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Date: 10-12-2019

Case Style:

James Pierce, et al v. The City of Gallipolis

Case Number: 18CA4 & 18CA7

Judge:

Court: COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY

Plaintiff's Attorney:

Defendant's Attorney: Adam R. Salisbury, Esq., Gallipolis City Solicitor

Description:


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The Pierces filed a complaint against the City asserting claims for
negligence and nuisance.1 They alleged the City owned and operated a sewer line on
their property, negligently failed to maintain the line, and as a result, the line cracked
and released sewage water and effluent that caused “massive erosion” which led to
“slippage and earth movement” that damaged their home on or about April 24, 2011.
The complaint asserted that since that date, the property had been exposed to raw
sewage and the home had become uninhabitable. 1 They also asserted claims for personal injury and loss of consortium which they later dismissed.
Gallia App. Nos. 18CA4 & 18CA7 3
{¶4} The City moved for summary judgment asserting immunity pursuant to
R.C. Chapter 2744. The trial court denied the motion, the City appealed, and we
affirmed in Pierce I. We held the allegations in the complaint regarding the initial
landslip event “properly allege negligent maintenance” of sewer lines and that the
Pierces “presented evidence that, if proven, would establish that [the City] negligently
maintained the sewer lines near their residence” and “expose it to liability under R.C.
2744.02(B)(2).” Pierce I, 2015-Ohio-2995, 39 N.E.2d 858, at ¶ 25. We also held the
Pierces “presented evidence that, if proven, would establish that [the City] negligently
maintained the sewer lines near their residence even after the initial landslip event of
April 2011” and “expose it to liability under R.C. 2744.02(B)(2).” Id. at ¶ 39. We noted
the City did “not set forth a R.C. 2744.03(A) defense in the event it is liable under R.C.
2744.02(B).” Id. at ¶ 19, fn. 2.
{¶5} On remand, the City moved for judgment on the pleadings asserting R.C.
2744.02(B)(2) did not apply because it subjects a political subdivision to liability only for
negligent acts, not negligent omissions as alleged by the Pierces. The trial court denied
the motion, and the City appealed. We affirmed and issued an opinion, which did not
receive the support of a majority of the court, concluding the law-of-the-case doctrine
required denial of the motion. Pierce II, 4th Dist. Gallia No. 16CA7, 2017-Ohio-546, at
¶ 15.
{¶6} The matter proceeded to a jury trial, and after the Pierces’ presented their
evidence, the City moved for a directed verdict. It argued that the evidence was
insufficient to warrant a verdict for the Pierces, that its efforts to remedy the problem at
the Pierce home involved the construction or reconstruction of a sewer system for which
Gallia App. Nos. 18CA4 & 18CA7 4
it is immune, and that the Pierces failed to provide evidence showing “governmental
immunity should not be reinstated pursuant to [R.C.] 2744.03(A)(5).” The court orally
denied the motion, and the City requested the court journalize that decision so the City
could appeal it. The court noted it would not normally journalize such a decision but did
so. However, it rejected the claim that once the City filed its notice of appeal, the court
would be divested of jurisdiction to proceed with the trial during the pendency of the
appeal. The court determined that the decision denying a directed verdict was not a
final, appealable order and stated that in the interest of judicial economy it “must move
forward until * * * the Court of Appeals says otherwise.”
{¶7} Thus, after the City filed its notice of appeal, the court proceeded with the
trial, and at the close of evidence, the City again moved for a directed verdict. The court
denied the motion and the City’s request for jury instructions on governmental immunity.
The jury returned a verdict in favor of the Pierces and awarded compensatory damages
of $300,000 for the negligence claim and $50,000 for the nuisance claim. The Pierces
moved for prejudgment interest, attorney fees, and payment of judgment pursuant to
R.C. 2744.06.
{¶8} On February 6, 2018, the court issued a Judgment Entry on Verdict and
entered judgment for the Pierces in the amount of $350,000. Then, on February 27,
2018, we dismissed the appeal from the order denying the City’s first motion for a
directed verdict due to lack of jurisdiction. Pierce III, 4th Dist. Gallia No. 18CA1, 2018
Ohio-1030, at ¶ 1-2. We held the order was not a final, appealable order because it did
not deny the City the benefit of immunity but rather denied the City “a directed verdict on
the underlying issue of negligence.” Id. at ¶ 2. We explained the immunity issue was
Gallia App. Nos. 18CA4 & 18CA7 5
“fully determined” in Pierce I, id. at ¶ 13, and the City deprived itself of a R.C.
2744.03(A)(5) defense “by failing to raise it in the context of Pierce I,” id. at ¶ 17.
{¶9} The City then appealed the Judgment Entry on Verdict in Gallia App. No.
18CA4 and moved for judgment notwithstanding the verdict (“JNOV”) asserting the
maximum damages the Pierces could receive was $165,000, i.e., the value of their real
estate. On June 1, 2018, the trial court issued a Judgment Entry on Post-Trial Motions
in which it denied the motions for prejudgment interest and attorney fees, granted the
motion for payment of judgment, and granted in part and denied in part the motion for
JNOV, reducing the verdict from $350,000 to $275,000. The City appealed this entry in
Gallia App. No. 18CA7, and we sua sponte consolidated Gallia App. No. 18CA4 and
18CA7.
II. ASSIGNMENTS OF ERROR
{¶10} The City assigns the following errors for our review:
1. The Trial Court erred in failing to grant Appellant’s motion for directed verdict for reinstatement of governmental immunity pursuant to [R.C.] 2744.03(A)(5).

