Opinion
29018
06-16-2021
LEXISNEXIS, A DIVISION OF RELX, INC. Plaintiff-Appellee v. PATRICIA MURRELL, ETAL. Defendant(s)-Appellant(s)
[Civil Appeal from Common Pleas Court] Trial Court Case No. 2017 CV 04310
DECISION AND FINAL JUDGMENT ENTRY
PER CURIAM
{¶ 1} This matter is before the court for resolution of our show cause order. We conclude that the appeal must be dismissed.
{¶ 2} Appellant(s), Patricia Murrell d/b/a Law Office of Murrell & Associates, and the Law Office of Murrell & Association, LLC (together, Murrell), appealed the trial court's December 23, 2020 "Proposed Order & Entry Granting Plaintiffs Attorney's Fees and Rendering Final Judgment." The Order appears to resolve the matter before that court by determining the last remaining issue: the amount of attorney fees awarded to Appellee, LEXISNEXIS, (LexisNexis).
{¶ 3} The trial court had previously entered judgment in favor of LexisNexis, awarded damages, and found that LexisNexis was entitled to attorney fees. See Decision, Order and Entry Granting Judgment in Favor of Plaintiff and Against Defendant Patricia Murrell on the First and Second Causes of Action Set Forth in Plaintiffs Amended Complaint (November 12, 2020). The court scheduled and later held a hearing on the appropriate amount of attorney fees.
{¶ 4} Murrell timely appealed the November 12 Decision. See Montgomery Appellate Case No. 28980. This court dismissed the appeal for lack of a final appealable order on January 15, 2021. The appeal was pending from December 11, 2020 to January 15, 2021.
{¶ 5} The trial court issued the Order setting the amount of attorney fees and resolving the matter on December 23, 2020, while the previous appeal was pending before this court. When we dismissed the previous appeal, we acknowledged that the December 23 Order had been entered but made
no determination whether the subsequent order awarding attorney fees [was] a final appealable order or whether its entry was inconsistent with this court's jurisdiction over this appeal. See State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶ 13; Karras v. Karras, 2d Dist. Montgomery No. 27314, 2016-Ohio-8592.
Decision and Final Judgment Entry, Montgomery Appellate Case No. 28980, ¶ 9, fn.1 (January 15, 2021). That issue is squarely before us now, as Murrell has appealed the December 23 Order.
{¶ 6} The Supreme Court of Ohio has held that when a notice of appeal is filed, "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." Electronic Classroom at ¶ 13 (internal citation and quotations omitted). The trial court does not lose all jurisdiction, but "loses jurisdiction except to take action in aid of the appeal." In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9, citing State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). "A trial court may also address collateral matters pending appeal, such as contempt or sanctions under Civ. R. 11, Civ. R. 36, or Civ. R. 37." Painter & Pollis, Ohio Appellate Practice, Section 1:19 (Oct. 2020). And, "a trial court retains jurisdiction over proceedings in aid of execution of its judgments, even while those judgments are on appeal." Horvath v. Packo, 2013-Ohio-56, 985 N.E.2d 966, ¶16 (6th Dist.). However, the trial court does not have jurisdiction to proceed on claims that "could be affected by" or "might be subject to" the issues pending on appeal. Electronic Classroom at ¶ 14.
{¶ 7} When the trial court acts during the pendency of an appeal in a manner inconsistent with this court's jurisdiction, its order will not be considered a final appealable order. Karras at ¶ 5. "This is so even where the previous appeal was dismissed for lack of a final appealable order." Id. at ¶ 3.
{¶ 8} In the matter before us, this court was exercising jurisdiction over the November 12 Order (entering judgment and finding that attorney fees were warranted) when the December 23 Order (setting the amount of attorney fees) was entered. Because it appeared to be inconsistent, we ordered Murrell to show cause why this appeal should not be dismissed for lack of jurisdiction. We also ordered LexisNexis to reply to Murrell's response. Murrell filed a response, agreeing that the December 23 Order was inconsistent with this court's jurisdiction over the previous appeal, that the Order was entered by the trial court without jurisdiction, and that the Order was therefore not a final order. Murrell agreed that her appeal must be dismissed.
{¶ 9} LexisNexis challenges this position, arguing that entry of the Order was not inconsistent with this court's jurisdiction over the previous appeal. LexisNexis asserts that the amount and reasonableness of attorney fees is a separate issue from whether attorney fees should be awarded.
