State ex rel. Mather v. Oda , 2023 Ohio 3907 ( 2023 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Mather v. Oda, Slip Opinion No. 2023-Ohio-3907.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2023-OHIO-3907THE STATE EX REL. MATHER ET AL. v. ODA, JUDGE, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Mather v. Oda, Slip Opinion No.
2023-Ohio-3907.]
Prohibition—Writ sought to prevent trial court from proceeding on request for
attorney fees after limited remand from court of appeals—Trial court lost
jurisdiction after entering final judgment, and court of appeals’ mandate
did not give trial court jurisdiction to entertain request for attorney fees that
accrued after final judgment—Writ granted.
(No. 2022-1242—Submitted August 22, 2023—Decided October 31, 2023.)
IN PROHIBITION.
__________________
Per Curiam.
{¶ 1} At issue in this original action is whether a trial court has jurisdiction to
proceed on a request for attorney fees after a limited remand from a court of appeals.
We conclude that the trial court lost jurisdiction after entering final judgment and that
SUPREME COURT OF OHIO
the court of appeals’ mandate did not give the trial court jurisdiction to entertain a
request for attorney fees that accrued after the final judgment. Accordingly, we grant
a writ of prohibition.
{¶ 2} Also pending are a motion for judgment on the pleadings, a motion to
strike that motion and for sanctions, and a motion to strike the evidence jointly filed
by respondents and the intervening respondents. We deny the motion to strike the
motion for judgment on the pleadings and for sanctions, deny the motion for
judgment on the pleadings, and grant in part and deny in part the motion to strike the
jointly filed evidence.
I. BACKGROUND
{¶ 3} The relators in this case are Peter Mather and two entities named
Assured Administration, L.L.C. (collectively, “Mather”). The first Assured
(“Assured Ohio”), an Ohio entity, was the developer of a residential subdivision in
Warren County. Peter Mather is Assured Ohio’s manager. In 2017, Assured Ohio
and Peter Mather filed a lawsuit in the Warren County Court of Common Pleas,
alleging that several homeowners in the subdivision had improperly interfered with
Assured Ohio’s attempt to sell a lot in the subdivision. Thomas Young, Steve
Yeoman, Marc Davis, Bethany Sarchet, and The Greens of Kings Meadows Home
Owners Association (collectively, the “homeowners”) filed counterclaims against
Assured Ohio, Peter Mather, and the other Assured, a South Carolina entity, asserting
a right to a declaratory judgment holding that Assured Ohio did not have sole
discretion to sell the lot and a right to attorney fees. The court granted summary
judgment for the homeowners and found that they were entitled to attorney-fee
awards.
{¶ 4} In its final judgment, the trial court awarded the homeowners more than
$235,000 for attorney fees and other litigation expenses. Mather appealed to the
Twelfth District Court of Appeals. In their merit brief, the homeowners asked the
court of appeals to affirm the judgment and remand the action to the trial court for
2
January Term, 2023
the assessment of additional attorney fees and litigation expenses incurred in the
appellate process. The court of appeals affirmed but “remanded to the trial court for
the limited purpose of issuing a nunc pro tunc order to reflect that [Peter Mather] is
a party to this action and therefore liable for payment of the attorney fees
awarded.” The trial court entered a nunc pro tunc order in August 2021. Mather paid
the judgment in January 2022.
{¶ 5} In April 2022, the homeowners filed a motion in the trial court seeking
more than $167,000 in additional attorney fees and expenses incurred in attempting
to collect on the judgment and in defending the judgment on appeal. The matter
was referred to Magistrate Carrie A. Heisele. In October 2022, Mather filed this
original action against respondents, Magistrate Heisele and Judge Donald E. Oda
II (collectively, “the common pleas court”), seeking a writ of prohibition and
alleging that the common pleas court patently and unambiguously lacks jurisdiction
to conduct further proceedings in the underlying case.
