CLERK OF COURT SUPREME COURT OF OHIO. CLERKCI^ COUR1 SUpREME COURT t3f OHIO IN THE SUPREME COURT OF OHIO STATE OF OHIO EX REL.

Transcription

1 IN THE SUPREME COURT OF OHIO STATE OF OHIO EX REL. RENEE ENGELHART, Appellant, vs. Case No On Appeal from the Cuyahoga County Court of Appeals Eighth Appellate District HONORABLE NANCY MARGARET. Court of Appeals RUSSO, JUDGE. Case No Cuyahoga County Court of Connnon Pleas Appellee. MERIT BRIEF OF RELATOR/APPELLANT RENEE ENGELHART John C. Greiner ( ) (COUNSEL OF RECORD) GRAYDON HEAD & RITCHEY LLP 1900 Fifth Third Center 511 Walnut Street Cincinnati, OH Phone: (513) Fax: (513) COUNSEL FOR APPELLANT, RENEE ENGELHART Charles E. Hannan, Jr. ( ) (COUNSEL OF RECORD) The Justice Center, Courts Tower, 8a' Floor 1200 Ontario Street Cleveland, OH Phone: (216) Fax: (216) COUNSEL FOR APPELLEE, HONORABLE NANCY M. RUSSO CLERK OF COURT SUPREME COURT OF OHIO CLERKCI^ COUR1 SUpREME COURT t3f OHIO

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii INTRODUCTION...1 STATEMENT OF FACTS AND PROCEDURAL POSTURE...1 STANDARD OF REVIEW...2 ARGUMENT...3 PROPOSITION OF LAW NO. 1 A JUDGMENT IS NOT EFFECTIVE UNTIL THE CLERK ENTERS IT UPON THE JOURNAL...4 PROPOSITION OF LAW NO. 2 A LOCAL RULE OF PRACTICE THAT ATTEMPTS TO MAKE A JUDGMENT EFFECTIVE BEFORE THE CLERK ENTERS IT ON THE JOURNAL IS INCONSISTENT WITH THE OHIO RULES OF CIVIL PROCEDURE AND UNENFORCEABLE...8 PROPOSITION OF LAW NO. 3 WHEN A COURT ACTS DESPITE A PATENT AND UNAMBIGUOUS LACK OF JURISDICTION, RELATOR IS ENTITLED TO A WRIT OF PROHIBITION AND MANDAMUS WITHOUT REGARD TO WHETHER THE RELATOR LACKS AN ADEQUATE LEGAL REMEDY...10 CONCLUSION...11 CERTIFICATE OF SERVICE...11 APPENDIX (1-18) Agpx. Page Notice of Appeal to the Ohio Supreme Court (May 26, 2011)...1 Journal Entry of the Court of Appeals of Ohio, Eighth District, Cuyahoga County (May 16, 2011)...3 Opinion of the Court of Appeals of Ohio, Eighth District, Cuyahoga County i

3 (May 16, 2011)...4 SUPPLEMENT ( 1-29) Sunu. Page Complaint for Writ of Prohibition and Writ of Mandamus (February 7, 2011), part of Exhibit A to Relator's Motion for Summary Judgment...1 Affidavit of Deborah Carothers in Support of Complaint for Writ of Prohibition and Writ of Mandamus (February 7, 2011), part of Exhibit A to Relator's Motion for Summary Judgment...5 Relator's Notice of Dismissal (January 12, 2011, 3:48 p.m.), part of Exhibit A to Relator's Motion for Summary Judgment...7 Journal Entry of the Court of Common Pleas of Cuyahoga County (January 12, 2011, 4:05 p.m.), part of Exhibit A to Relator's Motion for Summary Judgment...8 Docket Information for State of Ohio ex rel. Renee Engelhart v. Brecksville-Broadview Heights City School Dist., CV , February 25, February 4, 2011, part of Exhibit A to Relator's Motion for Summary Judgment...9 Journal Entry of the Court of Common Pleas of Cuyahoga County (January 31, 2011, 4:02 p.m.), Exhibit B to Relator's Motion for Summary Judgment...29 Affidavit of Keith Hurley, Chief Deputy, Clerk of Court for Cuyahoga County (March 14, 2011), Exhibit B to Respondent's Motion for Summary Judgment...30 ii

4 TABLE OF AUTHORITIES Cases: Pame Billings v. Friedland (September 16, 1999), Cuyahoga App. No , 1999 WL Conley v. Jenkins (1991), 77 Ohio App.3d 511, 602 N.E.2d Doe v. Shaffer (2000), 90 Ohio St.3d 388, 738 N.E.2d Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d Lima v. Elliot (1964), 6 Ohio App.2d 243, , 35 0.O.2d 427, 429, 217 N.E.2d 878,881...:...6 New Destiny Treatment Ctr., Inc. v. Wheeler, Ohio Selker & Furber v. Brightman (2000), 138 Ohio App.3d 710, 742 N.E.2d Shesler v. Consolidated Rail (June 17, 2004), Cuyahoga App. No , 2004 WL , Ohio :...6, 7 Standard Oil Co. v. Grice (1975), 46 Ohio App.2d 97, , 345 N.E.2d State ex rel. Ballard v. O'Donnell (1990), 50 Ohio St.3d 182, 553 N.E.2d State ex rel. Fifth Third Mtge. Co. v. Russo, 2011 WL , 2011-Ohio , 8 State ex rel. Keogh v. Gilmore (1941), 39 N.E.2d 860, , 35 Ohio Law Abs , 10 State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335, 1997-Ohio-340, 686 N.E.2d , 6 Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 554, 597 N.E.2d Witt v. Lamson (August 3, 2006), Cuyahoga App. No , 2006 WL , Ohio Constitutional Provisions; Statutes; Rules: Ohio Constitution, Section 5(B), Article 1V...8, 9 R.C R.C (E)...6 iii

