[Cite as State ex rel. Allenbaugh v. Sezon,

.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO ex rel. CASE NO. 2022-A-0002 MARK H. AND JACQUELINE B. ALLENBAUGH, Original Action for Writ of Prohibition Relators,

-v-

JUDGE MARIANNE SEZON, et al.,

Respondents.

PER CURIAM OPINION

Decided: May 23, 2022 Judgment: Petition dismissed

Robert S. Wynn, 7 Lawyers Row, P.O. Box 121, Jefferson, OH 44047 (For Relators).

Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Respondents).

PER CURIAM.

{¶1} Respondents, Judge Marianne Sezon and April Daniels, Clerk of Courts,

move to dismiss the amended complaint for writ of prohibition filed by relators, Mark H.

and Jacqueline B. Allenbaugh. We dismiss.

{¶2} This original action stems from a civil lawsuit filed by Heather Rood against

the Allenbaughs in the case of Rood v. Allenbaugh, Ashtabula C.P. No. 2020-CV-104,

over which Judge Sezon presides. The Allenbaughs’ amended complaint for a writ of

prohibition sets forth the following timeline of activities in the Rood case. {¶3} Rood filed a complaint for forcible entry and detainer against the

Allenbaughs, who then brought several counterclaims against Rood. On June 2, 2021,

Judge Sezon granted Rood’s motion for summary judgment, denied the Allenbaughs’

motion for summary judgment, and ordered the Allenbaughs to vacate the premises.

Thereafter, the Allenbaughs appealed in Rood v. Allenbaugh, 11th Dist. Ashtabula No.

2021-A-0014, and this court granted the Allenbaughs’ motion to stay Judge Sezon’s June

2, 2021 order. While the appeal was pending, Rood’s counsel notified Judge Sezon that

an agreement had been reached, at which point Judge Sezon ordered the parties to

submit a final judgment entry. Rood and the Allenbaughs entered into a settlement

agreement on July 28, 2021, which provided that Rood would seek a writ of restitution if

the Allenbaughs failed to vacate the premises by December 31, 2021. On August 2,

2021, Judge Sezon issued an order dismissing the matter with prejudice but retaining

jurisdiction to enforce the terms of the agreement. On August 6, 2021, the Allenbaughs

filed a notice of voluntary dismissal of their appeal, which this court construed as a motion

to dismiss the appeal. On August 16, 2021, this court issued an entry dismissing the

appeal.

{¶4} After dismissal of the appeal, the Allenbaughs maintain that the parties filed

the following in the trial court. On January 6, 2022, Rood filed a motion for the writ of

restitution to be issued, and the Allenbaughs filed a motion to quash any writ of restitution

and a motion to stay execution of a writ of restitution. On January 10, 2022, Rood filed a

motion to enforce the settlement and directed a praecipe to the clerk of courts to issue a

writ of restitution.

2

Case No. 2022-A-0002 {¶5} In their amended complaint for a writ of prohibition, the Allenbaughs

maintain that respondents are about to exercise judicial power to issue a writ of restitution

and that respondents lack jurisdiction to so proceed because the trial court was divested

of jurisdiction when the appeal was filed and did not regain jurisdiction over the case

because the case was not remanded. Respondents move for dismissal of the petition

based on their argument that Judge Sezon regained jurisdiction over the case once the

appeal was dismissed on August 16, 2021.

{¶6} Dismissal of an original action is “appropriate if after presuming the truth of

all material factual allegations of [relators’] petition and making all reasonable inferences

in their favor, it appear[s] beyond doubt that they could prove no set of facts entitling them

to the requested extraordinary relief[.]” (Citation omitted.) State ex rel. Scott v. Cleveland,

,

,

, ¶ 14. See also State ex rel. City

of Xenia v. Greene Cty. Bd. of Commrs., 2d Dist. Greene No. 2018CA0021, 2019-Ohio-

4801, ¶ 15, quoting State ex rel. Williams v. Trim,

,

,

(“This court has the authority to sua sponte dismiss an original action

claim ‘when * * * the claimant obviously cannot prevail on the facts alleged in the

complaint.’”); State ex rel. Young v. Ducro, 11th Dist. Ashtabula No. 2020-A-0009, 2020-

Ohio-5471,

.

{¶7} For a writ of prohibition to issue, a relator must prove: “(1) a judicial officer

is about to use judicial or quasi-judicial power; (2) the proposed use of power is

unauthorized under the law; and (3) unless the writ is issued, the relator will suffer harm

for which there is no other adequate remedy in the ordinary course of the law.” State ex

rel. Grant v. Collins, 11th Dist. Lake No. 2016-L-106,

, citing State

3

Case No. 2022-A-0002 ex rel. Smith v. Hall,

,

,

. “The writ

cannot be employed to prevent an erroneous judgment or to correct mistakes in a lower

court proceeding.” (Citation omitted.)