{¶ 6} The common pleas court filed a motion to dismiss, which this court
denied. 168 Ohio St.3d 1454, 2022-Ohio-4078, 198 N.E.3d 109. After the common
pleas court filed an answer to Mather’s complaint, this court granted an alternative
writ and set a schedule for the presentation of evidence and the filing of briefs. 169
Ohio St.3d 1439, 2023-Ohio-482, 203 N.E.3d 726. This court simultaneously
granted the homeowners’ motion to intervene as respondents in this action. Id.{¶ 7} The same day this court granted the alternative writ and allowed the
homeowners to intervene, the homeowners filed a motion for judgment on the
pleadings. Mather moved to strike the homeowners’ motion and for the imposition
of sanctions. Mather also has moved to strike the evidence jointly filed by the
common pleas court and the homeowners.
3
SUPREME COURT OF OHIO
II. ANALYSIS
A. Motions
1. Motion for judgment on the pleadings and related motion to strike
{¶ 8} Mather has filed a motion to strike the homeowners’ motion for
judgment on the pleadings, arguing that the homeowners filed their motion without
authority. S.Ct.Prac.R. 12.04(B)(1) permits a respondent to file a motion for
judgment on the pleadings “at the same time an answer is filed.” As intervening
respondents, the homeowners’ answer was deemed filed when we granted their
motion to intervene. Because the homeowners’ motion for judgment on the pleadings
was filed the same day we granted their motion to intervene, the homeowners’ motion
for judgment on the pleadings did not contravene S.Ct.Prac.R. 12.04(B)(1).
{¶ 9} Mather also argues that we should strike the homeowners’ motion for
judgment on the pleadings because it is “contrary to” S.Ct.Prac.R. 12.05. But
S.Ct.Prac.R. 12.05 does not address the filing of a motion for judgment on the
pleadings. We deny Mather’s motion to strike and request for sanctions because no
rule prohibited the homeowners from filing their motion for judgment on the
pleadings.
{¶ 10} But in denying the common pleas court’s motion to dismiss and
granting an alternative writ, we determined that Mather’s prohibition claim may have
merit. See State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881
N.E.2d 224, ¶ 8. We deny the homeowners’ motion for judgment on the pleadings
for the same reason we denied the common pleas court’s motion to dismiss. See State
ex rel. Bohlen v. Halliday, 164 Ohio St.3d 121, 2021-Ohio-194, 172 N.E.3d 114,
¶ 12 (recognizing that the standards for motions under Civ.R. 12(B)(6) and Civ.R.
12(C) are similar).
2. Motion to strike evidence
{¶ 11} The common pleas court and the homeowners jointly filed evidence
consisting of nine documents filed in the underlying litigation. The documents they
4
January Term, 2023
filed were not authenticated by affidavit, but the common pleas court and the
homeowners ask us to take judicial notice of them based on their availability through
online court dockets. Mather asks us to strike the evidence based on a lack of
authentication. The determination of a motion to strike evidence is within our broad
discretion. See State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133
Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 14.
{¶ 12} We deny Mather’s motion to strike with regard to exhibit Nos. 1
through 5 of the evidentiary submission because the homeowners authenticated
those documents by affidavit when they filed their motion to intervene. See State
ex rel. McDougald v. Sehlmeyer, 164 Ohio St.3d 133, 2021-Ohio-666, 172 N.E.3d
126, ¶ 5-6 (a party need not refile evidence that was properly authenticated in an
earlier filing). We deny Mather’s motion to strike with regard to exhibit Nos. 8 and
9 because Mather submitted those documents as part of his own evidentiary
submission. See State ex rel. Maxwell v. Brice, 167 Ohio St.3d 137, 2021-Ohio-
4333, 189 N.E.3d 771, ¶ 14 (declining to strike evidence that was properly
submitted by other means).
{¶ 13} That leaves only two documents—exhibit Nos. 6 and 7—for our
consideration. In seeking to have these exhibits stricken, Mather relies on
S.Ct.Prac.R. 12.06(A), which provides that any evidence not submitted through an
agreed statement of facts “shall be submitted by affidavits, stipulations, depositions,
and exhibits.” Evidence submitted under this rule “should comport with the Rules
of Evidence.” State ex rel. Brenders v. Hall, 71 Ohio St.3d 632, 637, 646 N.E.2d
822 (1995), fn. 1. We have explained that “failure to abide by [S.Ct.Prac.R.
12.06(A)] will result in the exclusion of the proffered exhibits.” Maxwell at ¶ 13.
{¶ 14} We decline to take judicial notice of exhibit Nos. 6 and 7. Evid.R.