5 Ohio Civ.R. 41(A)... in passim Ohio Civ.R. 41(A)(1)...3 Ohio Civ.R Ohio Civ.R in passim Ohio Civ.R. 58(A)... in passim Former Ohio Civ.R Ohio Civ.R. 83(A)...8 Rule 5 of the Ohio Rules of Superintendence...9 Rule 27 of the Ohio Rules of Superintendence...9 Local Rule 19 of the Court of Common Pleas of Cuyahoga County, General Division...4, 8, 9 iv

6 I. INTRODUCTION Appellant Renee Engelhart ("Ms. Engelhart") filed a Complaint for a Writ of Prohibition and a Writ of Mandamus to compel Appellee Judge Nancy M. Russo ("Judge Russo") to carry out her judicial duties imposed by law and to further enjoin, restrain, and prohibit her from exercising jurisdiction and further proceeding in any manner with respect to State ex rel. Engelhart v. Brecksville-Broadview Hts. City School Dist., Cuyahoga County Court of Common Pleas, Case No. CV ("the underlying action"). Ms. Engelhart seeks an order to compel Judge Russo to vacate her order of January 25, 2011, that struck Ms. Englehart's previously filed voluntary notice of dismissal, as well as all other orders issued after the timely filing of that dismissal. Ms. Engelhart also asks that the Court command Judge Russo to reinstate the voluntary notice filed on January 12, Both parties filed motions for summary judgment. Due to its misinterpretation of Rule 58, Ohio Rules of Civil Procedure, the Court of Appeals improperly granted summary judgment in favor of Judge Russo, denying Ms. Engelhart's complaint for the extraordinary writs of prohibition and mandamus. II. STATEMENT OF FACTS AND PROCEDURAL POSTURE On January 12, 2011, at 3:48 p.m., Ms. Engelhart, through her attorney, Deborah Carothers ("Ms. Carothers") dismissed the underlying action by fihng a Notice pursuant to Rule 41(A), Ohio Rules of Civil Procedure. (Supp. 7 and 12). At 4:05 p.m., the clerk for Court of Common Pleas of Cuyahoga County received for filing and thereafter journalized Judge Russo's grant of summary judgment for the defendants in the underlying action. (Supp. 2, 6, 8, and 12). From January 13 and through February 4, 2011, Judge Russo continued to exercise jurisdiction over the underlying action. (Supp. 2 and 9-12). On January 13, the underlying defendants filed a Motion to Strike/Motion to Deem Moot and Untimely Relator's Notice of 1

7 u Dismissal, and Motion to Show Cause (hereinafter "the January 13 Motion"). (Supp. 11). On January 25, 2011, Judge Russo "granted" the January 13`" Motion. (Supp. 2 and 10-11). Judge Russo also issued an order requiring Ms. Engelhart and Ms. Carothers to appear and show cause why each should not be held in contempt. (Supp ). In addition, Judge Russo stated that she would conduct a hearing on the underlying defendants' motion for sanctions at that time. At the January 31s` show cause hearing, Judge Russo granted the underlying defendants' motion for sanctions against Ms. Carothers and, without citing any legal authority or precedent for doing so, made a finding that Ms. Carothers had attempted to perpetrate a fraud on the court by filing the notice of disniissal. (Supp. 10 and 29). On February 3, Ms. Carothers appealed that finding in the appellate court (Case No ). That appeal is pending. On February 4, Judge Russo recused herself from the underlying action. (Supp. 9-10). On February'>, Ms. Engelhart initiated this original action in prohibition and mandamus against Judge Russo. (Supp. 1-4). Both parties filed motions for summary judgment. On May 16, the appellate court entered judgment in favor of Judge Russo. (Appx. 3-18). On May 25, Ms. Engelhart timely filed her appeal of right. (Appx. 1-2). The appellate court erred in granting Judge Russo's motion and denying the requested extraordinary writs of prohibition and mandamus. III. STANDARD OF REVIEW The Court reviews cases decided on summary judgment de novo, governed by the standard set forth in Rule 56, Ohio Rules of Civil Procedure. New Destiny Treatment Ctr., Inc. v. Wheeler, Ohio- 2266, 9[24 (citations omitted). A trial court should enter summary judgment in favor of the moving party only if "`(1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence

8 that reasonable minds can come to but one conclusion when viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party.' " Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243, quoting Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. IV. ARGUMENT There is no question that a court patently and unambiguously lacks jurisdiction to proceed with a case once a plaintiff files Noti ce of Dismissal pursuant to Rule 41(A). State ex rel. Fifth Third Mtge. Co. v. Russo, 2011 WL , 2011-Ohio-3177, 1 12 (citations omitted). There is no question that a plaintiff has an absolute legal right to voluntarily terminate an action once without prejudice at any time prior to the actual commencement of trial. See Ohio Civ.R. 41(A). Ohio courts have held that a party may file a Rule 41(A) dismissal after the trial court has announced a decision on the merits but before the clerk journalizes the judgment entry. See, e.g., Witt v. Lamson (August 3, 2006), Cuyahoga App. No , 2006 WL , Ohio-3963 (plaintiffs had the right to dismiss their action before the clerk journalized an adverse summary judgment ruling); Conley v. Jenkins (1991), 77 Ohio App.3d 511, 602 N.E.2d 1187 (Rule 41(A)(1) allowed plaintiff to file a notice of dismissal even where plaintiff filed the notice after learning that the court intended to journalize an adverse decision); Standard Oil Co. v. Grice (1975), 46 Ohio App.2d 97, , 345 N.E.2d 458 (plaintiff timely filed Rule 41(A)(1) Notice, even though plaintiff filed it after the court rendered an adverse decision on the merits, but before the journalization of that decision). Thus, the only question here is whether plaintiff filed the Rule 41(A) Notice before the summary judgment became effective pursuant to Rule 58(A). There is no dispute that she filed it 3

