 78 N.E.3d 907. O'Malley and Foust each filed a statement of facts and evidence, and Collier-Williams filed evidence.

II. Legal Analysis

A. Writ of Prohibition

{¶ 9} A writ of prohibition is an extraordinary remedy that is granted in limited circumstances "with great caution and restraint." State ex rel. Corn v. Russo , 90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001). O'Malley is entitled to the writ only upon a showing that (1) Judge Collier-Williams is about to exercise or has exercised judicial power, (2) her exercise of that power is unauthorized by law, and (3) denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of the law. State ex rel. Elder v. Camplese , 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. O'Malley need not establish the lack of an adequate remedy at law if Judge Collier-Williams's lack of jurisdiction is "patent and unambiguous." State ex rel. Vanni v. McMonagle , 137 Ohio St.3d 568, 2013-Ohio-5187, 2 N.E.3d 243, ¶ 6.

{¶ 10} In this case, the first element is not in dispute: Judge Collier-Williams clearly exercised judicial power by granting Foust's motion to revoke his jury waiver and to empanel a jury for his capital resentencing hearing.

1. Adequate Remedy

{¶ 11} Judge Collier-Williams and Foust contend that under R.C. 2945.67(A), which delineates when a prosecutor may appeal, O'Malley could have sought a discretionary appeal in the Eighth District Court of Appeals from the judge's order granting Foust's renewed motion to empanel a jury for his resentencing. Thus, they argue that O'Malley has an adequate remedy at law that precludes a writ of prohibition.

{¶ 12} O'Malley, on the other hand, contends that a discretionary appeal to the Eighth District pursuant to R.C. 2945.67(A) is not an adequate remedy, because that court has held that the state may seek leave to appeal only a final, appealable order, which Judge Collier-Williams's March 9, 2017 journal entry is not. He cites State v. Colon , 8th Dist. Cuyahoga No. 103150, 2016-Ohio-707, 2016 WL 763960, ¶ 11-12, 14, in which the Eighth District granted the state leave to appeal but later dismissed the case for lack of a final, appealable order. The court reasoned, "When ruling on the state's motion for leave to appeal, courts must consider R.C. 2945.67 in conjunction with R.C. 2505.02 and 2505.03(A)." Those provisions define a final order and provide instruction on the process for appeal. The court of appeals concluded that the state could seek leave to appeal only a final, appealable order. Id. at ¶ 11. We declined jurisdiction. 146 Ohio St.3d 1491, 2016-Ohio-5585, 57 N.E.3d 1171.

{¶ 13} For a remedy to be adequate, it must, among other things, be complete and beneficial. State ex rel. Smith v. Cuyahoga Cty. Court of Common Pleas , 106 Ohio St.3d 151, 2005-Ohio-4103, 832 N.E.2d 1206, ¶ 19. O'Malley argues that a discretionary appeal under R.C. 2945.67(A) is inadequate because it could never be beneficial in light of the Eighth District's ruling in Colon . But beneficial does not mean successful, and this court has held that failing to receive a favorable decision does not render the remedy inadequate. State ex rel. Nichols v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities , 72 Ohio St.3d 205, 209, 648 N.E.2d 823 (1995). O'Malley concedes as much, but maintains that because "the Eighth District categorically precludes the State from ever seeking leave to appeal" absent a final, appealable order and "does so specifically on jurisdictional grounds," his remedy is rendered inadequate.

{¶ 14} O'Malley's attempt to distinguish his case falls short. Despite the holding of Colon , he was not actually prevented from seeking leave to appeal Judge Collier-Williams's order. Had the Eighth District denied O'Malley leave to appeal the March 9, 2017 order, the state could have sought leave to appeal to this court. See S.Ct.Prac.R. 5.02 (jurisdictional appeals). It is well established that "a '[d]iscretionary right of appeal * * * [constitutes] a sufficiently plain and adequate remedy in the ordinary course of the law.' " State ex rel. Hardesty v. Williamson , 9 Ohio St.3d 174, 176, 459 N.E.2d 552 (1984), quoting State ex rel. Cleveland v. Calandra , 62 Ohio St.2d 121, 122, 403 N.E.2d 989 (1980).

{¶ 15} We have "consistently held that prohibition cannot be used as a substitute" when a discretionary appeal is available. Hardesty at 176, 459 N.E.2d 552. The "mere fact that this remedy may no longer be available because" the relator failed to pursue it "does not entitle [the relator] to the requested extraordinary relief in prohibition." State ex rel. Hamilton Cty. Bd. of Commrs. v. Hamilton Cty. Court of Common Pleas , 126 Ohio St.3d 111, 2010-Ohio-2467, 931 N.E.2d 98, ¶ 38.

2. Patent and Unambiguous Lack of Jurisdiction

{¶ 16} Although O'Malley has an adequate remedy at law, he may still be entitled to a writ of prohibition if Judge Collier-Williams patently and unambiguously lacks jurisdiction to act. State ex rel. State v. Lewis , 99 Ohio St.3d 97, 2003-Ohio-2476, 789 N.E.2d 195, ¶ 18.

{¶ 17} Judge Collier-Williams argues that she has basic subject-matter jurisdiction over Foust's resentencing pursuant to R.C. 2931.03. Quoting Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, she contends that empaneling a jury for Foust's resentencing, despite his prior valid jury waiver, would be at most an error in the exercise of jurisdiction and therefore not appropriate for a writ of prohibition. Indeed, Ohio courts of common pleas do have "original jurisdiction of all crimes and offenses." R.C. 2931.03. But contrary to the judge's claims, "the mere fact that the Ohio court has basic statutory jurisdiction to determine" a case or class of cases "does not preclude a more specific statute * * * from patently and unambiguously divesting the court of such jurisdiction." Rosen v. Celebrezze , 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 46.

{¶ 18} There is such a specific statute here. When a capital offender's death sentence is invalidated by a federal or state court and a resentencing is ordered, R.C. 2929.06(B) controls. That provision states: "If the offender was tried by a jury, the trial court shall impanel a new jury for the hearing. If the offender was tried by a panel of three judges, that panel or, if necessary, a new panel of three judges shall conduct the hearing." (Emphasis added.) We have " 'consistently interpreted' the word 'shall' in a legislative enactment 'to make mandatory the provision in which it is contained, absent a clear and unequivocal intent that it receive a construction other than its ordinary meaning.' " State ex rel. Stewart v. Russo , 145 Ohio St.3d 382, 2016-Ohio-421, 49 N.E.3d 1272, ¶ 13, quoting State v. Palmer , 112 Ohio St.3d 457, 2007-Ohio-374, 860 N.E.2d 1011, ¶ 19.