201(A) permits a court to take judicial notice only of “adjudicative facts; i.e., the
facts of the case.” It may be appropriate in certain cases for a court to take judicial
notice of something filed in another case. See State ex rel. Everhart v. McIntosh,
5
SUPREME COURT OF OHIO
115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 10 (taking judicial notice
of the dismissal of a case). But here, the common pleas court and the homeowners
do not ask us merely to take notice of a fact (e.g., that certain documents were filed);
they ask us to accept the documents themselves as evidence. The admission of
documents into evidence is outside the scope of Evid.R. 201. See Natl. Distillers
& Chem. Corp. v. Limbach, 71 Ohio St.3d 214, 215-216, 643 N.E.2d 101 (1994);
Shaut v. Roberts, 2022-Ohio-817, 186 N.E.3d 302, ¶ 19 (8th Dist.). Accordingly,
we grant Mather’s motion to strike with regard to exhibit Nos. 6 and 7 of the
evidence jointly filed by the common pleas court and the homeowners.
B. Prohibition claim
{¶ 15} To be entitled to a writ of prohibition, a relator ordinarily must
establish that the respondent is about to exercise judicial power without authority and
that there is no adequate remedy in the ordinary course of the law. State ex rel.
Sliwinski v. Burnham Unruh, 118 Ohio St.3d 76, 2008-Ohio-1734, 886 N.E.2d 201,
¶ 7. But if the respondent patently and unambiguously lacks jurisdiction to proceed,
the relator need not prove the absence of an adequate remedy in the ordinary course
of the 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. Here, the common pleas court concedes that
it intends to exercise judicial power, and Mather does not argue that he lacks an
adequate remedy in the ordinary course of the law. The only issue before us,
therefore, is whether Mather has shown that the common pleas court patently and
unambiguously lacks jurisdiction to proceed.
{¶ 16} Mather argues that the common pleas court lacks jurisdiction for two
reasons. He says that the court of appeals’ mandate did not give the common pleas
court jurisdiction to adjudicate a new attorney-fee request. And he says that the
common pleas court lacks jurisdiction because he paid the final judgment.
{¶ 17} When Mather appealed the final judgment in the underlying case, the
common pleas court lost jurisdiction to take further action, except to aid in Mather’s
6
January Term, 2023
appeal. See State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55
Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). The common pleas court and the
homeowners argue that Mather’s appeal did not divest the common pleas court of
jurisdiction to consider whether the homeowners are entitled to attorney fees incurred
in attempting to collect on the judgment and in defending the judgment on appeal,
because that issue is “collateral” or “ancillary” to the parties’ claims. They suggest
that deciding whether the homeowners are entitled to attorney fees that accrued after
the final judgment is “not inconsistent with the reviewing court’s jurisdiction to
reverse, modify, or affirm the judgment,” State ex rel. Neff v. Corrigan, 75 Ohio
St.3d 12, 15, 661 N.E.2d 170 (1996).
{¶ 18} This argument fails to appreciate both the procedural history of the
underlying case and the nature of the attorney fees at issue. Mather appealed a final
judgment disposing of all pending claims in the underlying case, including the
homeowners’ claims for attorney fees. When Mather appealed, there were no claims
left for the common pleas court to decide, and the homeowners had not yet incurred
the attorney fees now at issue. The common pleas court and the homeowners do
not explain how the common pleas court could dispose of all pending claims yet
retain jurisdiction over a claim that had not yet accrued.
{¶ 19} Nor have the common pleas court and the homeowners shown that the
common pleas court regained jurisdiction to award attorney fees that accrued after
the final judgment. The doctrine of law of the case “provides that the decision of a
reviewing court in a case remains the law of that case on the legal questions involved
for all subsequent proceedings in the case at both the trial and reviewing levels.”
Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). The doctrine ensures
consistent results in a case and “avoid[s] endless litigation by settling issues.” Id. It
also “preserve[s] the structure of superior and inferior courts as designed by the Ohio
Constitution.” Id. “[T]he doctrine functions to compel trial courts to follow the
mandates of reviewing courts.” Id. The homeowners argue that a lower court may
7
SUPREME COURT OF OHIO
award appellate attorney fees following a remand from a superior court so long as the
superior court’s mandate does not “specifically prohibi[t]” the lower court from
doing so. But they have it backwards. When a case has been appealed, the lower
court regains jurisdiction only on remand from a superior court, Special Prosecutors
at 97, and on remand, the lower court may not “extend or vary the mandate given,”
Nolan at 4.