2. The Trial Court erred in failing to include Appellant’s proposed jury instructions regarding reinstatement of governmental immunity pursuant to [R.C.] 2744.03(A)(5) in the final jury instructions.

3. The Trial Court erred in failing to grant Appellant’s motion for directed verdict as to Plaintiffs’ alleged moving and rental damages.

4. The Trial Court erred in failing to grant Appellant’s post-trial motion to reduce the jury award to the maximum value of the Plaintiffs’ residence.

III. JURISDICTION OF THE TRIAL COURT
{¶11} At oral argument, we sua sponte raised the issue whether the trial court
had jurisdiction to continue with the trial during the pendency of Pierce III. We
Gallia App. Nos. 18CA4 & 18CA7 6
instructed the parties to file supplemental briefs on this issue and to specifically address
the Supreme Court of Ohio’s decision in State ex rel. ECOT. The City urges us to apply
State ex rel. ECOT and conclude the trial court lacked jurisdiction to continue with the
trial during the pendency of Pierce III. The Pierces argue that State ex rel. ECOT is
factually distinguishable from this case, that the entry denying the first motion for a
directed verdict “was clearly an interlocutory order that was not appealable,” and that
the “vast majority of jurisdictions” hold that a “premature notice of appeal does not
divest the trial court of jurisdiction over the merits of a case.” The Pierces assert that a
holding that the trial court lost jurisdiction under these circumstances “would be a
disastrous precedent for the administration of justice.” They predict that “no jury trial
would be safe from being able to proceed to conclusion as any litigant who was not
happy with any particular decision from the trial judge, or the composition of a jury for
that matter could file an appeal for nearly any reason which would stop the jury trial until
such time as the court of appeals ruled on the appellate issue.”
{¶12} In State ex rel. ECOT, Supportive Solutions Training Academy, L.L.C. filed
suit against Electronic Classroom of Tomorrow (“ECOT”) and others in common pleas
court. State ex rel. ECOT, 129 Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, at ¶ 4.
In a motion for partial summary judgment, ECOT raised the affirmative defense of
political subdivision immunity for the first time. Id. at ¶ 5. Supportive Solutions claimed
ECOT waived this defense by not asserting it in ECOT’s answer. Id. ECOT moved for
leave to file an amended answer, and the trial court denied the motion in a journalized
entry. Id. ECOT appealed, and during the pendency of that appeal, the trial proceeded
before another judge who denied ECOT’s motion to limit the evidence to matters not
Gallia App. Nos. 18CA4 & 18CA7 7
currently under the jurisdiction of the court of appeals. Id. at ¶ 6. The jury returned a
verdict for Supportive Solutions, and the trial court entered a judgment reflecting that
verdict. Id. at ¶ 7. ECOT appealed the judgment, and the trial court denied its motion
for a stay of execution. Id. ECOT then moved the appellate court for a stay, which it
granted conditioned on the posting of a supersedeas bond. Id. at ¶ 8. The same day,
the appellate court dismissed ECOT’s appeal from the denial of the motion for leave to
file an amended answer for lack of a final, appealable order. Id. ECOT then filed an
action in the Supreme Court of Ohio asserting portions of the trial court’s judgment were
invalid because they were entered while its appeal from the denial of the motion for
leave was pending. Id. at ¶ 12. ECOT sought a writ of prohibition to prevent the trial
court and judges from enforcing those portions of the judgment and a writ of mandamus
compelling them to vacate those portions of the judgment and stay the remaining
judgment without bond pending appeal. Id. at ¶ 1, 9.
{¶13} In granting the requested writs, the Supreme Court explained:
“[W]e have consistently held that once an appeal is perfected, the trial court is divested of jurisdiction over matters that are inconsistent with the reviewing court’s jurisdiction to reverse, modify, or affirm the judgment.” State ex rel. Rock v. School Emp. Retirement Bd., 96 Ohio St.3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶ 8.