{¶ 19} Neither Judge Collier-Williams nor Foust contends that R.C. 2929.06(B) is ambiguous. Instead, quoting Hurst , --- U.S. ----, 136 S.Ct. at 619, 193 L.Ed.2d 504, Judge Collier-Williams claims that the statute is invalid because the United States Supreme Court "unequivocally held that '[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.' "

{¶ 20} But we have already rejected this interpretation of Hurst . In State v. Mason , 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, ¶ 42, we observed that nothing in Hurst requires that "the jury alone [must] decide whether a sentence of death will be imposed" and held that Ohio's death-penalty scheme does not violate the Sixth Amendment. Moreover, State v. Belton , 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, presents a factual scenario similar to the one in the capital case underlying this original action and stands for the proposition that neither Hurst nor the Sixth Amendment requires a jury for a capital sentencing hearing when a defendant has waived his right to a jury for the trial phase . Id. at ¶ 61 ("when a capital defendant in Ohio elects to waive his or her right to have a jury determine guilt, the Sixth Amendment does not guarantee the defendant a jury at the sentencing phase of trial").

{¶ 21} Judge Collier-Williams contends that Belton does not control the outcome in this case, because she "invalidated defendant Foust's jury waiver and/or permitted defendant Foust to withdraw his jury waiver." But a defendant cannot withdraw his jury waiver after the trial has commenced. See R.C. 2945.05 ("[Jury] waiver may be withdrawn by the defendant at any time before the commencement of the trial"); State v. Frohner , 150 Ohio St. 53, 80 N.E.2d 868 (1948), paragraph five of the syllabus. There is no authority for the proposition that this rule ceases to apply when a case is remanded solely for resentencing. To the contrary, by seeking to withdraw his jury waiver for purposes of his resentencing hearing, Foust is essentially trying to achieve what Belton could not: to have a panel of judges for the guilt phase and a jury for the sentencing phase.

{¶ 22} Alternatively, Foust argues that he cannot continue to be bound by his original jury waiver because Davis , he claims, "acknowledged" that " 'one cannot knowingly waive rights in connection with an unanticipated second trial.' " Davis , 139 Ohio St.3d 122, 2014 -Ohio-1615, 9 N.E.3d 1031, at ¶ 38, quoting State v. Campbell , 414 N.J.Super. 292, 298, 998 A.2d 500 (App.Div.2010). But in Davis , we cited Campbell only to reject this argument:

Davis's argument that his 1984 [jury] waiver could not be knowing and intelligent when applied to his 2009 resentencing because of changed circumstances appears to require that a defendant waiving a jury trial possess more information than courts have usually held sufficient for a knowing and intelligent jury waiver.

Davis at ¶ 41.

{¶ 23} O'Malley asserts that Judge Collier-Williams patently and unambiguously lacks jurisdiction to create "a hybrid, nonstatutory sentencing procedure," which she did when she granted Foust's renewed motion to empanel a jury for his resentencing. He correctly states that the applicable statutes require a three-judge panel to conduct a new mitigation hearing following a remand when a capital defendant has waived a jury for the guilt phase. See R.C. 2929.03(C)(2)(b)(i) (imposing sentence for a capital offense) and 2929.06(B) (resentencing after sentence of death is set aside). If we were to allow Judge Collier-Williams to proceed by empaneling a jury, the state would be prevented by double jeopardy from appealing the outcome of that resentencing.

{¶ 24} We have previously held that a court patently and unambiguously lacked jurisdiction to convene a jury for sentencing in a noncapital case in which the defendant had waived his right to a jury trial. See State ex rel. Mason v. Griffin , 104 Ohio St.3d 279, 2004-Ohio-6384, 819 N.E.2d 644. In Griffin , we granted a writ of prohibition to stop a trial court from holding a noncapital sentencing hearing before a jury, purportedly to comply with Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We granted the requested writ because "[n]either the Ohio Constitution nor any statute authorizes Judge Griffin to conduct a jury sentencing hearing." Griffin at ¶ 15. Thus, the trial court patently and unambiguously lacked jurisdiction to order "a hybrid procedure * * * that is not sanctioned by any current or former version of a statute." Id. at ¶ 17.

{¶ 25} Accordingly, because O'Malley has established that Judge Collier-Williams patently and unambiguously lacked jurisdiction to invalidate Foust's previous jury waiver and empanel a jury for his resentencing hearing, we grant the requested writ of prohibition.

B. Writ of Mandamus

{¶ 26} Our issuing O'Malley a writ of prohibition renders his mandamus claim moot. See State ex rel. Morenz v. Kerr , 104 Ohio St.3d 148, 2004-Ohio-6208, 818 N.E.2d 1162, ¶ 35-37 (issuance of a writ of prohibition renders mandamus claim moot).

III. Conclusion

{¶ 27} We grant O'Malley a writ of prohibition because Judge Collier-Williams patently and unambiguously lacks jurisdiction to empanel a jury for Foust's capital resentencing hearing. Accordingly, we order Judge Collier-Williams to vacate the March 9, 2017 journal entry granting Foust's renewed motion for a capital resentencing hearing before a jury and to conduct that hearing before a three-judge panel. We deny as moot O'Malley's request for a writ of mandamus.

Writ of prohibition granted.

O'Connor, C.J., and O'Donnell, French, Fischer, and DeGenaro, JJ., concur.

Kennedy and DeWine, JJ., concur in judgment only.


text:
    The STATE EX REL. SPONAUGLE, Appellant, v. HEIN, Judge, Appellee, et al.
    No. 2017-0607
    Supreme Court of Ohio.
    Submitted February 13, 2018 Decided August 9, 2018
    Andrew M. Engel Co., L.P.A., and Andrew M. Engel, Dayton, for appellant.
    R. Kelly Ormsby III, Darke County Prosecuting Attorney, and Margaret B. Hayes, Assistant Prosecuting Attorney, for appellee.
   Per Curiam.

{¶ 1} Appellant, Steven Sponaugle, appeals the judgment of the Second District Court of Appeals denying his complaint for writs of prohibition and procedendo against appellee, Darke County Court of Common Pleas Judge Jonathan P. Hein. For the reasons set forth below, we affirm the judgment of the court of appeals.

Background

The foreclosure action

{¶ 2} Sponaugle and his wife, Karen Sponaugle, were the defendants in Farmers State Bank v. Sponaugle , Darke C.P. No. 13-CV-00610, a residential foreclosure action assigned to Judge Hein. On January 12, 2016, Judge Hein issued a "Judgment Entry - Decree of Foreclosure." Sponaugle timely appealed the foreclosure decree to the Second District Court of Appeals.

{¶ 3} While the appeal was pending, the Sponaugles filed a Civ.R. 62 motion for a stay of execution. Judge Hein granted the motion, subject to the Sponaugles' posting a supersedeas bond. The Sponaugles failed to post the bond, so no stay went into effect.