{¶ 20} Here, the court of appeals affirmed the trial court’s judgment and
remanded the case “for the limited purpose of issuing a nunc pro tunc order.” A
nunc pro tunc order merely corrects the record to “reflec[t] what the court actually
decided.” State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 164, 656 N.E.2d 1288(1995). The court of appeals’ mandate, therefore, did not authorize the common
pleas court to do anything new, let alone to entertain a new claim for attorney fees.
{¶ 21} The common pleas court argues that its continued exercising of
jurisdiction is supported by our holdings in Cruz v. English Nanny & Governess
School, 169 Ohio St.3d 716, 2022-Ohio-3586, 207 N.E.3d 742, and Klein v. Moutz,
118 Ohio St.3d 256, 2008-Ohio-2329, 888 N.E.2d 404. In Cruz, we held that a
prevailing party who was awarded reasonable attorney fees along with an award of
punitive damages may recover attorney fees incurred in defending a judgment. Id. at
¶ 38. And in Klein, we held that a trial court may have authority under a statute to
tax as costs attorney fees incurred at the appellate level. Id. at ¶ 13. But even if a
trial court generally has jurisdiction over a type of matter, “its decision to exercise
jurisdiction in a particular instance can be contested in a prohibition action when the
lack of jurisdiction in that instance is patent and unambiguous.” State ex rel.
Huntington Natl. Bank v. Kontos, 145 Ohio St.3d 102, 2015-Ohio-5190, 47 N.E.3d
133, ¶ 20. Although Cruz and Klein support general propositions of law regarding a
trial court’s authority to award appellate attorney fees in certain circumstances, they
do not establish jurisdiction under the facts of this case or override the rule that a
lower court may not “extend or vary the mandate given” by a superior court, Nolan
8
January Term, 2023
at 4. The court of appeals’ mandate gave the common pleas court limited jurisdiction
to enter a nunc pro tunc order; it did not establish jurisdiction for the common pleas
court to conduct further proceedings.
{¶ 22} As a final matter, the common pleas court and the homeowners cite
Phoenix Lighting Group, L.L.C. v. Genlyte Thomas Group, L.L.C., 9th Dist. Summit
No. 30303, 2023-Ohio-1079, ¶ 7, 19, in which the Ninth District Court of Appeals
held that a request for appellate attorney fees was an “open issue” a trial court could
consider, even when a mandate from this court required only that the trial court issue
a final judgment granting a certain amount of attorney fees. Phoenix is currently on
appeal to this court. Phoenix Lighting Group, L.L.C. v. Genlyte Thomas Group,
L.L.C., 170 Ohio St.3d 1512, 2023-Ohio-2600, 214 N.E.3d 575.
{¶ 23} Phoenix does not affect the outcome of this case. As discussed, the
mandate at issue here unambiguously remanded the case only for the common pleas
court to carry out a limited, ministerial task. It did not give the common pleas court
jurisdiction to conduct any further proceedings. Because a lower court patently and
unambiguously lacks jurisdiction to disobey a superior court’s mandate, see Special
Prosecutors, 55 Ohio St.2d at 97-98, 378 N.E.2d 162, we grant a writ of prohibition.
See State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180,
182, 652 N.E.2d 742 (1995) (“a writ of prohibition is an appropriate remedy to
prevent a lower court from proceeding contrary to the mandate of a superior court”).
{¶ 24} We need not address the alternative argument that the common pleas
court patently and unambiguously lacks jurisdiction because Mather paid the
amount due under the judgment.
III. CONCLUSION
{¶ 25} We deny Mather’s motion to strike the homeowners’ motion for
judgment on the pleadings and for sanctions, and we deny the homeowners’ motion
for judgment on the pleadings. We deny Mather’s motion to strike the evidence
jointly filed by the common pleas court and the homeowners with regard to exhibit
9
SUPREME COURT OF OHIO
Nos. 1 through 5, 8, and 9 and grant Mather’s motion to strike with regard to exhibit
Nos. 6 and 7. We grant a writ of prohibition.
Writ granted.