When ECOT appealed from Judge Suster’s denial of its motion for leave to file an amended answer to raise the affirmative defense of political-subdivision immunity, the common pleas court and its judges lacked authority to proceed with the trial of any claims that might be subject to ECOT’s immunity defense because those claims were within the appellate court’s jurisdiction on review. * * * Judge Sweeney, however, proceeded with the jury trial on all the pending claims, including those that could be affected by ECOT’s appeal, e.g., Supportive Solutions’ claims for breach of implied contract and for negligent misrepresentation.

It is true that the court of appeals has now dismissed ECOT’s appeal from the denial of its motion for leave to file an amended answer
Gallia App. Nos. 18CA4 & 18CA7 8
for lack of a final, appealable order and that the jurisdictional bar of a pending appeal does not apply when the appeal is no longer pending. See State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio4798, 874 N.E.2d 516, ¶ 12-13. But the common pleas court acted while the appeal was pending by conducting a jury trial on the affected claims and entering judgment on the jury verdict; the court did not wait for the court of appeals to resolve the appeal before it proceeded.

Moreover, the mere fact that ECOT perfected the appeal from an order that the court of appeals ultimately determined not to be a final, appealable order did not confer authority on the trial court to proceed on those claims that could be affected while the appeal was pending. “[T]he determination as to the appropriateness of an appeal lies solely with the appellate court,” and a trial court judge’s opinion that the order appealed from is not a final, appealable order does not alter the fact that the filing of the notice of appeal divests the trial court of jurisdiction to proceed with the adjudication during the pendency of the appeal. In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 10-11; see also In re Terrance P. (1997), 124 Ohio App.3d 487, 489, 706 N.E.2d 801 (“the trial court does not have any jurisdiction to consider whether the person has validly invoked the jurisdiction of the appellate court”).

Furthermore, the common pleas court and judges’ reliance on the statement in Everhart, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 14, that “a premature notice of appeal under App.R. 4(C) does not divest the trial court of jurisdiction to proceed because the appeal has not yet been perfected,” is misplaced. The quote refers to a notice of appeal filed “after the announcement of a decision, order, or sentence but before the entry of the judgment or order.” Id.; see App.R. 4(C). The appeal in Everhart was from an oral decision and not from a decision journalized on the record. Everhart at ¶ 2, 4. ECOT’s appeal was not from an oral decision but from a journalized order. Nothing in Everhart overruled our decision in S.J. precluding a trial court from usurping a court of appeals’ exclusive authority to determine whether a journalized order that has been appealed constitutes a final, appealable order.

Therefore, consistent with longstanding precedent, the common pleas court and judges patently and unambiguously lacked jurisdiction to proceed on all the claims against ECOT that were affected by its appeal, i.e., all the claims except for breach of express contract. * * * Accordingly, ECOT is entitled to a writ of prohibition to prevent the common pleas court and judges from enforcing those portions of the judgment against it finding it liable for breach of implied contract and negligent misrepresentation and assessing damages on those claims and to a writ of mandamus to compel the court and judges to vacate those portions of the judgment.

Gallia App. Nos. 18CA4 & 18CA7 9
(Alterations sic; first emphasis in original; second emphasis added.) Id. at ¶ 13-18.