{¶ 4} On February 26, 2016, Farmers State Bank purchased the property at a sheriff's sale. On March 10, after the auction but before confirmation of the sale, the court of appeals issued a show-cause order, questioning whether the judgment entry was a final, appealable order. Based on the show-cause order, the Sponaugles filed a motion asking Judge Hein to vacate the foreclosure sale.

{¶ 5} On April 18, 2016, the court of appeals dismissed the Sponaugles' appeal for lack of a final, appealable order. Farmers State Bank v. Sponaugle , 2d Dist. Darke No. 16 CA 000002. The court of appeals held that the foreclosure judgment was not final because it did not determine the amounts due on all liens.

{¶ 6} Three days later, on April 21, Judge Hein issued a judgment entry granting Farmers State Bank's motion for confirmation of the sale and denying the Sponaugles' motion to vacate the sale. In a separate entry, dated the same day, Judge Hein issued an order confirming the sale and ordering distribution of the proceeds.

{¶ 7} The Sponaugles appealed the confirmation order and filed a motion in the trial court for a stay pending appeal. Judge Hein denied the stay motion on July 11, 2016. On the same day, Farmers State Bank submitted a praecipe to the clerk of courts requesting that a writ of possession be issued to the county sheriff. The clerk of courts issued the writ, and the sheriff executed it, thereby removing the Sponaugles from the property.

The prohibition action

{¶ 8} Based on these facts, Sponaugle filed a complaint in the Second District Court of Appeals, seeking writs of prohibition and procedendo against Judge Hein, Darke County Clerk of Courts Cindy Pike, and Darke County Sheriff Toby L. Spencer. Sponaugle later voluntarily dismissed his claims against Pike and Sheriff Spencer.

{¶ 9} On March 23, 2017, the court of appeals issued a decision and judgment entry sua sponte dismissing the procedendo cause of action for failure to state a claim. In the same decision, the court of appeals granted Judge Hein's motion to dismiss the prohibition claim on the grounds that Judge Hein did not patently and obviously lack jurisdiction to proceed in the foreclosure case and that Sponaugle had an adequate remedy in the ordinary course of law by way of appeal. The court denied Sponaugle's motion for summary judgment and denied Judge Hein's cross-motion for summary judgment as moot.

{¶ 10} On May 5, 2017, Sponaugle appealed to this court.

Appeal from the confirmation order

{¶ 11} On June 16, 2017, while Sponaugle's appeal in the prohibition action was being briefed in this court, the court of appeals issued its decision in the Sponaugles' appeal from the confirmation order. Farmers State Bank v. Sponaugle , 2017-Ohio-4322, 92 N.E.3d 355 (2d Dist.). The court of appeals "conclude[d] that the trial court erred when, in the absence of a final appealable decree of foreclosure, it denied the Sponaugles' motion to vacate the February 26 sale and confirmed the sale of the Sponaugles' property." Id . at ¶ 31. It remanded the case to the trial court with instructions to vacate the confirmation of sale and order that the deed be returned to the Sponaugles. Id . at ¶ 33. The bank appealed, and on February 28, 2018, this court accepted jurisdiction over two propositions of law. Farmers State Bank v. Sponaugle , 152 Ohio St.3d 1405, 2018-Ohio-723, 92 N.E.3d 878.

The parties' briefs in this action

{¶ 12} The court of appeals' June 2017 decision raised the prospect that Sponaugle's prohibition claim before this court had become moot. In his merit brief, Sponaugle specifically argues that that decision did not obviate his need for a writ of prohibition. He notes that enforcing the mandate would be difficult:

At this point, although the Court of Appeals ordered that the "deed be returned" to Mr. Sponaugle, it is unclear how Judge Hein will accomplish that task without jurisdiction over the third-party purchaser. Mr. Sponaugle is left with the prospect of litigating his right to title to and possession of real estate that the Court of Appeals has declared is his.

{¶ 13} In response, Judge Hein argues that Sponaugle lacks standing and that a writ of prohibition should not issue because the judge does in fact have jurisdiction over the foreclosure case. But Judge Hein does not mention the court of appeals' June 2017 decision, much less consider its impact on this case.

{¶ 14} In his reply brief, Sponaugle indicates that the Second District has issued another decision in the appeal from the confirmation order, upon a motion for reconsideration. As Sponaugle explains, the court of appeals, recognizing the problem caused by the subsequent sale of the property, has amended its order of relief:

In its application for reconsideration, The Farmers State Bank indicates that it conveyed the property on October 3, 2016, to third parties. * * * Neither party informed us of this conveyance at oral argument.
We recognize the legal quagmire that the parties and the trial court now face, particularly due to the October 2016 sale of the property. However, we find no obvious error in our ruling, based on the information that was before us when we rendered our Opinion and Judgment.
Nevertheless, we find our remand language in paragraph 33 to be imprecise and that additional instruction is warranted. Accordingly, we modify paragraph 33 of our Opinion to read:
The trial court's judgment confirming the sale will be reversed, and the matter will be remanded for further proceedings. On remand, the trial court is instructed to vacate the confirmation of sale and, upon the entry of a final appealable judgment and decree of foreclosure, the trial court may again order the sale of the property. The trial court may determine the possessory interests of the parties pending the entry of a final appealable order, the sale of the property, and a new confirmation of sale.

Farmers State Bank v. Sponaugle , 2d Dist. Darke No. 2016-CA-4, 2017-Ohio-7744, 2017 WL 4220068, *4-5.

{¶ 15} Sponaugle attached to his reply brief two additional filings from the foreclosure case. On September 7, 2017, Judge Hein issued an order on his own motion to preserve the status quo by declaring that ownership and occupancy of the real estate "shall remain with the recent purchasers, Scott Stastny and Brandi Stastny," to the exclusion of all others. And on September 11, he issued a notice that he would wait to rule on all pending motions "until a more appropriate time vis a vis appellate procedures."

{¶ 16} Along with his reply brief, Sponaugle also filed a motion for oral argument.

Analysis

{¶ 17} Sponaugle seeks two forms of relief: a writ of procedendo and a writ of prohibition.

Procedendo

{¶ 18} In his complaint, Sponaugle identified Judge Hein by name in only one portion of his prayer for relief: he asked for a writ of procedendo directing Judge Hein to vacate the April 21, 2016 confirmation order. The court of appeals correctly dismissed the procedendo claim as seeking the wrong form of relief. "A writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment." State ex rel. Miley v. Parrott , 77 Ohio St.3d 64, 65, 671 N.E.2d 24 (1996). In this case, procedendo is inappropriate because Sponaugle seeks to undo a court order, not to compel Judge Hein to issue a ruling. See, e.g. , State ex rel. Utley v. Abruzzo , 17 Ohio St.3d 203, 204, 478 N.E.2d 789 (1985) (noting that a writ of procedendo will issue to compel of a judgment but not to direct what the judgment should be). We affirm the dismissal of the procedendo claim.

