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LISAMCQUEEN, ETAL.,
Pr,erNrrnns V
ET
DnrnNueNrs.
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
as a
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
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,
Terrance A. Nestor (oo6S8+o) Assistant City Solicitor Aaron M. Herzig (ooZggZt) Deputy City Solicitor Room zr4, City Hall Bor Plum Street
Ph. Fax.
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
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D69320568
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.
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
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,
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.
sl{
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JUL'2 0 200
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.
Presiding Judge
HlrryRfit
JUL 26 2006
LISAMCQUBEN, ETAL.,
Pr-erNrrpns
V.
Jurcn RonnnrWrNKLER
ET
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
Judge