{¶14} State ex rel. ECOT is dispositive of this appeal, and based on it, we
conclude the trial court lacked jurisdiction to continue with the trial on the Pierces’
claims during the pendency of Pierce III. The fact that State ex rel. ECOT involved a
notice of appeal filed prior to trial and this case involves a notice of appeal filed during
trial is a distinction without a difference given the Supreme Court of Ohio’s unequivocal
holding that “ ‘once an appeal is perfected, the trial court is divested of jurisdiction over
matters that are inconsistent with the reviewing court’s jurisdiction to reverse, modify, or
affirm the judgment.’ ” Id. at ¶ 13, quoting State ex rel. Rock v. School Emps.
Retirement Bd., 96 Ohio St.3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶ 8. Once the
City perfected its appeal from the denial of its first motion for a directed verdict, the trial
court lacked authority to proceed with the trial of the Pierces’ claims, which were the
subject of that motion and therefore within our jurisdiction on review. Nonetheless, as in
State ex rel. ECOT, the trial court acted while the appeal was pending by “conducting a
jury trial on the affected claims and entering judgment on the jury verdict.” Id. at ¶ 15.
And as in State ex rel. ECOT, the fact that the City perfected its appeal from an order
this court “ultimately determined not to be a final, appealable order did not confer
authority on the trial court to proceed on those claims that could be affected while the
appeal was pending.” Id. at ¶ 16. The trial court judge’s opinion that the order
appealed from was not a final, appealable order did not alter the fact that the filing of the
notice of appeal divested “the trial court of jurisdiction to proceed with the adjudication
during the pendency of the appeal.” Id. This court had the “exclusive authority” to
Gallia App. Nos. 18CA4 & 18CA7 10
determine whether the journalized order denying the first motion for a directed verdict
constituted a final, appealable order. Id. at ¶ 17.
{¶15} Although the Pierces direct this court to caselaw from other jurisdictions to
support their position and raise concerns about judicial economy and the potential for
abuse of a holding that the trial court was divested of jurisdiction in this case, “[t]rial
courts and intermediate courts of appeals are bound by and must follow decisions of the
Ohio Supreme Court.” State v. Cox, 4th Dist. Adams No. 02CA751, 2003-Ohio-1935, ¶
12. Moreover, we are not convinced that today’s decision will lead to the abuse
predicted by the Pierces. A notice of appeal from an oral decision made during trial
would not divest a trial court of jurisdiction. See State ex rel. ECOT, 129 Ohio St.3d 30,
2011-Ohio-626, 950 N.E.2d 149, at ¶ 17, citing State ex rel. Everhart v. McIntosh, 115
Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 2, 4, 14. In addition, litigants and
their lawyers have incentives to not intentionally delay a pending trial by filing a frivolous
interlocutory appeal from a journalized order. For example, App.R. 23 authorizes an
appellate court to order an appellant who files a frivolous appeal “to pay reasonable
expenses of the appellee including attorney fees and costs.” In addition, Prof.Cond.R.
3.1 states that a lawyer shall not bring a proceeding or assert an issue in a proceeding
“unless there is a basis in law and fact for doing so that is not frivolous, which includes a
good faith argument for an extension, modification, or reversal of existing law.” A
violation of this rule constitutes professional misconduct and subjects an attorney to
discipline. See Prof.Cond.R. 8.4(a); Gov.Bar. R. V(12)(A) and V(35)(J).
{¶16} The present case is an outlier. A party, believing it had an immediate right
to appeal a decision made during trial pursuant to R.C. 2744.02(C), persuaded a trial
Gallia App. Nos. 18CA4 & 18CA7 11
court to journalize a decision the court ordinarily would have made only orally. Even
though the party then perfected an appeal from the journalized decision, the trial
proceeded and concluded before this court resolved the appeal.
{¶17} For the foregoing reasons, we conclude the trial court was divested of
jurisdiction to continue with the jury trial after the City filed its notice of appeal in Pierce
III. “If a trial court improperly exercises jurisdiction while an appeal is pending, any
resultant orders are void.” Redmond v. Wade, 4th Dist. Lawrence No. 16CA25, 2017
Ohio-7192, ¶ 8, citing In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207,
¶ 15. Thus, the February 6, 2018 Judgment Entry on Verdict is void, as is the related
June 1, 2018 Judgment Entry on Post-Trial Motions.

Outcome: We vacate those judgments, dismiss the present appeals for lack of a final, appealable order, and remand this matter to the trial court for further proceedings consistent with this opinion.

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