Prohibition

{¶ 19} The complaint also requested a writ of prohibition to bar all three original respondents from (1) "taking any action to execute on" the January 12, 2016 judgment entry of foreclosure, (2) "taking any action to enforce" the confirmation order, and (3) "taking any action in furtherance of" the writ of possession.

{¶ 20} Sponaugle did not clearly request a writ of prohibition to vacate the confirmation order. But even if he had sought to undo the confirmation order through a writ of prohibition, that request would be moot, because the court of appeals has already vacated the confirmation order. See State ex rel. Consumers' Counsel v. Pub. Util. Comm. , 102 Ohio St.3d 301, 2004-Ohio-2894, 809 N.E.2d 1146, ¶ 12 (holding that a suit to prevent the Public Utilities Commission from granting applications for rehearing became moot when the commission denied the applications).

{¶ 21} Notwithstanding the decisions of the court of appeals, Sponaugle contends that a live controversy continues to exist because he remains dispossessed from his home. Assuming this to be true, however, we hold that he has failed to state a claim in prohibition.

{¶ 22} Sponaugle cannot attack the writ of possession directly through a prohibition claim because Judge Hein did not issue the writ of possession, and a sheriff who executes such a writ is not exercising judicial authority. See Novak v. McFaul , 8th Dist. Cuyahoga No. 77132, 1999 WL 1000698, *2 (Oct. 26, 1999) ("Issuing an eviction notice or effecting a writ of possession is an administrative act and not a judicial act"). So instead, Sponaugle's present theory of the case is that the writ of possession was issued in reliance on the confirmation order and if Judge Hein lacked jurisdiction to confirm the sale, then he should be responsible for curing all the downstream harm caused thereby.

{¶ 23} In order for a writ of prohibition to issue against Judge Hein, Sponaugle must demonstrate that Judge Hein has exercised judicial power or is about to do so, that he lacks authority to exercise that power, and that denying the writ would result in injury for which no adequate remedy exists in the ordinary course of the law. State ex rel. Elder v. Camplese , 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. However, if Judge Hein patently and unambiguously lacks jurisdiction, then Sponaugle need not satisfy the third requirement, the lack of an adequate remedy at law. State ex rel. Sapp v. Franklin Cty. Court of Appeals , 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15.

{¶ 24} Typically, a court will deny relief in prohibition when a respondent judge has general subject-matter jurisdiction and will deem any error by the judge to be an error in the exercise of jurisdiction. See, e.g. , Salloum v. Falkowski , 151 Ohio St.3d 531, 2017-Ohio-8722, 90 N.E.3d 918, ¶ 10 (affirming denial of writ of prohibition when judge had jurisdiction to rule on motion to modify child-support order);

State ex rel. Estate of Hards v. Klammer , 110 Ohio St.3d 104, 2006-Ohio-3670, 850 N.E.2d 1197, ¶ 14 (failure to assess costs under Civ.R. 54(D) was, at most, error in exercise of jurisdiction). Sponaugle contends that a writ of prohibition is nevertheless available against judges who have general subject-matter jurisdiction if they, within the exercise of that jurisdiction, issue orders that exceed their power.

{¶ 25} A writ of prohibition is proper even when the respondent judge has general jurisdiction when the judge has taken an action that exceeds the bounds of the court's statutory authority. For example, R.C. 2743.02(F) vests the common pleas court with jurisdiction to hear suits against state officials alleging that they acted outside the scope of their employment but only after such a suit is first filed in the Court of Claims for a determination as to the official's immunity. Because an immunity determination is a statutory prerequisite to the common pleas court's jurisdiction, we have held that the common pleas court's exercise of jurisdiction over the merits of a suit against a state official was unauthorized by law until the Court of Claims made an immunity determination. State ex rel. Sanquily v. Lucas Cty. Court of Common Pleas , 60 Ohio St.3d 78, 79, 573 N.E.2d 606 (1991). Similarly, in State ex rel. Adams v. Gusweiler , 30 Ohio St.2d 326, 285 N.E.2d 22 (1972), the common pleas court was asked to appoint an arbitrator to enforce the terms of an arbitration agreement. But the dispute had already been heard by an arbitrator, and the agreement in question specified that the arbitrator's decision would be final. On those facts, we held that the common pleas court was "without jurisdiction to appoint a second arbitrator." Id. at 328, 285 N.E.2d 22.

{¶ 26} Most recently, we issued a writ of prohibition to block a common pleas court judge from taking any further action in a number of medical-malpractice cases that he had transferred from the dockets of other judges to his own, holding that he had transferred the cases in violation of the court rules governing case consolidation. State ex rel. Durrani v. Ruehlman , 147 Ohio St.3d 478, 2016-Ohio-7740, 67 N.E.3d 769. We held that the judge lacked jurisdiction to consolidate the cases because under the rules governing transfer and consolidation of cases, the administrative judge had exclusive authority to order transfers, the cases had to be transferred to the judge to whom the case with the lowest case number had been assigned, and the mandatory preconsolidation hearing had not been held. Id. at ¶ 17-26.

{¶ 27} Sponaugle relies on Sanquily , Adams , and Durrani to support his entitlement to the writ. But for these precedents to be relevant, Sponaugle would have to demonstrate that the statute vesting the common pleas court with jurisdiction to issue a confirmation of sale, R.C. 2329.31, makes the existence of a final foreclosure order a jurisdictional prerequisite.

{¶ 28} R.C. 2329.31(A) requires the court, upon the return of the writ of execution for any relevant sale, to order an entry on the journal confirming the sale "if the court of common pleas finds that the sale was made, in all respects, in conformity with sections 2329.01 to 2329.61 of the Revised Code." The requirements of those sections include, for example, public notice prior to a sale ( R.C. 2329.26 and 2329.27 ), a minimum sale price of two-thirds the amount of the appraised value ( R.C. 2329.20 ), and the submission of identifying information by the purchaser ( R.C. 2329.271 ). Although the statutes logically assume the existence of a final foreclosure entry, they do not impose upon the trial court an affirmative duty to confirm the existence of an order prior to entering the confirmation of sale. The precedents relied on by Sponaugle are therefore not relevant.

{¶ 29} Sponaugle has not demonstrated that Judge Hein patently and obviously lacked jurisdiction. When jurisdiction is not patently and obviously absent, " 'an appeal is generally considered an adequate remedy in the ordinary course of law sufficient to preclude a writ.' " State ex rel. Evans v. McGrath , 151 Ohio St.3d 529, 2017-Ohio-8707, 90 N.E.3d 916, ¶ 7, quoting Shoop v. State , 144 Ohio St.3d 374, 2015-Ohio-2068, 43 N.E.3d 432, ¶ 8. Sponaugle contends that an appeal was an inadequate remedy because the Sponaugles' appeal afforded them incomplete relief: the court of appeals could not restore the property because it did not have jurisdiction over the purchasers. But if the rights of the third-party purchasers were an impediment to the court of appeals restoring the house, they remain just as much an obstacle to complete relief in this court.

