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Oops – Gibson’s Bakery Seeks To Execute On $36 Million Appeal Bond Since Oberlin College Failed To Obtain Stay Of Appeals Court Mandate

Oops – Gibson’s Bakery Seeks To Execute On $36 Million Appeal Bond Since Oberlin College Failed To Obtain Stay Of Appeals Court Mandate

Motion filed in trial court today: “If Defendants wanted to stay execution of the mandate of the Ninth District Court of Appeals, they were required to seek that stay in the Ohio Supreme Court. They did not. Plaintiffs are entitled to judgment on the surety bond ….”

As posted recently, Oberlin College is seeking to have the Ohio Supreme Court hear an appeal from the massive $32 million judgment entered after jury trial in the Lorain County Court of Common Pleas as affirmed by the 9th District Court of Appeals.

There has been an appeal bond in place since trial issued by Zurich American Insurance Company securing the judgment plus future interest in the amount of $36 million, as a condition of a stay of judgment issued by the trial court.

In the Court of Appeals decision, the court noted on the very last page something that didn’t mean much to me at the time (emphasis added):

We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

It does not appear that Oberlin College sought a stay of that mandate pending appeal to the Ohio Supreme Court. The Gibsons have just filed a Motion to Enter Judgment Against Surety Zurich American Insurance Company in the trial court arguing, in part:

Plaintiffs Gibson Bros., Inc. and Lorna J. Gibson, as the executor and representative of the Estate of David R. Gibson and the Estate of Allyn W. Gibson ( collectively “the Gibsons”) respectfully request that this Honorable Court enter judgment against the surety Zurich American Insurance Company, Bond No. 9280167 in the amount of $36,127,181.25 plus $4,331.19 per diem from the date of filing. A chart calculating the judgment per diem is attached for the Court’s convenience as Exhibit 1. There is no valid stay of execution of judgment remaining, and the Gibsons are entitled to judgment in accordance with the mandate from the Ninth District Court of Appeals.

The Preliminary Statement describes the arguments:

Nearly three years ago, a jury of Lorain County citizens took an oath, served through a nearly six-week trial, carefully deliberated, and found Oberlin College and its Dean of Students liable for their ruinous accusations and intentional conduct aimed at the Gibsons. Much has happened since, including the tragic deaths of David and Allyn Gibson-neither of whom lived to see justice done for their family and its business. The bakery continues to labor under the effects of the stigma created by Defendants, but without the relief awarded by the jury.

It is now time to honor the jury’s verdict. It is time to execute on the judgment awarded by them, entered by this Court, and affirmed by a unanimous panel of the Ninth District Court of Appeals.

The stay of execution entered by this Court only had the power to stay its own judgment. If Defendants wanted to stay execution of the mandate of the Ninth District Court of Appeals, they were required to seek that stay in the Ohio Supreme Court. They did not. Plaintiffs are entitled to judgment on the surety bond as provided by RC. 2505.20.

Here is the calculation attached as Exhibit 1 to the Motion:

The Motion goes on to describe statutes and Ohio Supreme Court decisions that support immediate execution of the appeals court mandate in this situation.

But what about the stay issued by the trial court, doesn’t that save Oberlin College? Not according to the Gibsons’ filing:

It is anticipated that Defendants will attempt to argue that this matter is still stayed under this Court’s November 19, 2019 order. At Defendants’ request, that order provided that “the Court’s previous stay of execution of the judgment shall continue until the exhaustion of all of the Defendant’s appeals.” However, this Court’s order could only stay its own judgment-it cannot operate to stay the mandate of the Ninth District-which was ordered two years and four months after this Court’s order. Ohio Rule of Appellate Procedure 7 governs stays on appeal from the trial court’s judgment through the date of the appellate decision. Following the court of appeal’s decision, Ohio Rule of Appellate Procedure 27 governs such stays. It provides:

A court of appeals may remand its final decrees, judgments, or orders, in cases brought before it on appeal, to the court or agency below for specific or general execution thereof, or to the court below for further proceedings therein. A certified copy of the judgment shall constitute the mandate. A stay of execution of the judgment mandate pending appeal may be granted upon motion, and a bond or other security may be required as a condition to the grant or continuance of the stay.