.

{¶8} Here, the Allenbaughs have alleged that respondents are about to exercise

jurisdiction in the underlying action by issuing a writ of restitution pursuant to the parties’

settlement agreement. Therefore, the Allenbaughs’ allegations sufficiently satisfy the first

element of a prohibition claim.

{¶9} “‘In regard to the second and third elements of such a claim, the Supreme

Court of Ohio has indicated that if a trial court has general jurisdiction over the subject

matter of a specific type of case, a prohibition action usually cannot be maintained to

determine whether the exercise of jurisdiction in a particular instance is proper.’” State

ex rel. Leatherworks Partnership v. Stuard, 11th Dist. Trumbull No. 2002-T-0017, 2002-

Ohio-6477, ¶ 17, quoting Willoughby-Eastlake City School Dist. v. Lake Cty. Court of

Common Pleas, 11th Dist. Lake No. 99-L-130,

, *2 (Apr. 21, 2000), citing

State ex rel. Enyart v. O’Neill,

, 657,

(1995). “‘This

holding is predicated upon the fact that, even if the trial court is exceeding its power in

performing a specific act, the relator has an adequate legal remedy because the decision

to exercise jurisdiction can be fully reviewed in a direct appeal.’” Leatherworks at ¶ 17,

quoting Willoughby-Eastlake at *2.

{¶10} “‘However, the Supreme Court has also recognized an exception to this

general rule.’” Leatherworks at ¶ 18, quoting Willoughby-Eastlake at *3. “‘Pursuant to

this exception, even if the trial court has general jurisdiction over the matter before it, its

decision to exercise jurisdiction in a particular instance can be contested in a prohibition

4

Case No. 2022-A-0002 action when the lack of jurisdiction is patent and unambiguous.’” Leatherworks at ¶ 18,

quoting Willoughby-Eastlake at *3, citing State ex rel. Tubbs Jones v. Suster,

,

(1998). “‘Under such circumstances, a writ of prohibition

will lie even when the trial court’s decision is appealable; i.e., if the lack of jurisdiction is

patent and unambiguous, the relator is no longer required to establish the lack of an

adequate legal remedy.’” Leatherworks at ¶ 18, quoting Willoughby-Eastlake at *3, citing

State ex rel. Rogers v. McGee Brown,

,

(1997).

{¶11} Here, the Allenbaughs maintain that respondents patently and

unambiguously lack jurisdiction to issue a writ of restitution because the trial court was

divested of jurisdiction when the appeal was filed and never regained jurisdiction because

the matter was not remanded.

{¶12} “‘[O]nce 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. Electronic Classroom of Tomorrow v. Cuyahoga Cty.

Court of Common Pleas (“ECOT”),

,

,

,

¶ 13, quoting State ex rel. Rock v. School Emp. Retirement Bd.,

, 2002-

Ohio-3957,

, ¶ 8. However, it is “well-established that unless a stay of

execution is obtained, the trial court retains jurisdiction to enforce its judgment”

subsequent to the filing of a notice of appeal. (Emphasis sic.) Lula Gentithes Tr. v. Patio

Enclosures, Inc., 11th Dist. Trumbull No. 89-T-4286,

, *2, citing State ex

rel. Klein v. Chorpening,

,

(1983); R.C. 2505.09 (“Except

as provided in section 2505.11 or 2505.12 or another section of the Revised Code or in

applicable rules governing courts, an appeal does not operate as a stay of execution until

5

Case No. 2022-A-0002 a stay of execution has been obtained pursuant to the Rules of Appellate Procedure or in

another applicable manner, and a supersedeas bond is executed by the appellant to the

appellee * * *.”). Accordingly, a trial court is not automatically divested of jurisdiction to

issue a writ of restitution when a defendant appeals a judgment of forcible entry and

detainer. Lula Gentithes Tr. at *2. See also Hussain v. Sheppard, 10th Dist. Franklin No.

14AP-686,

, ¶ 7, citing R.C.1923.14 and Cherry v. Morgan, 2d Dist. Clark

No. 2012 CA 11,

(“The only method by which a defendant appealing

a judgment of forcible entry and detainer may prevent the cause from becoming moot is

by obtaining a stay of execution and posting a supersedeas bond.”). “A trial court,

however, lacks jurisdiction to execute a judgment or contempt proceedings regarding the

judgment if there is a stay of the judgment pending appeal.” State ex rel. State Fire

Marshal v. Curl,

,

(2000), citing In re Kessler,

,

(6th Dist. 1993) and Oatey v. Oatey,

,

(8th Dist. 1992).