{¶ 30} Sponaugle is not entitled to a writ of prohibition because he had an adequate remedy at law.

The motion for oral argument

{¶ 31} We have discretion to grant oral argument, and in exercising that discretion, we will consider whether the case involves a matter of great public importance, complex issues of law or fact, a substantial constitutional issue, or a conflict among courts of appeals. State ex rel. Davis v. Pub. Emps. Retirement Bd. , 111 Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 444, ¶ 15. Oral argument is not warranted here because most of the case is moot and the issues presented all turn on familiar principles of prohibition. Moreover, given that Judge Hein is refraining from taking any steps to comply with the orders of the court of appeals until this case is resolved, we believe that additional delay for oral argument would be a disservice to all the parties. We therefore deny the motion.

Judgment affirmed.

O'Connor, C.J., and O'Donnell, French, Fischer, DeWine, and DeGenaro, JJ., concur.

Kennedy, J., concurs in judgment only.


text:
    IN RE PLESICH.
    No. 2018-0821
    Supreme Court of Ohio.
    Submitted June 12, 2018 Decided June 15, 2018
    {¶ 1} On June 12, 2018, and pursuant to Gov.Bar R. V(18), the director of the Board of Professional Conduct filed with the Supreme Court a certified copy of a judgment entry of a felony conviction against Gregory Thomas Plesich, an attorney licensed to practice law in the state of Ohio.
    {¶ 2} Upon consideration thereof and pursuant to Gov.Bar R. V(18)(A)(4), it is ordered and decreed that Gregory Thomas Plesich, Attorney Registration No. 0007642, last known business address in Akron, Ohio, is suspended from the practice of law for an interim period, effective as of the date of this entry.
    {¶ 3} It is further ordered that this matter is referred to disciplinary counsel for investigation and the commencement of disciplinary proceedings.
    {¶ 4} It is further ordered that respondent immediately cease and desist from the practice of law in any form and that respondent is forbidden to appear on behalf of another before any court, judge, commission, board, administrative agency, or other public authority.
    {¶ 5} It is further ordered that effective immediately, respondent is forbidden to counsel, advise, or prepare legal instruments for others or in any manner perform legal services for others.
    {¶ 6} It is further ordered that respondent is divested of each, any, and all of the rights, privileges, and prerogatives customarily accorded to a member in good standing of the legal profession of Ohio.
    {¶ 7} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 8} It is further ordered that pursuant to Gov.Bar R. X(13), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month, of the suspension. As part of the total credit hours of continuing legal education required by Gov.Bar R. X(13), respondent shall complete one credit hour of instruction related to professional conduct required by Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the suspension.
    {¶ 9} It is further ordered that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio, (2) respondent complies with this and all other orders issued by this court, (3) respondent complies with the Supreme Court Rules for the Government of the Bar of Ohio, and (4) this court orders respondent reinstated.
    {¶ 10} It is further ordered by the court that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded by the Lawyers' Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of this order, the Lawyers' Fund for Client Protection awards any amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers' Fund for Client Protection within 90 days of the notice of that award.
    {¶ 11} It is further ordered that on or before 30 days from the date of this order, respondent shall do the following:
    {¶ 12} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's suspension and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal services elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 13} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 14} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid and account for any trust money or property in respondent's possession or control;
    {¶ 15} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of respondent's disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
   {¶ 16} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;

{¶ 17} 6. File with the clerk of this court and disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of the notices required herein, and setting forth the address where the affiant may receive communications; and {¶ 18} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.

{¶ 19} It is further ordered that respondent shall keep the clerk and disciplinary counsel advised of any change of address where respondent may receive communications.

{¶ 20} It is further ordered that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings. All case documents are subject to Sup.R. 44 through 47, which govern access to court records.

{¶ 21} It is further ordered that service shall be deemed made on respondent by sending this order, and all other orders in this case, to respondent's last known address.

{¶ 22} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    IN RE RESIGNATION OF SKELTON.
    No. 2018-0924
    Supreme Court of Ohio.
    Submitted July 18, 2018 Decided July 26, 2018
    {¶ 1} James Ralph Skelton, Attorney Registration No. 0067828, last known business address in Independence, Ohio, who was admitted to the bar of this state on May 16, 1997, submitted an application for retirement or resignation pursuant to Gov.Bar R. VI(11). The application was referred to disciplinary counsel pursuant to Gov.Bar R. VI(11)(B). On June 29, 2018, the Office of Attorney Services filed disciplinary counsel's report, under seal, with this court in accordance with Gov.Bar R. VI(11)(B)(2).
    {¶ 2} On consideration thereof, it is ordered by the court that pursuant to Gov.Bar R. VI(11)(C), the resignation as an attorney and counselor at law is accepted as a resignation with disciplinary action pending.
    {¶ 3} It is further ordered and adjudged that from and after this date all rights and privileges extended to respondent to practice law in the state of Ohio be withdrawn, that henceforth respondent shall cease to hold himself forth as an attorney authorized to appear in the courts of this state, and that respondent shall not attempt, either directly or indirectly, to render services as an attorney or counselor at law to or for any individuals, corporation, or society, nor in any way perform or seek to perform services for anyone, no matter how constituted, that must by law be executed by a duly appointed and qualified attorney within the state of Ohio.
    {¶ 4} It is further ordered that respondent desist and refrain from the practice of law in any form, either as principal or agent or clerk or employee of another, and hereby is forbidden to appear in the state of Ohio as an attorney and counselor at law before any court, judge, board, commission, or other public authority, and hereby is forbidden to give another an opinion as to the law or its application or advise with relation thereto.
    {¶ 5} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 6} It is further ordered that respondent shall not enter into an employment, contractual, or consulting relationship with an attorney or law firm with which respondent was associated as a partner, shareholder, member, or employee at the time respondent engaged in the misconduct that resulted in this acceptance of respondent's resignation with discipline pending.
    {¶ 7} It is further ordered that respondent shall surrender respondent's certificate of admission to practice to the clerk of the court on or before 30 days from the date of this order and that respondent's name be stricken from the roll of attorneys maintained by this court.
    {¶ 8} It is further ordered by the court that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded against respondent by the Lawyers' Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of this order the Lawyers' Fund for Client Protection awards any amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers' Fund for Client Protection within 90 days of the notice of that award.
    {¶ 9} It is further ordered that on or before 30 days from the date of this order, respondent shall do the following:
    {¶ 10} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's resignation and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal services elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 11} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 12} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid and account for any trust money or property in the possession or control of respondent;
    {¶ 13} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of respondent's disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
    {¶ 14} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;
    {¶ 15} 6. File with the clerk of this court and disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of the notices required herein, and setting forth the address where respondent may receive communications; and
    {¶ 16} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.
    {¶ 17} It is further ordered that on or before 30 days from the date of this order, respondent shall surrender the attorney-registration card for the 2017/2019 biennium.
    {¶ 18} It is further ordered that until such time as respondent fully complies with this order, respondent shall keep the clerk and disciplinary counsel advised of any change of address where respondent may receive communications.
    {¶ 19} It is further ordered that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings. All case documents are subject to Sup.R. 44 through 47, which govern access to court records.
    {¶ 20} It is further ordered that service shall be deemed made on respondent by sending this order and all other orders in this case to respondent's last known address.
    {¶ 21} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    ADMINISTRATIVE ACTIONS
    Supreme Court of Ohio.
    October 8, 2018
    1. Proposed amendments to the Rules of Superintendence for the Courts of Ohio ( Sup.R. 80, 84, 85, 86, 87, and 89 ) are being published in the October 8, 2018 Ohio Official Reports advance sheet for a public-comment period ending November 7, 2018.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concurred in publishing the proposed amendments for comment.
    2. Proposed amendments to the Rules of Practice of the Supreme Court of Ohio (Sup.Ct.Prac.R. 3.03) are being published in the October 8, 2018 Ohio Official Reports advance sheet for a public-comment period ending November 7, 2018.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concurred in publishing the proposed amendments for comment.


