IN THE SUPREME COURT OF OHIO

Transcription

1 ^^^^IN Z IN THE SUPREME COURT OF OHIO Peter L. Moran, Esq., Administrator of ) Supreme Court Case No the Estate of Richard L. Elzay, Deceased, ) On Appeal from the Lucas County Court of Appeals, Appellee, ) Sixth Appellate District v. Mercy St. Vincent Medical Center and Kristen M. Tennant, R.N., Appellants. ) Court of Appeals Case No. L ) ) ) APPELLANTS MERCY ST. VINCENT MEDICAL CENTER AND KRISTEN M. TENNANT, R.N.'S RENEWED MOTION TO STAY ENFORCEMENT OF JUDGMENT PENDING APPEAL James E. Brazeau ( ) -- Counsel of Record Timothy D. Krugh ( ) Jason M. Van Dam ( ) Robison, Curphey & O'Connell, LLC Ninth Floor, Four SeaGate Toledo, Ohio (419) (419) facsimile jbrazeau@rcolaw.com tkrugh@rcolaw.com jvandam@rcola,a,.com ) Kyle A. Silvers ( ) Shindler, Neff, Holmes, Worline ) & Moh]er, LLP 300 Madison Avenue, Suite 1200 ) Toledo, OH (419) ) Fax: (419) ksilvers@snhslaw.com ) ) Attorney for Appellee Attorneys for Aj5pellants APR CLERK OF COURT PREME COElR T OF OH{^ APR 19 2N0 C^ttil^ ur., ^ :OllK] SUPREME COURI Of OHIO

2 Appellants Mercy St. Vincent Medical Center and Kristen M. Tennant, R.N. ("Appellants") return to this Court seeking basic, yet hardly unprecedented, relief pending their appeal of a $601, tort verdict. Appellants acknowledge that they initially requested this same stay of execution from this Court on February 1, 2013 under S.Ct. Prac. R On March 13, 2013, this Court issued the following one-line entry: "Upon consideration of appellants' motion for stay of the court of appeals' judgment, it is ordered by the court that the motion is denied." (Ex. A.) Based upon that Entry, Appellants presumed they needed to first seek relief from the issuing court (i.e., the court of appeals) before asking this Court to intervene. In the meantime, Appellee demanded immediate payment of the judgment. Accordingly, on March 21, 2013, Appellants moved the Sixth District Court of Appeals ("Sixth District") to stay its January 25, 2013 judgment mandate under App. R. 27. Unfortunately, the Sixth District flatly rejected Appellants' request on April 10, 2013, fmding that this Court's one-iine Entry established a "clear ruling" and "stare decisis" on the merits of Appellants' stay request, and that App.R. 27 did not apply. (Ex. B.) Again, following the Sixth District's decision, Appellee re-issued her demand for immediate payment of the judgment. Here, Appellants have posted a supersedeas bond in the full amount of the $601, judgment. They timely appealed that judgment to the Sixth District as a matter of right. And now they have exercised those same rights and timely sought a discretionary appeal with this Court. There has never been any question about Appellants' ability to pay the judgment at the resolution of this appeal, or the interest that continues to accumulate on it. Ideally, Appellants would rather not have to ask this Court to spend further judicial resources on this issue, but they are at a complete loss and - given the Sixth District's analysis - are now locked in a Catch 22. 2

3 Without the benefit of a stay of execution from either the Sixth District or this Court, Appellants are forced into the untenable position of having to satisfy a judgment while their appeal is still pending, and thus subjecting themselves to an argument that their pending appeal is now moot. According to this Court: Where the court rendering judgment has jurisdiction of the subject-matter of the action and of the parties, and fraud has not intervened, and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away from the defendant the right to appeal or prosecute error * * *. _ Lynch v. Bd of Educ., 116 Ohio St. 361, 156 N.E. 188 (1929), paragraph three of the syllabus; see also, e.g., Koder v. Koder, 6th Dist. No. F , 2006-Ohio-2235, 10 (construing Lynch to mean that "when the part), who owes the n2oney voluntarily pays the judgment instead of obtaining a stay of execution of that judgment, the judgment debtor's appeal is rendered moot.") (emphases added).' In fact, it was Appellee Peter L. Moran, Esq. himself who, in his legal representation of the appellee in Koder, successfully moved to dismiss the marital property portion of that appeal based upon the argument that the appellant in that case voluntarily paid the marital property judgment instead of obtaining a stay. See 2006-Ohio-2235, at Even if Appellants have misunderstood Lynch and Koder and satisfaction does not render this appeal moot, stay of execution is further warranted because it avoids the bizarre possibility that, if this Court accepts review and reverses the jury verdict, Appellants will then See also, e.g., Brickrnan v. Frank G Brickman Trust, 8th Dist. No , 2004-Ohio- 2006, 8 (holding that; even under a letter of protest, the appellant trastees" voluntary satisfaction of a judgment "waives the right to appeal;" instead, the appellant trustees "should have followed the procedures for obtaining a stay of execution and for obtaining a supersedeas bond or its equivalent.") (emphasis added); Francis David Corp. v. Mac Auto Mart, Inc., 8th Dist. No , 2010-Ohio-1215, (defendants appealed execution of judgment by garnishment, but did not seek a stay; "Because defendants failed to avail themselves of a`viable legal remedy' [i.e., a stay of execution], we fmd that they voluntarily satisfied the underlying judgment, rendering their appeal moot.") 3