9 before the clerk time-stamped the judgment entry as "received for filing." The dispute is over what constitutes journalization. Because the appellate court misinterpreted Rule 58, and applied Local Rule 19 of the Court of Common Pleas of Cuyahoga County, General Division, ("Loc.R. 19") in a manner inconsistent with Rule 58, this Court should reverse the appellate court's ruling. PROPOSITION OF LAW N0.1. A.Tudglnent Is Not Effective Until The Clerk Enters It Upon The Journal. The appellate court's error is apparent from this passage at page 8 of its holding: "7ournalization of a judgment entry requires that: (1) the judgment is reduced to writing; (2) signed by a judge; and (3) filed with the clerk so that it may become a part of the permanent record of the court. Id. at 78. See also, State ex rel. Hanley v. Roberts (1985), 17 Ohio St.3d 1, 476 N.E.2d 1019; State v. Ginocchio (1987), 38 Ohio App.3d 105, 526 N.E.2d 1366; William Cherry Trust v. Hofmann (1985), 22 Ohio App.3d 100, 489 N.E.2d 832." (Appx. 13). The court's reference to a quartet of cases decided before 1989 means that it relied on a previous version of Rule 58 that no longer exists. The pre-1989 version of Rule 58 provided in pertinent part: "A judgment is effective only when filed with the clerk for journalization." (Emphasis added.) Under this version of Rule 58, the clerk's receipt of the judgment was the operative event. Rule 58 was amended in 1989 and the rule now provides: "A judgment is effective only when entered by the clerk upon the journal" (Emphasis added.) Under the current version of Rule 58 the operative event is not the clerk's receipt of the judgment, but rather his affirmative act of entering it upon the journal. The appellate court decided this case based on the pre-1989 version of Rule 58. In its holding the appellate court determined that the trial court's transmission of the signed entry at 4

10 2:25 p.m. to the "queue of electronically transmitted documents... to be processed by the Clerk of Courts for Cuyahoga County" rendered the judgment effective. (Appx. 7). The appellate court expressly noted that the clerk did not process the judgment until 4:05 p.m. (Appx. 8 and 16). Thus, the clerk could not have entered the judgment on the journal before 4:05 p.m. When Ms. Engelhart filed the Rule 41(A) Notice at 3:48 p.m., she did so before the clerk had entered the judgment upon the journal and before the summary judgment was effective. The filing of a notice of voluntary dismissal does not require court approval and automatically terminates the case without any intervention by the court. Selker & Furber v. Brightrnan (2000), 138 Ohio App.3d 710, 714, 742 N.E.2d 203. (emphasis added). The court patently lacked jurisdiction to proceed from that moment forward. The appellate court's citation to State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335, 1997-Ohio-340, 686 N.E.2d 267, is misplaced, except that it supports Ms. Engelhart. (Appx. 16). In White, relator-appellee, Anthony White, was charged in Bedford Municipal Court with domestic violence, a misdemeanor offense. On September 30, 1996, the case came on for trial before Judge David E. Griffiths. Upon motion of the prosecutor, the charge was amended to disorderly conduct. After conducting a short hearing, Judge Griffiths accepted White's no contest plea and found him guilty. Judge Griffiths sentenced White to ten days in jail, suspended, and fined him $100 plus court costs. Judge Griffiths recorded his oral decision on White's case file jacket and initialed the decision. On October 1, 1996, the next day, Judge Griffiths issued a journal entry vacating his September 30, 1996 ruling. Judge Griffiths set December 9, 1996 as the trial date for White's case on the original charge of domestic violence, and ordered that the fine and costs be refunded. 5

11 In response, White filed a complaint for a writ of prohibition in the Court of Appeals for Cuyahoga County to prevent the Bedford Municipal Court from vacating the September 30, 1996 disorderly conduct conviction and sentence and from proceeding on the original charge of domestic violence. The Supreme Court rejected White's petition for a writ of prohibition because the September 30 decision was not an effective judgment. The court ruled that the clerk's placement of information from the September 30, 1996 decision on the computerized docket was not tantamount to journalization of the decision. Dockets and journals are distinct records kept by clerks. See R.C ("The clerk of court of common pleas shall keep at least four books[:] * * * the appearance docket, trial docket ***, journal, and execution docket."); see also, R.C (E). A docket is not the same as a journal. Lima v. Elliot (1964), 6 Ohio App.2d 243, , 35 0.O.2d 427, 429, 217 N.E.2d 878,881. In Shesler v. Consolidated Rail (June 17, 2004), Cuyahoga App. No , 2004 WL , Ohio-3110, 120, the Eighth District Court of Appeals held that the trial court's signed judgment entry upon the court's Complex Litigation Automatic Docket was not equivalent to the clerk's journalization of the decisions as required by Rule 58(A). The appellate court noted that despite the trial court's intention, due to Rule 58(A) requirements, it was apparent that "entry of judgment" did not occur until the clerk entered the judgments upon the journal. Id. at 1 16 (emphasis added). Therefore, post-judgment interest began accruing on the date of journalization, as opposed to the date the trial judge entered the signed judgment entry on the electronic docket. Although Shesler constitutes binding precedent on the Eighth District Court of Appeals, and despite the fact that the facts in Shesler are virtually 6