{¶13} The Allenbaughs appear to rely on the appeal of the underlying case alone

in arguing that respondents “unequivocally lost jurisdiction of this matter including the

ability to enforce the terms of the Agreement the parties thereafter entered into” and that

the trial court did not regain jurisdiction absent a remand. We disagree. As set forth

above, a trial court is not divested of all jurisdiction upon the filing of an appeal; it retains

jurisdiction to enforce its orders absent a stay. See R.C. 2505.09. Although the

Allenbaughs do not rely on any stay issued during appeal as supporting their position that

the trial court lost all and never regained any jurisdiction, we note that the dismissal of the

appeal would have terminated a stay pending appeal. See App.R. 7 (governing stays

6

Case No. 2022-A-0002 “pending” appeal). Accordingly, to the extent that the trial court may have lacked authority

to enforce its orders during the appeal, it regained such authority with the dismissal of the

appeal.

{¶14} Further, in their opposition to respondents’ motion to dismiss, the

Allenbaughs note that Judge Sezon “acted while the appeal was pending in this matter

when she ostensibly dismissed the action at the trial level failing to wait for this Court to

resolve the appeal.” (Emphasis sic.) The Allenbaughs rely on ECOT, where the Supreme

Court of Ohio found prohibition appropriate where the relator appealed the trial court’s

denial of its motion for leave to file an amended answer, and “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.) ECOT,

.

The Supreme Court held that “the common pleas court and judges patently and

unambiguously lacked jurisdiction to proceed on all the claims against [the relator] that

were affected by its appeal,” and determined that the relator was “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.” Id. at ¶ 18.

{¶15} However, unlike ECOT, the Allenbaughs do not request the dismissal entry

be vacated for having been issued while the appeal was pending. Instead, they maintain

that the trial court currently has no jurisdiction to enforce the settlement agreement. In

support, the Allenbaughs rely on the decision of the Eighth District Court of Appeals in

7

Case No. 2022-A-0002 Stewart v. Zone Cab of Cleveland, 8th Dist. Cuyahoga No. 79317,

(Jan.

31, 2002). There, the Eighth District determined that the trial court had no jurisdiction to

grant a motion for a new trial after an appeal of the verdict had been dismissed, holding

that “[b]ecause defendants had perfected an appeal of a final and appealable order * * *,

the voluntary dismissal of the appeal, absent an order remanding the matter, left the trial

court without jurisdiction in this case.” Id. at *3. In reaching this conclusion, the Eighth

District relied on the Supreme Court of Ohio’s decision in Howard v. Catholic Social Serv.

of Cuyahoga Cty., Inc.,

,

(1994). In Howard, the

Supreme Court held that when a judgment has been appealed, the trial court regains

jurisdiction to rule on a Civ.R. 60(B) motion “only through an order by the reviewing court

remanding the matter for consideration of the Civ.R. 60(B) motion.” (Emphasis added.)

Id. at 147.

{¶16} However, as set forth above, the trial court has jurisdiction to enforce its

orders absent a stay in a pending appeal, and neither Stewart nor Howard hold otherwise.

Moreover, the Eighth District’s reliance on Howard for the proposition that the trial court

does not regain jurisdiction to rule on motions to modify the appealed judgment after an

appeal is dismissed is questionable given that Howard did not involve this issue. Instead,

Howard addressed the question of whether a trial court could modify its judgment while

the appeal of that judgment was pending. Id. at 146. Further, subsequent to Howard,

the Supreme Court held:

An appeal from a judgment divests trial courts of jurisdiction to consider Civ.R. 60(B) motions for relief from judgment, and jurisdiction to consider such motions may be conferred on the trial court only through an order of the reviewing court. [Howard at 147]; State ex rel. E. Mfg. Corp. v. Ohio Civ. Rights Comm.,

,

, 107 8

Case No. 2022-A-0002 [(1992)]. The Court of Claims therefore lacked jurisdiction to render its September 28, 1994 entry vacating its previous dismissal judgment when the dismissal was being appealed. Nevertheless, after the appeal was dismissed, the court had jurisdiction to rule on the Civ.R. 60(B) motion, which it did on October 28, 1994 by refiling its earlier vacation entry.

(Emphasis added.) State ex rel. Newton v. Court of Claims,

,

(1995).

{¶17} Given the foregoing, there does not exist a patent and unambiguous lack of

jurisdiction to enforce the settlement agreement. The question of whether the settlement

agreement, or the June 2, 2021 judgment should be enforced is a matter for the trial court

to decide. The Allenbaughs have an adequate remedy at law through appeal of the trial

court’s decision on the pending motions.

{¶18} Therefore, the petition is dismissed.

THOMAS R. WRIGHT, P.J., MARY JANE TRAPP, J., JOHN J. EKLUND, J., concur.

9

Case No. 2022-A-0002