mcqueen motion for stay (4!9!2013)

7/28/2019 McQueen Motion for Stay (4!9!2013)

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APR * S rijJSLIEK (lFHAMILTON puftlsoouN.r'Y

RACY WI NKLEROMMON PLEAS COURTSCOURT OF COMMON PLEASTTAMTLTON COUNTY, OHIOLISAMCQUEEN, ETAL.,

Pr,erNrrnns

MILTON DOHONEY, JR., ETA-L.t

Cesn No. 413o1595Jurcn Rosnnr \^NKLERDEFENDANTS' MOTIONAUTOM.ATI

V

JUDGMBNT PURSUANT TODnrnNueNrs. RULE 6e(CI

Defendants Milton Dohoney, Jr. and the City of Cincinnati (collectively, the"City") move the Court to stay its judgment pending the City's appeal in this case. TheCity is entitled to a stay as a matter of right. A proposed entry is attached.

The Ohio Rules of Civil Procedure provide an automatic stay for the governmenton appeal. Rule 6z(C), "Stay in Favor of the Government," provides:

When an appeal is taken by this state or political subdivision, or administrativeagency of either, or by any officer thereof acting in his representative capacity andthe operation or enforcement of the judgment is stayed, no bond, obligation orother security shall be required from the appellant.Civ.R.6z.

The Ohio Supreme Court recently restated the ruie: "Civ.R. 6z patently andunambiguously imposes on the court of common pleas and its judges the duty to issue astay without a supersedeas bond upon an appeal and request for stay by a politicalsubdivision. In such a circumstance, the availability of alternative remedies such as adiscretionary appeal from the court of appeals' setting of a supersedeas bond is


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immaterial." State ex rel. EIec. Classroom of Tomorrorl u. Cuyahoga Cty. Court ofCommonPleas, rz9 Ohio St.gd 3o, zon-Ohio-626, 95o N.E.zdt4g,llzg. See also Stateex rel. Ocaseku. Riley, S4 Ohio St.zd 4BB, 4go, 977 N.E.zdZgz (tgZB) (trial court lacksdiscretion to deny stay; holding evidentiary hearing on stay request was "inappropriateproceeding").

Further, the First District Court of Appeals has already ruled that the stay in favorof the government applies as a matter of right, even in referendum cases. ln ConcernedWyoming Citizens u. Cty of Wyoming, rst Dist. No. Co6oSS4 (July 26, zoo6, copyattached as Exhibit A), a group of citizens wanted a referendum to prevent Wyomingfrom contracting to complete a municipal facility. The citizens alleged that they hadsufficient signatures to force a referendum vote. The trial court enjoined Wyoming fromentering into the construction contract and allowed the referendum process to proceed.Wyoming asked the trial court for a stay of its permanent injunction under Rule 6z(C),which the trial court denied. The First District reversed the trial court and entered thestay. Following Rule 6z(C) and Ohio Supreme Court precedent, the First District heldthat municipalities are entitled to a stay as a matter of right.

This case is no different. Under controlling Ohio Supreme Court and FirstDistrict case law, the City is entitled to an automatic stay pursuant to Rule 6z(C). TheCity requests that the Court grant this motion and enter the automatic stay.

Respectfully submitted,JOHN P. CURPCity Solicitor/s/ Terrqnce A. Nestor


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Terrance A. Nestor (oo6S8+o)Assistant City SolicitorAaron M. Herzig (ooZggZt)Deputy City SolicitorRoom zr4, City HallBor Plum StreetCincinnati, Ohio 452c2Ph. (Srg) SS2-9927Fax. (SrS) 952-1515E-mail: [email protected] Attorney for CCERTIFICATE OF SERVICE

I hereby certifiz that a copy of the foregoing was served by email on April g, 2oLBon the following:Curt C. HartmanB74g Fox Point Ct.Amelia, Ohio 45rozhartmanlawfirm @ fuse. netChristopher P. FinneyFinney, Stagnaro, Saba & Pattersonz6z3 Erie Ave.Cincinnati, Ohio [email protected] for Plaintiffs

/s/ Terrence A. Nestor


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IN THE COURT OF APPEALSAPPELLATE DISTRTCT OF OHIO

HAMILTON COUNTY, OHIO

(- -- -'ri tiilffiililtffiil1ilililililIililtffiffiilrffi :D69320568

CONCERNED WYOMING CIT]ZENS, APPEAL NO. C-060554TRIAL NO. M-060676Plaintiff-Appellee, JUDGMENT ENTRY GRANTINGMOTION OF DEFENDANT.

APPELLANT FOR STAYOF THE INJUNCTIONCITY OF WYOMING,

Defendant-Appellant.