12 identical to the facts here, the court inexplicably ignored Shesler in reaching its decision in this case. Judge Russo placed her decision on an electronic docket at 2:25 p.m. But that act did not constitute journalization. According to Rule 58, only the entry by the clerk on the journal constitutes journalization. The clerk stamped the judgment as received for filing at 4:05 p.m. (Supp. 8). Thus, the clerk could not have journalized the entry prior to 4:05 p.m. For this reason, the summary judgment was not effective because Ms. Engelhart filed the Rule 41(A) Notice at 3:48 p.m. The appellate court's contrary holding would nullify, and is therefore inconsistent with, the Civil Rules' requirement that the clerk enter the judgment on the journal. The appellate court's contrary holding would make a judgment effective earlier than the time at which Rule 58 states a judgment becomes effective. As such, the appellate court decision is error as a matter of law. There is simply no evidence that the judgment entry was joumalized before 4:05 p.m. The clerk, in his affidavit, does not state that the entry was journalized at 2:25 p.m. nor does he state that there was "complete" receipt at 2:25 p.m. ("complete receipt" rather than "receipt" is required by Loc.R. 19). The clerk actually states that it was after 4 p.m. when the clerk clicked on the entry, which then entered the document on the court's journal. (Supp ). Neither the clerk nor Judge Russo has or can provide any separate journal to show that the entry was journalized at 2:25 p.m. Neither the clerk nor the judge has stated under oath that the judgment entry was entered on the journal when the document was transmitted to the electronic queue. Judge Russo cannot cite to any authority to support her contention that an electronically-signed judgment entry transmitted to an electronic queue constituted the entry of final judgment. Rule 58(A) mandates journalizarion. 7

13 A Rule 41(A) Notice is self-executing and completely terminates the possibility of further action on the merits of the case upon its mere filing, without court intervention. See Fifth Third Mtge. Co., 2011 WL , 2011-Ohio-3177, at 117, and cases cited therein. The trial court patently lacked jurisdiction to proceed following the Rule 41(A) filing. "If a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition and mandamus will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions." Fifth Third Mtge. Co., 2011 WL , 2011-Ohio- 3177, at 1 12, citing, State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 775, 117. The appellate court thus clearly erred in denying the writs here. PROPOSITION OF LAW NO. 2. A Local Rule Of Practice That Attempts To Make A.Tudgment Effective Before The Clerk Enters It On The Journal Is Inconsistent With The Ohio Rules Of Civil Procedure And Unenforceable. Loc.R. 19 does not support the appellate court's ruling either. That rule provides: "(B) Electronic transmission of a document with an electronic signature by a Judge or Magistrate that is sent in compliance with procedures adopted by the Court shall, upon the complete receipt of the same by the Clerk of Courts, constitute filing of the document for all purposes of the Ohio Civil Rules, Ohio Criminal Rules, Rules of Superintendence, and the Local Rules of this Court * * *` (Emphasis added.) But Loc.R. 19 cannot conflict with the Rules of Civil Procedure promulgated by the Supreme Court. See, e.g., Ohio Civ.R. 83(A) ("A court may adopt local rules of practice which shall not be inconsistent with [the Rules of Civil Procedure] or with other rules promulgated by the Supreme Court..."); Vance v. Roedersheimer(1992), 64 Ohio St.3d 552, 554, 597 N.E.2d 153 ("Any local rule is [therefore] enforceable only to the extent that it is consistent with the Civil Rules"). The Ohio Constitution, Article IV, Section 5(B) vests the Supreme Court with 8

14 exclusive jurisdiction to prescribe rules "governing practice and procedure in all courts of the state..." Thus, Rule 5 of the Ohio Rules of Superintendence provides: "Local rules of practice shall not be inconsistent with rdles promulgated by the Supreme Court." The court of appeals' interpretation of Loc.R. 19 would make a judgment entry effective when a judge electronically transmits it to the clerk. This would be inconsistent with the plain language of Rule 58 which requires that the clerk enter the judgment on the journal to make it effective. As such the appellate court ruling cannot stand. In addition, the appellate court's citation to Rule 27 of the Ohio Rules of Superintendence is wholly misplaced. (Appx. 14). Rule 27 merely allows the adoption of local rules to address the use of information technology. Rule 27 does not allow local rules to supersede or replace rules promulgated by the Supreme Court. The cases cited by the appellate court as support are also misplaced. (Appx. 15). Those particular cases simply acknowledge the effectiveness of an electronic signature. Ms. Engelhart has not challenged the legitimacy of Judge Russo's computer-generated signature on the "entry" at issue. Finally, Loc.R. 19 provides that an electronic transniission of a document with an electronic signature shall, upon the complete receipt of the same by the clerk, constitute filing. The rule does not state, nor can it, that such transmission shall constitute "journalization" for purposes Rule 58(A). The appellate court's ruling must be reversed. 9

