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COURT OF COMMON PLEAS TTAMTLTON COUNTY, OHIO


Cesn No. 413o1595

RACY WI N KLER OMMON PLEAS COURTS

LISAMCQUEEN, ETAL.,
Pr,erNrrnns V

Jurcn Rosnnr \^NKLER

MILTON DOHONEY, JR.,


A-L.t

ET

DnrnNueNrs.

DEFENDANTS' MOTION AUTOM.ATI JUDGMBNT PURSUANT TO 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. The
City 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 government
on appeal. Rule 6z(C), "Stay in Favor of the Government," provides:

When an appeal is taken by this state or political subdivision, or administrative agency of either, or by any officer thereof acting in his representative capacity and the operation or enforcement of the judgment is stayed, no bond, obligation or other security shall be required from the appellant.

Civ.R.6z.
The Ohio Supreme Court recently restated the ruie: "Civ.R. 6z patently and

unambiguously imposes on the court of common pleas and its judges the duty to issue a
stay without a supersedeas bond upon an appeal and request for stay by a political

subdivision. In such a circumstance, the availability of alternative remedies such


discretionary appeal from the court of appeals' setting of a supersedeas bond is

as a

immaterial." State ex rel. EIec. Classroom of Tomorrorl u. Cuyahoga Cty. Court of


CommonPleas, rz9 Ohio St.gd 3o, zon-Ohio-626, 95o N.E.zdt4g,llzg. See also State
ex rel. Ocaseku. Riley, S4 Ohio St.zd 4BB, 4go, 977 N.E.zdZgz (tgZB)

(trial court lacks

discretion to deny stay; holding evidentiary hearing on stay request was "inappropriate proceeding"). Further, the First District Court of Appeals has already ruled that the stay in favor
of the government applies as a matter of right, even in referendum cases.

ln Concerned

Wyoming Citizens u. Cty of Wyoming, rst Dist. No. Co6oSS4 (July 26, zoo6, copy
attached as Exhibit A), a group of citizens wanted a referendum to prevent Wyoming

from contracting to complete a municipal facility. The citizens alleged that they had
sufficient signatures to force a referendum vote. The trial court enjoined Wyoming from entering 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 the
stay. Following Rule 6z(C) and Ohio Supreme Court precedent, the First District held

that municipalities are entitled to a stay as a matter of right.


This case is no different. Under controlling Ohio Supreme Court and First

District

case

law, the City is entitled to an automatic stay pursuant to Rule 6z(C). The

City requests that the Court grant this motion and enter the automatic stay.
Respectfully submitted,

JOHN P. CURP City Solicitor

/s/ Terrqnce A. Nestor

Terrance A. Nestor (oo6S8+o) Assistant City Solicitor Aaron M. Herzig (ooZggZt) Deputy City Solicitor Room zr4, City Hall Bor Plum Street

Cincinnati, Ohio 452c2

Ph. Fax.

(Srg) SS2-9927 (SrS) 952-1515 E-mail: terry.nestor@cincinnati-oh.gov

Trial Attorney for


CERTIFICATE OF SERVICE

I hereby certifiz that a copy of the foregoing was served by email on April g,
on the following:

2oLB

Curt C. Hartman B74g Fox Point Ct. Amelia, Ohio 45roz hartmanlawfirm @ fuse. net Christopher P. Finney Finney, Stagnaro, Saba & Patterson z6z3 Erie Ave. Cincinnati, Ohio 45zo9 CPF@FSSP-Law.com Attorneys for Plaintiffs

/s/ Terrence A. Nestor

IN THE COURT OF APPEALS


APPELLATE DISTRTCT OF OHIO

(-

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:

HAMILTON COUNTY, OHIO

i tiilffiililtffiil1ilililililIililtffiffiilrffi
D69320568

CONCERNED WYOMING CIT]ZENS,

APPEAL NO. C-060554 TRIAL NO. M-060676 JUDGMENT ENTRY GRANTING MOTION OF DEFENDANT. APPELLANT FOR STAY OF THE INJUNCTION

Plaintiff-Appellee,
VS.

CITY 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 Court
pursuant

to S.Ct.R.Rep.Op. 3(A).
City of Wyoming, appeals the judgnrent of the Hamilton

Defendant-appellant,

County Court of Common Pleas denying its motion for a stay of the trial coun's order
enjoining the construction of a municipal swimming pool. On June 14,2006, plaintiff-appellee, Concerned Wyoming Citizens ("CWC"), filed
a conrplaint seeking temporary, preliminary, and permanent injunctions to prohibit the City

front entering into a contract to construct a municipal aquatic center. CWC alleged that it had obtained a suffcient number of signatures to place the issue
of the center's construction on the November 2006 ballot.

OHIO FIRST DISTI.ICT COURT

OT

APPEALS

In a judgment

entered June 30, 2006, the trial courl granted CWC's motion for

injunctive relief, enjoining the City fi'om entering into a contract for the construction of the
center

mtil after the results of the vote had been certified by the Hamilton County Board of

Elections. 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 the
injunctive 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. We
agree.

The Supreme Court of Ohio has consistently held that a municipal subdivision is entitled to a stay of a trial court's judgment as a matter of lularshal v. Curl,l the court held that the granting

right. ln State ex rel. Fire

of a stay under Civ,R. 62 was not

discretionary and that a writ of prohibition would le to prevent a trialjudge from conducting
an evidentiary hearing on the propriety of a stay.

Sirnilarly, n State ex rel. Geauga Bd. Of Cty, Commrs. v. Miiligan,2 the court held
that a writ of prohibition would lie to prevent the trial judge from conducting a hearing on the 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 a


supersedeas bond as a prerequisite to a stay.

CWC contends that the City is not entitlecl to a stay as a matter of right, given
what CWC argues is the unique factual pattem presented in this case. CWC argues that the 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 Ohio st.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.

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JUL'2 0 200

OHIO FIRST DISTRICT COURT OF APPEALS

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

We are not persuaded by CWC's argument. CWC has not cited any authority for
the proposition that a stay is discretionary where a party seeks injunctive relief against
a

municipality. And given the Supreme Court of Ohio's clear pronouncements that a stay
is to be granted as a matter of right, we hold that the trial court erred in denying the City's

motion for a stay, Accordingly, we reverse the trial court's order with respect to the stay and hereby
grant 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, which shali 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 per order of the Court

of the Court on Jul y 26,2006

Presiding Judge

HlrryRfit
JUL 26 2006

COURT OF COMMON PLEAS HAMTLTON COUNTY, OHIO


Casn No. Ar3o159S

LISAMCQUBEN, ETAL.,
Pr-erNrrpns
V.

Jurcn RonnnrWrNKLER

MILTON DOHONBY, JR.,


AL.t

ET

ENTRY GRANTING STAY

DrpnNrexrs

This matter comes before the Court on the City's Motion for a Stay. Having
reviewed the arguments of the parties, and being in all ways fuily advised, it is the Ord.er of this Court that its Order and Entry Granting Motion for Declaratory Judgment and

Permanent Injunction entered on March zB, zotg, is hereby STAYED pending appeal. A
stay in favor of a government without bond is automatic under Ohio Rule of Civil Procedure 6z(C). The Court is without discretion to deny the City's Motion.
So ORDERED,

this

day of April, zor3.

Judge