This appeal came on for hearing on the Court's motion calendar under App.R. 15(A)and Loc.R.4(C), and this Judgment Entry shall not be considered an Opinion of the Courtpursuant to S.Ct.R.Rep.Op. 3(A).

Defendant-appellant, City of Wyoming, appeals the judgnrent of the HamiltonCounty Court of Common Pleas denying its motion for a stay of the trial coun's orderenjoining the construction of a municipal swimming pool.

On June 14,2006, plaintiff-appellee, Concerned Wyoming Citizens ("CWC"), fileda conrplaint seeking temporary, preliminary, and permanent injunctions to prohibit the Cityfront entering into a contract to construct a municipal aquatic center.

CWC alleged that it had obtained a suffcient number of signatures to place the issueof the center's construction on the November 2006 ballot.

VS.


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OHIO FIRST DISTI.ICT COURT OT APPEALS

In a judgment entered June 30, 2006, the trial courl granted CWC's motion forinjunctive relief, enjoining the City fi'om entering into a contract for the construction of thecenter mtil after the results of the vote had been certified by the Hamilton County Board ofElections. The cout certified that its judgment was a final appealable order.

The City then filed a motion with the trial court to stay its judgment granting theinjunctive relief and the trial court denied the City's motion for a stay.

The City now argues that the trial court erred in denying its motion for a stay. Weagree.

The Supreme Court of Ohio has consistently held that a municipal subdivision isentitled to a stay of a trial court's judgment as a matter of right. ln State ex rel. Firelularshal v. Curl,l the court held that the granting of a stay under Civ,R. 62 was notdiscretionary and that a writ of prohibition would le to prevent a trialjudge from conductingan evidentiary hearing on the propriety of a stay.

Sirnilarly, n State ex rel. Geauga Bd. Of Cty, Commrs. v. Miiligan,2 the court heldthat a writ of prohibition would lie to prevent the trial judge from conducting a hearing onthe county's motion for stay because the county was entitled to a stay as a matter of right,

And pursuant to Civ.R. 62(C), a municipal subdivision is rtot required to post asupersedeas bond as a prerequisite to a stay.

CWC contends that the City is not entitlecl to a stay as a matter of right, givenwhat CWC argues is the unique factual pattem presented in this case. CWC argues thatthe granting of a stay would effectively permit the City to circumvent the trial court's

' 87 Ohio St.3d 568,2000.Oho-248,72?N,E.2d 73, citing Stare ex rel. Ocqsekv. Riley, (1978),54 Ohiost.3d 488, 490,377 N.8.2d792.- 100 Ohio St.3d 366,2003-Ohio-608,800 N.E.2d 361, at'lll5, citingCurl, supra, and Ocasek, supra.

sl{ rsnR nr, [ 2JUL'2 0 200


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OHIO FIRST DISTRICT COURT OF APPEALS

grant of injunctive relief and to proceed with the contract despite CWC's effbrts to bringthe issue to a vote.

We are not persuaded by CWC's argument. CWC has not cited any authority forthe proposition that a stay is discretionary where a party seeks injunctive relief against amunicipality. And given the Supreme Court of Ohio's clear pronouncements that a stayis to be granted as a matter of right, we hold that the trial court erred in denying the City'smotion for a stay,

Accordingly, we reverse the trial court's order with respect to the stay and herebygrant lhe City's motion for a stay of the injunction pursuant to Civ.R. 62.

Further, a certified copy of this Judgment Entry shall constitute the mandate, whichshali be sent to the trial court under App,R, 27. Costs shall be taxed under App.R, 24.[Irr-oBnRi{DT, P.J., Do.rrx and Patnrrn,.IJ.To the Clerk:

Enter upon the J of the Court on July 26,2006per order of the Court Presiding Judge

HlrryRfitJUL 26 2006

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COURT OF COMMON PLEASHAMTLTON COUNTY, OHIO

LISAMCQUBEN, ETAL.,Pr-erNrrpnsV.

MILTON DOHONBY, JR., ETAL.t

Casn No. Ar3o159SJurcn RonnnrWrNKLER

ENTRY GRANTING STAY

DrpnNrexrs

This matter comes before the Court on the City's Motion for a Stay. Havingreviewed the arguments of the parties, and being in all ways fuily advised, it is the Ord.erof this Court that its Order and Entry Granting Motion for Declaratory Judgment andPermanent Injunction entered on March zB, zotg, is hereby STAYED pending appeal. Astay in favor of a government without bond is automatic under Ohio Rule of CivilProcedure 6z(C). The Court is without discretion to deny the City's Motion.

So ORDERED, this day of April, zor3.

Judge

mcqueen motion for stay (4!9!2013)

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