4 have to re-coilect that judgment from Appellee at a time when Appellee may no longer be collectable. In short, stays of execution are designed to avoid unnecessarily injecting these types of issues into an appeal so the parties - and this Court - can focus on the merits, not the money. Again, Appellants have posted bond to protect the Appellee's interest during appeal, and will accede to posting additional "adequate" bond to protect Appellee's interest in that judgment interest while this Court decides the merits of the appeal. For these reasons, Appellant respectfully requests that this Court grant them a stay of any execution of the lower court's judgment pending final resolution of this appeal. Respectfully su j2rffes ^'(BiVea ^ 001 ( fi887) Timothy D. Krugh16900) ason M. Van Dam ( ) R, Curphey & O'Connell, LLC Attorneys for Appellants Toledo, Ohio April 18, 2013 CERTIFICATE OF SERVICE The foregoing was this day mailed to Kyle A. Silvers, S' er, Neff, Holmes, Worline & Mohler, LLP, 300 Madison Avenue, Suite 1 0, To/^o, O 4 604, Attorney for Appellee. ^ 4

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6 TFLEC? C`^he $uprme Touxt vf tv c^k ^^ COUR -1 St^PREIV'iF COURT OF OH;i: Peter L. Moran, Esq., Administrator of the Case No Estate of Richard L. Elzay, Deceased ENTRY V. Mercy St. Vincent Medical Center, et al. This cause is pending before the court as a jurisdictional appeal. Upon consideration of appellants' motion for stay of the court of appeals' judgment, it is ordered by the court that the motion is denied_ (Lucas County Court of Appeals; No. L-11-I281) Maureen O'Connor Chief Justice

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8 04/10/ :46 fieceived Rnr :47am COURT OF AP PAGE 01/63 a'^ A^^P^`^ALS 2013 APR 14 A t^ 45 ( - ^ ^^ g =^+N;1^ Q^!^-^ CI^^^K GF CQ ^T5 IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCASCOUNTY ' Peter L. Moran, Esq., Administrator of the Estate of Ricbard L. Elzay, Deceased Court of Appeals No. L Trial Court No. C Appel.lee/Cros s-appel lant V. Mercy St. Vincent Medical Center, et al. Appel lant/cross-appellee DECISION AND JUDGMENT Decided: 'ARR 1 'Q 2013 ***** Tkiis matter is pending before the court upon appellants' motion for a stay of execution of the judgment ostensibly filed pursuant to App.R. 27. For the reasons to be enumerated in detail below, this court finds the instant motion to be in contravention of stare decisis, counter to the plain language of App.R. 27, and denies same. This matter stems &ona a medical malpractice wrongful death action originating in the death of decedent in 2008 while under medical treatment at St. Vincent Mercy Medical Center ("SV1VIIvIC"). On June 27, 2011, jury trial comruenced_ On June 30, ^ ^:.^. \.w!^..i ^.' ^ ^^' 1. t-juurnauzed APR

9 Received 04/10/ : RDr :47am COIJRT OF AP PAGE 62/ , the jury unanimously awardcd $600,000 to appellee upon a finding of negligent care of the decedent proximately causing his death. On July 15, 2011, appellants ftled a motion for a new trial. On September 1, 2011, the motion for a new trial was den.ied. Tb.e matter was subsequently appealed to this court- On January 25, 2013, this court unanimously denied the merit appeal. On February 1,, 2013, appellants filed a notice of appeal and a motion to stay execution of the judgment with the Supreme Court of Ohio. On March 13, 2013, the Supreme Court of Ohio denied appellants' motion for stay of execution ofjudsment- On March 18, 2013, appellee's counsel requested payment of the judgment to appellee given the Ohio Supreme Court's binding denial of appellants' motion for stay of execution of the judgment. In tum, on March 21, 2013, appellants inexplicably filed an App.R. 27 motion for a stay of execution of the judgment. ^. with this court despite a clear ruling on the matter from the Supreme Court of Ohio. It is well-established that a court of appeals is bound by decisions of the highest judicial tribunal in the state of Ohio, the Supreme Court of Ohio. Decisions of the Supreme Court of Ohio must be regarded as law by lower courts unless and until they are potentially reversed in the firiure by the Supreme Court of Ohio. State v. Bethel, 10th Dist. No. 07-AP-810, 2008-Ohio-2597, 25_ Consistent with the abov^-dcscribed controlli^g legal principle, ^+c similerly''note, `., ; ^ ^ that the plain. language of App.R 27 ^make9 it abundantly clear t4at the ap ^plicatioiz of the ^,.. r '.. '., 1 - xp^le extends solely to lawer cvuzts, The rule states in perinent part, ''A court af appeals. s.. :. '..-'. ' ' ^ may remand its fiiial de^rees, judgments or orders, in cases brought, befo're it on appeal, to ' -.., ^

10 Received Rpr :47am 04/10/ : C'AURT OF AP PAGE 83/03 the court or agency below for specific or general execution thereof, or to the court below for further proceedings therein." Appellants seek to utilize App.R 27 in an applicati.om affecting an existing ruling issued by the bigber court, contrary to the plain language of App.R. 27. We find that appellants' proposed utilization of App.R. 27 in an e#f"ort to stay the execution of a judgment, whose stay of execution has already bee.n, denied by the Supreme Court of Ohio, rims directly counter to both the law of the case and the express language of App.IL 27. Tki.e denial of'stay of execution of-thc judgrnent is the law of this case as established by Supreme Court of Ohio and applicable to all. lower courts. Wherefore, we find no legitimate legal basis in support of appellants' motion to stay execution of the judgment. It is denied. Mark L. Pi kowski J. Arlene Si er P.S. Thomas I. Osowik. J. CONCIJR, JVJJVC. -.,.r^ 3.