15 PROPOSITION OF LAW NO. 3. When a Court Acts Despite a Patent and Unambiguous Lack of Jurisdiction, Relator is Entitled to a Writ of Prohibition and Mandamus Without Regard to Whether the Relator Lacks An Adeguate Remedy at Law. The appellate court also briefly noted that Ms. Engelhart "possesses or possessed an adequate remedy at law" through a direct appeal of the underlying orders. (Appx. 17) The remedy of appeal, which is normally an adequate remedy that prevents the issuance of a writ of mandamus, is irrelevant when an inferior court is without jurisdiction to render a judgment. Billings v. Friedland (September 16, 1999), Cuyahoga App. No , 1999 WL , * 4, citing, State ex rel. Ballard v. O'Donnell (1990), 50 Ohio St.3d 182, 553 N.E.2d 650. In State ex rel. Keogh v. Gilmore (1941), 39 N.E.2d 860, , 35 Ohio Law Abs. 97, a court issued an order changing venue ex parte, prior to the time the defendant had even answered. The court granted the writ of prohibition precluding further proceedings in the new county. The court rejected the argument that defendant had an adequate legal remedy in the form of an appeal. It noted that the circumstances - where the court lacked authority to issue the order - compelled the writ. Judge Russo patently and unambiguously lacked jurisdiction to proceed the minute Ms. Engelhart filed the Rule 41(A) Dismissal Notice. As such, the appropriate remedy is the requested writ of prohibition and mandamus. Appeal of summary judgment, regardless of the ultimate outcome, would not be a remedy that leaves parties as they were before the litigation. Reinstating the voluntary dismissal is the only way that objective can be achieved. Ms. Engeihart has a right to be in the place she was before the litigation started. In this circumstance 10

16 the court must not inquire whether an adequate legal remedy exists. The appellate court erred in doing so. V. CONCLUSION Ms. Engelhart respectfully requests that the Court reverse the decision below. As there is no genuine issue of any material fact, Ms. Engelhart is entitled as a matter of law to a judgment granting the requested writs of prohibition and mandamus. Respectfully submitted, Of Counsel: GRAYDON HEAD & RITCHEY LLP 1900 Fifth Third Center 511 Walnut Street Cincinnati, OH Phone: (513) Fax: (513) O,uY Ca Jo C. Greine ( ) Counsel for Renee Engelhart GRAYDON HEAD & RITCHEY LLP 1900 Fifth Third Center 511 Walnut Street Cincinnati, OH Phone: (513) Fax: (513) j2reiner@praydon.com CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing Merit Brief of Relator/Appellant Renee Engelhart was served by regular U.S. mail, postage prepaid, this 18`h day of July, 2011, upon the following: Charles E. Hannan, Jr., Esq. CUYAffOGA COUNTY PROSECUTOR'S OFFICE 8th Floor Justice Center 1200 Ontario Street Cleveland, OH C- Jo[Ik C. Greiner ( )

17 APPENDIX

18 STATE OF OHIO EX REL. RENEE ENGELHART, IN THE SUPREME COURT OF OHIO ORIGINAL Appellant,. On Appeal from the Cuyahoga Connty Court of Appeals VS.. Eighth Appellate District HONORABLE NANCY MARGARET. Court of Appeals RUSSO, JUDGE Case No CuyaIioga County Court of Common Pleas Appellee. NOTICE OF APPEAL OF RENEE ENGELHART John C. Greiner ( ) (COUNSEL OF RECORD) GRAYDON HEAD & RIICHEYLLP 1900 Fifth Third Center 511 Walnut Street Cincinnati, OH Phone: (513) Fax: (513) COUNSEL FOR APPELLANT, RENEE ENGELHART Charles E. Hannan, Jr. ( ) (CO[SNSEL OF RECORD) The Justice Center, Courts Tower, 8'h Floor 1200 Ontario Street Cleveland, OH Phone:- (216.) Fax: (216) charman cuyahogacounty.us COUNSEL FOR APPELLEE, HONORABLE NANCY M. RU55C) FOdED MAY CLERK OF COURT SUPREME COURT OF OHIO MAY2a l091 QLERK GP CAIIRT,

19 Notice of Appeal of Anvellant Renee En ^*+ Appellant Renee Engelhart hereby gives notice of appeal to the Supreme Court of Ohio from the judgment of the Cuyahoga County Court of Appea]s, Eighth Appellate District, entered in Court of Appeals Case No on May 16,2011. The case originated in the court of appeals. Jo Greiner( ) Co for Appellant Renee Engelhart CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing Appellant's Notice of Appeal was served by regular U.S. mail, postage prepaid, this 25'" day of May, 2011, upon the following: ;Charles E. Hannan, Jr.,Esq. The jnstice Center, Courts Tower, 81h Floor 1200 Ontario Street Cleveland, OH C. Greiner ( ) Counsel for Appellant Renee Engelhart

20 Court of Appeals of Ohio, Eighth District County of Cuyahoga Gerald E. Fuerst, Clerk of Courts MAY 16 Z011 S10 EX REL., RENEE ENGELHART Relator COA NO vs- ORIGINAL ACTlON HON. NANCY MARGARET RUSSO, JUDGE Respondent MOTION NO Date 05116/11 Joumal Entry WRITS DENIED. SEE JOURNAL ENTRY AND OPINION OF SAME DATE SIGNED BY KENNETH A. ROCCO, J., MARY J. BOYLE, P.J,, AND COLLEEN CONWAY COONEY, J., CONCUR. PIL AND JOURNALiZEi1 PER APP.R. 22(0) Presiding Judge MARY J BOYLE, Concurs Judge COLLEEN CONWAY COONEY, Concurs Judge KENNETH A. ROCCO

21 VAV 1 6 2ait Court of ZtppeaYo of (Obio EIGHTH APPELLATE DISTRICT COUNT'Y OF CUYAHOGA JOURNAL ENTRY AND OPINION No STATE OF OHIO EX REL. RENEE ENGELHART vs. RELATOR HONORABLE NANCY MARGARET RUSSO RESPONDENT JUDGMENT: WRITS DENIED Writ of Prohibition and Writ of Mandamus Motion Nos and Order No RELEASE DATE: May 16, 2011