{¶ 10} The Supreme Court of Ohio considered inconsistency in detail in 2011 in the Electronic Classroom case. The Sixth District condensed and explained it in Horvath v. Packo:
In that case, Supportive Solutions Training Academy, L.L.C. ("Supportive Solutions") initiated a multi-count complaint against Electronic Classroom of Tomorrow ("ECOT"). Nearly two years after the filing of the complaint, ECOT moved for leave to amend its answer so that it could assert the affirmative defense of political subdivision immunity. The trial court denied the motion, and ECOT appealed. Supportive Solutions moved to stay the proceedings pending resolution of the appeal, conceding that several of its claims against ECOT would be impacted by the immunity defense. Nevertheless, the trial proceeded on all claims. The jury returned a $1.2 million verdict in favor of Supportive Solutions. After the trial court entered its judgment reflecting the jury verdict, the appeals court dismissed ECOT's earlier appeal for lack of a final, appealable order.
ECOT then filed a petition for writs of mandamus and prohibition, seeking, in part, a writ requiring the trial court to vacate that portion of thejudgment based on claims that would have been subject to the immunity defense. The Ohio Supreme Court, citing the principle "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," reasoned:
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. Id. at ¶ 14.
Addressing the argument that the appeal from the order denying ECOT's motion for leave to amend its answer had since been dismissed for lack of a final, appealable order, the Supreme Court stated:
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 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-Ohio-4798, 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.
(Emphasis sic.) Electronic Classroom, at ¶¶ 15-16.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").
The Ohio Supreme Court concluded, "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." Id. at ¶18. It then granted the writ of mandamus to compel the trial court to vacate the portions of the judgment that were based on claims subject to the immunity defense. Horvath, 2013-Ohio-56, 985 N.E.2d 966, H 24-26.
{¶ 11} In its discussion of inconsistency in Electronic Classroom, the Supreme Court identified which parts of the case remaining in the trial court could be affected by the dispute on appeal. The Court's language was that the trial court "lacked authority to proceed with the trial of any claims that might be subject to ECOT's immunity defense" - the issue on appeal - and over "those that could be affected by ECOT's appeal." (Emphasis added.) Electronic Classroom at ¶ 14. We use the same focus on whether the new action would be affected by or subject to the result on appeal.
{¶ 12} Here, the questions before this court in the previous appeal concerned the trial court's judgment in LexisNexis' favor and its determination that LexisNexis was entitled to attorney fees under the parties' contract. Because those matters had been brought before this court by the notice of appeal, they "were within the appellate court's jurisdiction on review" and not subject to further action by the trial court during the appeal. Electronic Classroom at ¶14; see Lambda Research v. Jacobs, 170 Ohio App.3d 750, 2007-Ohio-309, 869 N.E.2d 39, ¶ 21 (1st Dist.) ("the common pleas court and the court of appeals cannot assert jurisdiction simultaneously over matters on appeal. * * * When a notice of appeal is filed, it confers jurisdiction on the court of appeals and divests the common pleas court of its control over the aspects of the case involved in the appeal").
{¶ 13} The amount of attorney fees could be "affected by" or "subject to" this court's determination of the previous appeal. Had this court reversed or modified the trial court's decision granting judgment for LexisNexis and holding that it was entitled to attorney fees, no attorney fees would need to be calculated or awarded. The trial court's order setting the amount of attorney fees would be subject to reversal or modification. Thus, the trial court's entry of an order setting the amount of attorney fees could be affected by the appeal and was therefore inconsistent with this court's jurisdiction to decide whether LexisNexis was entitled to judgment and whether attorney fees were appropriate.
{¶ 14} We recognize that whether a particular action is "inconsistent" has not always been treated with consistency in the case law, leading to frustration and delay for courts, parties, and counsel alike. We also recognize that the court below was working to resolve the matter in a timely fashion and that Murrell was seeking to protect her appellate rights. Because this is a question of jurisdiction, however, the absence of which could later undermine decisions made in this appeal, we must dismiss this appeal to allow for the reentry of the final order resolving the underlying case.
{¶ 15} We find our show cause order NOT SATISFIED. This matter, Montgomery Appellate Case No. 29018, is DISMISSED.
{¶ 16} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Montgomery County Court of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing. Costs taxed pursuant to App.R. 24.
SO ORDERED.
MICHAEL L. TUCKER, Presiding Judge, JEFFREY M. WELBAUM, Judge, CHRISTOPHER B. EPLEY, Judge