text:
    STATE EX REL. HOWARD v. TURNER
    2018-0824
    Supreme Court of Ohio.
    October 5, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellees' motion to strike. Motion denied. Appellees are ordered to file their merit brief within 15 days. Appellant is ordered to serve on appellees a complete and accurate copy of the brief that was filed in this case within ten days.


text:
    STATE EX REL. BOLZENIUS v. PRIESSE
    2018-1221
    Supreme Court of Ohio.
    October 5, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.
    O'Connor, C.J., and Fischer, J., dissent.


author: O'Connor, C.J., dissents.

text:
    STATE EX REL. TWITCHELL v. SAFERIN
    2018-1238
    Supreme Court of Ohio.
    October 5, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.
   O'Connor, C.J., dissents.


text:
    IN RE APPLICATION OF BLACK FORK WIND ENERGY, L.L.C.
    2018-1134
    Supreme Court of Ohio.
    October 5, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On consideration of Black Fork Wind Energy, L.L.C.'s motion for leave to intervene as appellee. Motion granted.


text:
    IN RE Resignation of SKELTON
    2018-0924
    Supreme Court of Ohio.
    October 4, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    Sua sponte, James Ralph Skelton, Attorney Registration No. 0067828, last known business address in Independence, Ohio, found in contempt for failure to surrender his attorney-registration card, failure to surrender his certificate of admission, and failure to file an affidavit of compliance on or before August 27, 2018.


text:
    HYDEN v. RUEHLMAN
    2018-0820
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Procedendo. On motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE EX REL. FETHEROLF v. SHAW
    2018-0928
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Prohibition. On motion to dismiss amended complaint. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE EX REL. WARE v. MOHR
    2018-1013
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On motion to dismiss or in the alternative motion for summary judgment. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, and DeGenaro, JJ., concur.
    DeWine, J., dissents and would grant an alternative writ.


text:
    STATE EX REL. WHITAKER v. ODA
    2018-1044
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE EX REL. KERR v. REGER
    2018-1063
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Prohibition. On motion to dismiss complaint. Motion granted. Cause dismissed. Motion to have relator declared a vexatious litigator denied.
    O'Connor, C.J., and O'Donnell, Kennedy, and French, JJ., concur.
   Fischer, DeWine, and DeGenaro, JJ., concur in granting the motion to dismiss and would also grant the motion to have relator declared a vexatious litigator.


text:
    APPENZELLER v. MOHR
    2018-1190
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Habeas Corpus. Sua sponte, cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE v. HENDERSON
    1987-0447
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellee's motion to set execution date. Motion granted. Jerome Henderson's sentence shall be carried into execution by the warden of the Southern Ohio Correctional Facility or, in his absence, by the deputy warden on Thursday, September 14, 2023, in accordance with the statutes so provided.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    SIMS v. MARQUIS
    2018-0868
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Habeas Corpus. Sua sponte, cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE EX REL. WARE v. MONTGOMERY CTY. CLERK OF COURTS
    2018-1012
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, Fischer, and DeWine, JJ., concur.
    French and DeGenaro, JJ., dissent and would grant an alternative writ.


text:
    STATE EX REL. HERRING v. WAINRIGHT
    2018-1210
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Habeas Corpus. Sua sponte, cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE EX REL. DEBRUYNE v. LUCAS CTY. COURT OF COMMON PLEAS, Juvenile Div.
    2018-0941
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Prohibition. On answer of respondents and respondents' motion for judgment on the pleadings. Motion denied. Sua sponte, alternative writ granted. The following briefing schedule is set for presentation of evidence and filing of briefs pursuant to S.Ct.Prac.R. 12.05: The parties shall file any evidence they intend to present within 20 days, relator shall file a brief within 10 days after the filing of the evidence, respondent shall file a brief within 20 days after the filing of relator's brief, and relator may file a reply brief within 7 days after the filing of respondent's brief.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    CLINE v. YOSS
    2018-1032
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    In Mandamus. On motion to dismiss. Motion granted. Cause dismissed.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    ACKERMAN v. BANK OF NEW YORK MELLON
    2017-0385
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   Miscellaneous case. On emergency motion for stay and supersedeas bond waiver. Motion denied.


author: Fischer, J., dissents.

text:
    STATE v. DAVIDSON
    2018-1189
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion denied.

Fischer, J., dissents.


author: DeGenaro, J., not participating.

text:
    STATE v. DENNIS
    2018-1011
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    STATE v. HUNT
    2018-1019
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. POTTS
    2018-1026
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. KOLVEK
    2018-1070
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. RAMIREZ
    2018-1174
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. PORTER
    2018-1181
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. WOOD
    2018-1156
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE EX REL. O'MALLEY v. COLLIER-WILLIAMS
    2017-0346
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.


text:
    TESAR INDUS. CONTRS., INC. v. REPUBLIC STEEL
    2018-1180
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for stay of judgment pending appeal. Motion granted and supersedeas bond continued.