22 -i- FOR RELATOR: John C. Greiner Graydon Heari & Ritchey LLP 1900 Fifth Third Center 511 Walnut Street Cincinnati, Ohio ATTORNEYS FOR RESPONDENT: William D. Mason Cuyahoga County Prosecutor By: Charles E. Hannan, Jr. Assistant County Prosecutor Justice Center - 8"h Floor 1200 Ontario Street Clevel,and, Ohio PILiD AND JOURNALI2EC PER APP,R. 22(C)

23 -1- KENNEfiH A. ROCCO, J.: Renee Engelhart has filed a complaint for the extraordinary writs of prohibition and mandamus. Engelhart, through the complaint for a writ of prohibition, seeks to prevent Judge Nancy Margaret Russo "from exercising jurisdiction and further proceeding in any mannerwith respect to the underlying [ci.vil] action of State ex rel. Engelhart v. Brecksville-Broadvierv His. City School Dist., Cuyahoga County Court of Common Pleas Case No. CV Through the request for a writ of mandamus, Engelhart seeks an order that "command[e] Judge Russo to vacate her order of January 25, 2011, striking Engelhart's voluntary notice of dismissal without prejudice and to vacate all other orders issued after the filing of the Notice of Dismissal; *** commanding [Judge Russo] to reinstate the voluntary notice of dismissal filed by Engelhart on Januaky 12, 2011:" Engelhart and Judge Russo have filetl motions for summary judgment. For the following reasons, we grant Judge Russo's motion for summary judgment and deny Engelhart's motion for summary judgment. Facts The following facts that are pertinent to this original action are gleaned from Engelhart's complaint for a writ of prohibition and mandamus, Judge Russo's motionfor etunmaryjudgment with attached affidavits and exhibits, and Engelhart's motion for summary judgment with attached affidavit and exhibits:

24 .2. (1) Judge Russo was assigned to preside over the civil action of State ex rel. En,gelhart v. Brecksville-Broadview Hts. City School Dist., supra, an action in mandamus that claimed violations of the Ohio Sunshine Law (R.C ) and Ohio's Public Recorda Act (R.C ); (2) On November 16, 2010, the Brecksville-Broadview Heights City School District ("School District") filed a motion for summary judgment in CV ; (3) On December 21, 2010, Engelhart filed a brief in opposition to the motion for summary judgment in CV ; (4) On January 12, 2011, at 11:07 a.m., a person using the personal computer password assigned to Judge Russo'a staff attorney created a journal entry that granted the motion for summary judgment filed by the School District; (5) On January 12, 2011, at 2:25 p.m., Judge Russo employed her personal computer password to electronically sign the journal entry that granted the motion for summary judgment filed by the School District; (6) On January 12, 2011, at 2:25 p.m., the electronically signed journal entry, which granted the School District's motion for summary judgment, entered a queue of electranicaily transmitted documents in order to be processed by the Clerk of Courts for Cuyahoga County; (7) On January 12, 2011, at 2:25 p.m., Judge Rueao employed her peraonal

25 -3- computer password to manually update the status of motions pertaining to CV to reflect that the School District's motion for summary judgment had been granted; (8) On January 12, 2011, at 3:48 p.m., counsel for Engelhart filed a notice of voluntary dismissal of CV with the Clerk of Courts for Cuyahoga County; (9) On January 12, 2011, at 4:05 p.m., a deputy clerk of the Clerk of Courta for Cuyahoga County, responsible for processing the queue of transmitted documents, accessed and processed the electronicaily signed journal entry that had been transmitted electronically by Judge Russo to the Clerk of Courts of Cuyahoga County on January 12, 2011, at 2:25 p.m., which caused the electronically signed journal entry to appear on the electronic docket; (10) On January 13, 2011, the School Distriot filed a"motion to strikemotion to deem moot and untimely [Engelhart's] notice of dismissal, and motion to show cause"; (11) On January 25, 2010, Judge Russo granted the motion to strike-deem moot and held that: "(d]efendant/respondents motion to strike/motion to deem moot is unapposed and granted. The [dismissal without prejudice] filed by the ptaintifflrelator is stricken and the court's issuance of the motion for summary judgment, issued by the court before the filing of the voluntary dismissal stands 8

26 .4. as the final judgment in this case. "The court also notes for purposea of the record that the entry of [summary judgment] in favor of the respondents was created at 11:07 am on January 12; the judge assigned to the case signed that entry at 2:25 pm, which is the actual time of filing by the court of its order; the relator's notice of dismissal was tiaie-stamped on 1/12/11 at 3:48 pm, after the court had updated the pending motion docket and signed the (journal entry] and after the clerk received it for filing. The court also notes that the court's issuance of the granting of the motiori was visible to the parties on the docket of the case and accessible via the county's internet docket system. The court further notes that the plaintiff(relator never provided the court with the time-stamped copy of the dismissal, in violation of the court's standing orders and that the clerk did not place the pleading on the docket until 1/13/11; therefore, the court was not aware, until 1/13/11, of the plaintifft']s knowing attempt to circumvent the court's ruling and voluntarily dismiss this case after the [motion for summary judgment] was ruled upon. "Motion to show cause is set for hearing on 1131/11 at noon; the [attorney] for relator, Deborah Caruthers and the client, Renee Engelhart are ordered to appear and show cause why each should not be held in contempt for the Sling of a voluntary dismissal after the notice from the court of the ruling on the