FISCHER, DONNELLY, STEWART, BRUNNER, and DETERS, JJ., concur.
KENNEDY, C.J., concurs in part and concurs in judgment in part, with an
opinion joined by DEWINE, J.
_________________
KENNEDY, C.J., concurring in part and concurring in judgment in part.
{¶ 26} I concur in the majority’s judgment granting a writ of prohibition.
Further, I agree with the majority’s decision to deny the motion to strike the motion
for judgment on the pleadings and for sanctions, its decision to deny the motion for
judgment on the pleadings, and its decision to grant in part and deny in part the
motion to strike the jointly filed evidence.
{¶ 27} I part ways with the majority regarding its discussion of Cruz v.
English Nanny & Governess School, 169 Ohio St.3d 716, 2022-Ohio-3586, 207
N.E.3d 742. The majority claims that Cruz did not “override the rule that a lower
court may not ‘extend or vary the mandate given’ by a superior court.” Majority
opinion, ¶ 21, quoting Nolan v. Nolan, 11 Ohio St.3d 1, 4, 462 N.E.2d 410 (1984).
But Cruz did, in fact, override that rule.
{¶ 28} In Cruz, there was no directive in the appellate court’s mandate for
the trial court to reopen the judgment to consider a new motion for appellate
attorney fees or to determine appellate attorney fees. Id. at ¶ 68 (Kennedy, J.,
dissenting). “Instead, the mandate from the Eighth District was for the trial court
to reconsider the award of attorney fees it had already made. [Cruz v. English
Nanny & Governess School Inc., 2017-Ohio-4176, 92 N.E.3d 143, ¶ 126 (8th
Dist.)] (‘on remand, the trial court is ordered to * * * reconsider plaintiff’s motion
for attorney fees’).” (Emphasis sic.) Cruz at ¶ 67 (Kennedy, J., dissenting).
10
January Term, 2023
{¶ 29} “Appellate courts tell trial courts what the law is and what the trial
court must do on remand.” (Emphasis sic.) Id. at ¶ 88 (Kennedy, J., dissenting).
Cruz essentially held that on remand, a trial court may reopen a judgment and do
anything the appellate court does not prohibit the trial court from doing. But
“[a]ppellate courts do not list for the parties what they may not do on remand. Such
an admonition could be limitless and therefore impossible to achieve, reaching
beyond mere review of what occurred below and thereby blurring the line between
neutral and detached judicial review and advocacy.” (Emphasis sic.) Id.
{¶ 30} In Cruz, the trial court, on remand from the Eighth District,
entertained the plaintiffs’ new request for appellate-attorney fees. 169 Ohio St.3d
716, 2022-Ohio-3586, 207 N.E.3d 742, at ¶ 15-16. The trial court thereby
disregarded the appellate court’s mandate. Worse, on review, this court did too by
upholding the trial court’s judgment.
{¶ 31} Therefore, with respect to the granting of the writ of prohibition in
this case, I concur in the judgment. I concur fully in the remainder of the majority
opinion.
DEWINE, J., concurs in the foregoing opinion.
_________________
The Law Firm of Curt C. Hartman, and Curt C. Hartman; and George M.
Parker, for relators Peter Mather and Assured Administration, L.L.C, an Ohio
limited-liability company.
Eberly McMahon Copetas, L.L.C., and David A. Eberly, for relator Assured
Administration, L.L.C, a South Carolina limited-liability company.
David D. Hayes, Greene County Prosecuting Attorney, and Megan A.
Hammond, Assistant Prosecuting Attorney, for respondents.
Helmer, Martins, Rice & Popham, Co., L.P.A., and Paul B. Martins, for
intervening respondent Steve Yeoman.
Patsfall, Yeager & Pflum, L.L.C., and Joseph Pflum, for intervening
11
SUPREME COURT OF OHIO
respondent Thomas Young.
Bruns, Connell, Vollmar & Armstrong, L.L.C., Thomas B. Bruns, and
Lucinda Shirooni, for intervening respondent Bethany Sarchet.
Cooper & Elliott, L.L.C., and Jeffrey T. Kenney, for intervening respondent
The Greens of Kings Meadows Home Owners Association.
Garvey Shearer Nordstrom, P.S.C., John J. Garvey III, and Jason Abeln, for
intervening respondent Marc Davis.
_________________
12