O'Connor, C.J., and French and DeWine, JJ., dissent.


text:
    STATE v. BOZSO
    2018-1007
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Appeal accepted. Cause held for 2017-0915, State v. Romero, and briefing scheduled stayed.
    O'Connor, C.J., and O'Donnell, J., would not hold the appeal and would order briefing to proceed.
    Kennedy, J, dissents.


text:
    STATE v. MOORE
    2017-0483
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.
    Anita Laster Mays, J., of the Eighth District Court of Appeals, sitting for O'Neill, J.


text:
    STATE v. BLANTON
    2018-0655
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.


text:
    BARTON v. CUYAHOGA CTY.
    2018-0659
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.


text:
    STATE EX REL. MCBROOM v. FRANKLIN CTY. COURT OF APPEALS
    2018-0666
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied. Motion to strike memorandum in opposition to motion for reconsideration denied as moot.


text:
    STATE v. DILLEY
    2018-0761
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.


text:
    COLUMBUS BITUMINOUS CONCRETE CORP. v. HARRISON TWP. BD. OF ZONING APPEALS
    2018-1008
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Appeal accepted on proposition of law No. I.
    Kennedy and Fischer, JJ., would accept the appeal on all propositions of law.
    O'Connor, C.J., and O'Donnell, J., dissent.


text:
    PYRAMID ENTS., L.L.C. v. AKRON DEPT. OF NEIGHBORHOOD ASSISTANCE
    2018-1014
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. WILLIAMS
    2018-1017
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    O'Donnell, J., dissents and would accept the appeal on proposition of law No. I.
   Fischer, J., dissents.


text:
    STATE v. MITCHELL
    2018-1021
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    STATE v. BAKER
    2018-1039
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. HAMMOCK
    2018-1043
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. HOLDER
    2018-1206
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Appeal accepted. Cause held for the decisions in 2017-0186, State v. Dunson, and 2017-1579 and 2017-1609, State v. Braden, and briefing schedule stayed.
    Kennedy and Fischer, JJ., dissent.


text:
    STATE v. OGLE
    2018-0970
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellant's motion for order to strike, motion for leave to file amended notice of appeal, and motion for leave to file amended memorandum in support of jurisdiction denied.
    O'Donnell, Fischer, and DeGenaro, JJ., would grant appellant's motions for leave.
    DeWine, J., would grant appellant's motion for order to strike.
   Kennedy, J., would deny all of appellant's motions as moot.


text:
    STATE v. JACKSON
    2018-0981
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. LUSANE
    2018-0986
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. WOODSON
    2018-1003
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. GLAZE
    2018-1005
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    STATE EX REL. HAYNIE v. TURNER
    2018-1016
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. MITCHELL
    2018-1020
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    GERSTON v. PARMA VTA, L.L.C.
    2018-1025
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. MCGOWAN
    2018-1042
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    MAGNUS INTERNATL. GROUP, INC. v. FORSTER
    2018-1031
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    O'Connor, C.J., and French, J., dissent.
   DeGenaro, J., not participating.


author: DeWine, J., not participating.

text:
    DANOPULOS v. AM. TRADING II, L.L.C.
    2018-1157
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    O'Donnell and Fischer, JJ., dissent.
   DeWine, J., not participating.


text:
    PHOENIX LIGHTING GROUP, L.L.C. v. GENLYTE THOMAS GROUP, L.L.C.
    2018-1076
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Appeal accepted on proposition of law No. III.
    O'Donnell, Kennedy, and Fischer, JJ., would accept the appeal on all propositions of law.
    O'Connor, C.J., and French and DeGenaro, JJ., dissent.


author: Fischer, J., not participating.

text:
    STATE v. OLAGBEMIRO
    2018-0987
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Fischer, J., not participating.


text:
    IN RE J.L.M.
    2018-1004
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellee's motion to strike denied.
    O'Donnell and DeGenaro, JJ., dissent and would accept the cause.


text:
    CLIFTON STEEL CO. v. TRINITY EQUIP. CO.
    2018-1006
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    MRI SOFTWARE, L.L.C. v. W. OAKS MALL FL, L.L.C.
    2018-1027
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    CEASOR v. E. CLEVELAND
    2018-1028
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. STENGEL
    2018-1030
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    SMS FIN. 30, L.L.C. v. FREDERICK D. HARRIS, M.D., INC.
    2018-1036
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Fischer, J., dissents and would accept the appeal on proposition of law Nos. I and III.


text:
    STATE v. CARTER
    2018-1040
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellant's motion to take judicial notice denied as moot.
    O'Donnell and DeWine, JJ., would deny appellant's motion to take judicial notice.


text:
    BENNETT v. SCOTTS MIRACLE-GRO CO.
    2018-1279
    Supreme Court of Ohio.
    October 15, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellee's motion to strike. Motion denied. Appellee may file an amended memorandum in response to jurisdiction within 30 days.


text:
    MERLETTI v. E-MERGING TECHNOLOGIES GROUP, INC.
    2018-1064
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Fischer, J., dissents.


text:
    STATE v. WALKER
    2018-1185
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    STATE v. GLENN
    2018-1053
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. BEVENUTO
    2018-1056
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. DURGAN
    2018-1059
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: O'Donnell, J., dissents.

text:
    MILLSTEIN v. MILLSTEIN
    2018-1061
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Donnell, J., dissents.


text:
    BIRKMEIER v. ST. RITA'S MED. CTR.
    2018-1067
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Donnell, J., dissents.


text:
    STATE v. LAROSS-HENDERSON
    2018-1154
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Fischer, J., dissents and would accept the appeal on proposition of law No. I and hold the cause for 2017-1506, State v. Gwynne.
   DeGenaro, J., not participating.


author: DeGenaro, J., dissents.

text:
    GLENN v. OHIO STATE UNIV.
    2018-1161
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    DeWine, J., dissents and would accept the appeal on proposition of law No. I.
   DeGenaro, J., dissents.


text:
    STATE v. MOORE
    2018-1202
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE EX REL. LIVINGSTON v. CHERRY
    2018-1432
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS ORDERS
    In Mandamus and Prohibition. On amended complaint for writs of mandamus and prohibition. Sua sponte, respondents ordered to file an answer to the amended complaint and a response to the application for temporary injunctive relief by October 15, 2018. This cause shall otherwise proceed in accordance with S.Ct.Prac.R. 12.08. No requests or stipulations for extension of time shall be accepted in this cause, and the clerk's office shall refuse to accept for filing any request or stipulation for extension of time. Pursuant to S.Ct.Prac.R. 12.08(C), all documents filed in this cause shall be served on the date of filing by personal service, facsimile transmission, or e-mail.


text:
    STATE v. FREDERICK
    2018-1045
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. GORDON
    2018-1049
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. KIMPEL
    2018-1057
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. JONES
    2018-1060
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    JPMORGAN CHASE BANK, N.A. v. ASBURY
    2018-1065
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. WILLIAMSON
    2018-1095
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    WILLIAMS v. CANTON SCHOOL EMPS. FED. CREDIT UNION
    2018-1128
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. SLY BAIL BONDS
    2018-1143
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Fischer, J., dissents.


text:
    STATE v. WEAVER
    2018-1152
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. HORSLEY
    2018-1168
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. SIMS
    2018-1223
    Supreme Court of Ohio.
    October 10, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. GRATE
    2018-0968
    Supreme Court of Ohio.
    October 17, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for extension of time to transmit the record. Motion granted. The record is ordered to be filed no later than January 14, 2019. No additional motions for extension of time to transmit the record shall be filed.