27 5 motion for summary judgment and for her representations to the court that she could not file her trial brief on time due to weather and travel issues, noting that those same reasons for her inability to file the trial brief (to which the court granted an oral extension to both parties on the morning of Jan.uarq 12, 2011) were not impediments to her attempt to circumvent the court's ruling on the [motion for summary judgment]. The court will also hold a hearing on the respondent's motion for sanctions at that time. CLCCC 01125/2011 notice issued." (12) On January 31, 2011, Judge Russo granted the School Board's motion for sanctions and held that: "[t]he court grants the respondents/brecksville/broadview Bts. School Board [Is motion for sanctions against [attorney] Deborah Caruthers in the amount of $ to be paid on or before noon on 2/7111. The court finds from the statements and evidence that Ms. Caruthers was aware of the court[']s ruling in favor of respondents before she filed the now stricken [dismissal without prejudice] and that she did so in [an] attempt to prejudice the respondents and perpetrate a fraud upon the court. CLPA3:, 01/31/2011 notice issued." (13) On February 3, 2011, an appeal was filed from the order that granted sanctions in the amount of $2,000;1 'See appeal of order granting sanctions as filed in Cuyahoga App. No

28 -6.!(14) On February 7, 2011, Engelhart file her complaint for a writ of prohibition and a writ of mandamus; (15) On March 14, 2011, Judge Russo filed a motion for summary judgment with attached affidavits and other evidentiary material; (16) On April 4, 2011, Engelhart filed her brief in opposition to Judge Russo's motion for summary judgment and also filed her own motion for summary judgment. Legal Analysis In the case sub judice, Engelhart argues that she is entitled to a writ of prohibition and a writ of mandamus because the trial court was without jurisdiction to grant summary judgment on behalf of the School District and to issue post judgment motions that ordered the notice of voluntary dismissal stricken and granted sanctions in the amount of $2,000. Specifically, Engelhart argues that the Civ.R. 41(A)(1)(a) notice of voluntary dismissal took precedence over the order that granted summary judgment for the School District, since the notice of voluntary dismissal was timed-stamped by the Clerk of Courts of Cuyahoga County on January 12, 2011, at 3:48 p.m. and the order granting summary judgment was time-stamped on January 12, 2011, at 4:05 p.m. Engelhart argues that Judge Russo was without jurisdiction to grant summary judgment and enter other post-judgment rulings since CV had previously 11

29 -7- been voluntarily dismissed. Prohibition A writ of prohibition constitutes a legal order that is intended to enjoin a subordinate court from acting beyond the scope of its jurisdiction. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 1998-Ohio-275, 701 N.E.2d In order for this court to issue a writ of prohibition, Engelhart must demonstrate that: (1) Judge Russo is about to or has exercised judicial power; (2) the exercise of the judicial power is not authorized by law; and (3) a denial of the writ of probibition will result in injury for which no other adequate remedy exists in the ordinary course of the law. State ex rel. Sliwinski v. Burnham Unruh, 118 Ohio St.3d 76, 20Q8-Ohio-1734, 886 N.E.2d 201; State ex ret. Lipinski v. Cuyahoga Cty. Courts of Common Pleas, 74 Ohio St.3d 19, 1996-Ohio-96, 655 N.E.2d An adequate remedy at law will preclude relief in prohibition. State ex rel. Lesher v. Kainard (1981), 65 Ohio St.2d 68, 417 N.E.2d 1382; State ex rel. Sibareo Corp. v. Berea (1966), 7 Ohio St.2d 85, 218 N.E.2d 428. Furthermore, absent a patent and nnambiguous lack of jurisdiction, a court having general subject-matter jurisdiction over an action possesses the legal authority to determine its own jurisdiction, and a party challenging its jurisdiction has an adequate remedy at law by way of a post-judgment appeal. Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm., 74 Ohio St.3d 120,1996-Ohio-302, 666 N.E.2d 12

30 In the case sub judice, Engelhart argues that a Civ.R. 41(A)(1)(a) notice of voluntary dismissal was filed with the Clerk before the jouxnalization of the order that granted summary judgment. Engelhart argues that her notice of voluntary dismissal was filed on January 12, 2011, at 3:48 p.m., while the order granting summary judgment was journalized by the clerk on January 12, 2011, at 4:05 p.m. Thus, Engelhart argues that Judge Russo was divested of jurisdiction to grant summary judgment and strike the notice of voluntary dismissal. The key issue before this court is the time of journalization of the order that granted summary judgment vie-a-vis the usage of an electronic signature. It is axiomatic that a court speaks only through its journal and a judgment entry is effective only when it has been journalized. San b'ilipo v. San Filipo (1991),. 81 Ohio App.3d 111, 610 N.E.2d 493; State v. Ellington (1987), 36 Ohio App.3d 76, 521 N.E.2d 504. Journalization of a judgment entry requires that: (1) the judgment is reduced to writing; (2) signed by a judge; and (3) filed with the clerk so that' it may become a part of the permanent record of the court. Id. at 78. See, also, State ex rel. Hanley v. Roberts (1985), 17 Ohio St.3d 1, 476 N.E.2d 1019; State v. Ginocchio (1987), 38 Ohio App.3d 105, 526 N.E.2d 1366; Wzlliam Ch.erry Trust v. Hofmann (1986), 22 Ohio App.3d 100, 489 N.E.2d 832.