text:
    MIDDLETON v. GEICO SECURE INS. CO.
    2018-1351
    Supreme Court of Ohio.
    October 17, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for mediation. Motion denied.


text:
    BEAVERCREEK TOWNE STATION, L.L.C. v. GREENE CTY. BD. OF REVISION
    2018-0273
    Supreme Court of Ohio.
    October 17, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS ORDERS
    Sua sponte, cause ordered to be scheduled for oral argument before a master commissioner.


text:
    JOHNSON v. GOULDING
    2018-0992
    Supreme Court of Ohio.
    October 17, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS DISMISSALS
    In Mandamus. On relator's application for dismissal. Application granted. Cause dismissed.


text:
    IN RE Resignation of MOORE
    2018-1337
    Supreme Court of Ohio.
    October 15, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    Rodger Moore, Attorney Registration No. 0074144, last known business address in Alexandria, Kentucky, submitted an application for retirement or resignation pursuant to Gov.Bar R. VI(11). The application was referred to disciplinary counsel pursuant to Gov.Bar R. VI(11)(B). On September 24, 2018, the Office of Attorney Services filed disciplinary counsel's report, under seal, with this court in accordance with Gov.Bar R. VI(11)(B)(2). On consideration thereof, pursuant to Gov.Bar R. VI(11)(C), the application is denied. Respondent remains under suspension pursuant to this court's October 19, 2016 order in Cincinnati Bar Assn. v. Moore , 147 Ohio St.3d 1405, 2016-Ohio-7371, 60 N.E.3d 1269.


author: MELODY J. STEWART, J.:

text:
    IN RE: A.F.R., Minor Child
    [Appeal by Maternal Grandparents, N.R. and L.R.]
    No. 106047
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 15, 2018
    Michael B. Telep, 4438 Pearl Road, Cleveland, OH 44109, ATTORNEY FOR APPELLANTS.
    Katherine A. Friedell, Schoonover, Rosenthal, Thurman & Daray, L.L.C., North Point Tower, 1001 Lakeside Avenue, Suite 1720, Cleveland, OH 44114, Also Listed: H.G., 4215, West 24th Street, Cleveland, OH 44109, C.T., 1391, South Belvoir, Cleveland, OH 44121, ATTORNEY FOR APPELLEE.
    BEFORE: Stewart, J., E.T. Gallagher, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, J.:

{¶ 1} Appellants N.R. and L.R., the maternal grandparents of two minor children of appellee Ni.R., appeal from a judgment that adopted a magistrate's decisions granting their motions for visitation with the children (there were separate motions for each child), but ordered the grandparents and mother to engage in counseling to address their ongoing relationship problems. The issue on appeal is whether the court erred by finding the grandparents filed untimely objections to the magistrate's decisions.

{¶ 2} "A party may file written objections to a magistrate's decision within fourteen days of the filing of the decision, whether or not the court has adopted the decision during that fourteen-day period as permitted by Juv.R. 40(D)(4)(e)(i)." Juv.R. 40(D)(3)(b)(i). The magistrate issued her decision on May 5, 2017. The grandparents filed their objections to that decision on May 22, 2017. The objections were facially untimely.

{¶ 3} The grandparents argue that their objections were not untimely because the magistrate's decisions were never journalized. They acknowledge that each decision contained the notations "received for filing," but argue that the clerk of the court's receipt of these documents is not the same as journalizing the documents.

{¶ 4} We agree with the grandparents that "filing" and "journalizing" documents are not always the same thing, but this difference affords them nothing. With respect to a magistrate's decision, Juv.R. 40(D)(3)(b)(i) speaks in terms of the decision being filed, not journalized. And for good reason: "a magistrate's decision is not effective unless adopted by the court." Juv.R. 40(D)(4)(a). Until adopted by the court, a magistrate's decision is a preliminary ruling. Because the court speaks only through its journal, Infinite Sec. Solutions, L.L.C. v. Karam Properties II , 143 Ohio St.3d 346, 2015-Ohio-1101, 37 N.E.3d 1211, ¶ 29, entering the magistrate's decision on the court's journal upon issuance would incorrectly indicate that it had been adopted by the court.

{¶ 5} "To journalize a decision means that certain formal requirements have been met, i.e., the decision is reduced to writing, it is signed by a judge, and it is filed with the clerk so that it may become a part of the permanent record of the court." State v. Ellington , 36 Ohio App.3d 76, 78, 521 N.E.2d 504 (9th Dist.1987). The rules drafters plainly understood that journalizing a magistrate's decision before it had been adopted by the court would be premature because it would suggest that it had indeed been adopted by the court. It is for this reason that Juv.R. 40(D)(3)(b)(i), like its counterpart Civ.R. 53, uses the word "filing" and not "journalizing." In this context, "filing" means that the magistrate's decision has been noted on the record, thus triggering the time period for filing objections.

{¶ 6} Cases involving magistrate decisions are distinguishable from cases where the court journalizes a document, usually by the clerk of the court noting the date on which a document has been "received for filing." When the court is journalizing a decision, we have specifically rejected the argument "that filing and journalizing are two separate acts and that the mark 'received for filing' is insufficient to show journalization by the clerk." See State v. Smith , 8th Dist. Cuyahoga No. 99428, 2013-Ohio-3154, 2013 WL 3811212, ¶ 10. See also State v. Orr , 8th Dist. Cuyahoga No. 100166, 2014-Ohio-501, 2014 WL 585229, ¶ 5 ("a time stamp reflecting the judgment entry had been received for filing is sufficient to provide notice of journalization by the clerk and complies with the requirement of Crim.R. 32(C)."

{¶ 7} It follows that the magistrate's decisions did not, and could not, be journalized upon filing unless specifically adopted by the court. Nevertheless, the issuance of the magistrate's decisions started the time period in which to file objections. The grandparents did not file their objections during the fourteen-day period as required by Juv.R. 40(D)(3)(b)(i) despite having received notice of those decisions. The grandparents argue that the date the magistrate's decisions were actually postmarked-May 8, 2017-is the date from which the time calculation should start, thus making their objections timely. However, they cite to no authority for the proposition that the date a magistrate's decision is postmarked constitutes the "filing" of a magistrate's decision for purposes of Juv.R. 40(D)(3)(b)(i). Their failure to timely object meant that they forfeited the right to "assign as error on appeal the court's adoption of any factual finding or legal conclusion[.]" Civ.R. 40(D)(3)(b)(iv).

{¶ 8} Judgment affirmed.

EILEEN T. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR

      Notably, the Rules of Juvenile Procedure use the word "journalize" in other contexts, demonstrating a clear distinction between it and "filing." See, e.g., Juv.R. 34(F) ("As part of its dispositional order, the court shall journalize a case plan for the child.").