31 -9- Ordinarily, a trial court judgment entry is reduced to a written document, physically signed by a judge, and then physically filed with the derk so that the judgment entry becomes a permanent part of the court's record. Advancements in computer technology have allowed for the implementation of an electronic signature that may be used in place of a judge's physical signature. The Supreme Court of Ohio, through Sup.R. 27, has promulgated minimum gtandards allowing for a court to adopt a local rule that authorizes the use of an electronic signature to authenticate an electronic judgment entry. Pursuant to Sup.R. 27, the Cuyahoga County.Court of Common Pleas; on September 28, 2005 and as amended on December 16, 2008, adopted Loc.R of the Court of Common Pleas of Cuyahoga County, General Division, which provides that: "(A) The following definitiona shall apply to this rnte: "'Elect,ronio' and'eleetronic Signature' have the same meaning as used in section of the Ohio Revised Code. "The term Document' indudes journal entries, notices, orders, opinions, and any other filing by a Judge or Magistrate of this Court. "(B) Electronic transmission of a document with an electronic signature by a Judge or Magistrate that is sent in compliance with procedures adopted by the Court. shall, upon the complete receipt of the same by the Clerk of Courts, constitute filing of the document for all purposes of the Ohio Civil Rules, Ohio 14

32 -10- Criminal Rules, Rules of Superintendence, and the Local Rules of this Court * * *"' (Emphasis added.) Loc.R. 19.1(B) specifically provides that receipt by the clerk of an electronic "document," that contains an electronic signature, constitutes fili.ng underthe Ohio Civil Rules.$ The affidavit of Keith Hurley, Chief Deputy of the Clerk b Courts of Cuyahoga County, as attached to Judge Russo's motion for summary judgment, establishes that: (1) Ajudge of the Cuyahoga County Court of Common Pleas may transmit to the Clerk of Courts for Cuyahoga County any document with an. electronic signature; (Hurley affidavit at 2.) (2) Any document electronically transmitted to the Clerk of Courts for Cuyahoga County enters a queue in order to be placed upon the electronic docket; (Hurley affidavit at 3.) (3) On January 12,2011, at 11:07 a.m., Judge Russo or her staff attorney created an electronic journal entry in CV that granted summary judgment for the School District; (Hurley affidavit at 7.) (4) On January 12, 2011, at 2:25 p.m., Judge Russo electronically signed 'This court has established that Cuyahoga County Common Pleas Court Loc.R authorizes the use of electronic signatures, and has upheld the use of electronic signatures. See State v. Townsend, Cuyahoga App. No , 2010-Ohio-5147; State v. Anderson, Cuyahoga App. No , 2010-Ohio-2085; State u. Pinkney, Cuyahoga App. No , 2010-Ohio

33 -11- the electronic journal entry that granted summary judgment for the School District and transmitted the electronically signed journal entry to the Clerk of Courts of Cuyahoga County; (Hurley affidavit at 18.) (5) On January 12, 2011, at 4 p.m., a notice of voluntary dismissal was filed by Engelhart in CV ; (Hurley affidavit at 110.) (6) On January 12,2011, at 4:05 p.m., a deputy clerk of the Clerk of Courts of Cuyahoga County processed the electronic queue of electronically transmitted documents, which contained the electronic journal entry that granted summary judgmpt.it for the School District. (Hurley affidavit at 111.) " Based upon Loc.R and the sworn affidavit of Hurley, it is readily apparent that Engelhart cannot establish that Judge Russo was patently and unambiguously without the necessary judicial authority to strike the notice of voluntary dismissal. The electronic journal entry, which granted summary jiidgment, was electronically signed and electronically transmitted to the clerk at 2:25. p.m., on January 12, The notice of voluntary dismissal was not filed with the clerk until 4 p.m. on January 12, In addition, the clerk's placement of the information from the electronic journal entry on the electronic docket did not constitute journalization of the order that granted summary judgment for the Brecksville-Broadview Heights City School District. See State ex ret. White v. Junkin, 80 Ohio St.3d 335, 1997-Ohio-340, 686 N.E.2d 267.

34 -12- Clearly, the order granting summary judgment was journalized prior to the filing of the notice of voluntary dismissal. The failure of Engelhart to establish that Judge Russo was patently and unambiguously without jurisdiction to grant summary judgment and strike the notice of voluntary dismissal prevents this court from issuing a writ of prohibition. State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252, 922 N.E.2d 214. To the contrary, the facts in this original action demonstrate that Judge Russo possessed the necessary jurisdiction to grant summary judgment for the School District and strike the notice of voluntary dismissal. Stcite ex rel. Sliwinski, supra. It must also be noted that Engelhart possesses or possessed an adequate remedy at law. State es rel. Hughley v. McMonagle, 121 Ohio St.3d 536, Ohio-1703, 905 N.E.2d Engelhart possesses or possessed an adequate remedy at law through a direct appeal of the orders that granted summary judgment for the School District and struck the notice of voluntary dismissal. Cf. State ex rel. Jaffal v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107. Mar+.damus Engelhart's request for a writ of mandamus is premised upon the supposition that a writ of prohibition would issue against Judge Russo. 17

35 -13- SpecificaIIy, Engelhart seeks a writ of mandamus that requires Judge Russo to vacate the journal entry that granted summary judgment for the School District, vacate the entry that ordered the notice of voluntary dismissal stricken and thereby reinstate the notice of voluntary dismissal, and vacate all other orders issued after the filing of the notice of voluntary dismissal. Our decision to deny the request for a writ of prohibition renders the request for a writ of mandamus moot. State e.z rel. Konoff v. Shafer, 80 Ohio St.3d 294, 1997-Ohio-119, 685 N.E.2d 1248; Martin u. Judges of the Lucas Cty. Court of Common Pleas (1990), 50 Obio St.3d 71, 552 N.E.2d 906. Accordingly, we grant Judge Russo's motion for summary judgment and deny Engelhart's motion for summary judgment. Costs to Engelhart. It is further ordered that the Clerk of the Eighth District Court of Appeals serve notice of this judgment upon all parties as required by Civ.R. 58(B). Writs denied. KENNETH A. ROCCO, JUDGE NIARY J. BOYLE, P.J. and COLLEEN CONWAY COONEY, J., CONCITR. 18