App.R. 27. Defendants have not obtained a stay of execution of “the judgment mandate” as required by App.R. 27.

In conclusion, the Gibson’s argue it’s too late to for Oberlin College to do anything:

As Judge Painter succinctly stated in a case where the defendant failed to secure the proper bond pending appeal: “An appeal was filed without a stay, and the plaintiff then got the money.” Wiest v. Wiegele, 170 Ohio App.3d 700, 868 N.E.2d 1040, 2006-Ohio-5348 (1st Dist.). Under Ohio law, this case also concludes just as simply ..

The Ninth District Court of Appeals issued a mandate affirming this Court’s judgment. The Ninth District ordered this Court “to carry this judgment into execution.” Defendants failed to seek a stay of that mandate. The Gibsons respectfully request that this Honorable Court enter judgment against the surety Zurich American Insurance Company, Bond No. 9280167 in the amount of $36,127,181.25 plus $4331.19 per diem. A chart calculating the judgment per diem is attached for the Court’s convenience. Then this Court can also declare, as Judge Painter did, “[w]ith our decision today, this case is finally over.” Id at 12.

I don’t know if Oberlin College was anticipating this motion, I tend to think not otherwise they would have moved for a stay of the appeals court mandate. So this probably has ruined someone’s weekend, particularly if it turns out that someone dropped the ball on staying the appeals court mandate.

Should the Gibsons prevail on this motion, the case is over and Oberlin College’s appeal to the Ohio Supreme Court is moot. I don’t know if that would also moot the Gibsons’ Cross-Appeal, which seeks to restore the full punitive damage jury verdict that was reducted under tort reform. [added 6:40 p.m. – On further reflection, I’m not sure collecting on the bond technically moots the case. Unless there is some Ohio law to the contrary, in theory Oberlin could continue its appeal and seek the money back if it wins in the Ohio Supreme Court. But remember, the Ohio Sup. Ct. doesn’t have to take the case, it’s discretionary, and the plaintiffs having been paid may influence it not to take the case given its limited docket.]

We will, of course, continue to follow this case.

[Featured Image: Gibson Family Attorneys Owen Rarric and Lee Plakas][Photo Credit: Legal Insurrection Foundation]

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Comments

Small details are always important.

Let’s hope the good guys win this one

2smartforlibs | May 27, 2022 at 5:35 pm

Legal eagles missed that, Really?

ugottabekiddinme | May 27, 2022 at 5:47 pm

Good work by the Gibson legal team to have been watching and on top of the civil rules. Gotta love civil procedure.

However, the pendency of the cross-appeal has me wondering if this order and mandate will be revised by the court. Does their order address that at all? Can Gibson withdraw the appeal if they just want this to be over?

The same lawyers that thought out the stunning strategy in the first place must have overlooked this. You would think that a college with an endowment like theirs would have hired better

The battle will now be Surety Zurich American Insurance Company trying to recover the money from Oberlin. Another insurance company can tide the appeal from that judgment over when they win.

    Milhouse in reply to rhhardin. | May 29, 2022 at 11:35 am

    As I understand it, it’s not the insurance company’s money, it’s Oberlin’s money that the insurance company was holding in escrow. Or is that not the case?

Now, Oberlin’s attorney’s malpractice carrier will argue that this “clerical mistake’ did not harm Oberlin because Oberlin had absolutely no chance of winning at the Ohio Supreme Court!

This is just harmless error!

Is legal counsel for Oberlin on hook for the money should Oberlin sue them?

Thomas Sowell has a YouTube video on how Oberlin was a major institution for bringing Blacks into the mainstream of professional America in the late 1800’s. Such a rich heritage squandered.

    rhhardin in reply to alaskabob. | May 27, 2022 at 7:19 pm

    When I was at Oberlin long ago blacks had the same qualifications to get in as whites and so nobody thought anything about it.

      The Gentle Grizzly in reply to rhhardin. | May 27, 2022 at 7:48 pm

      Were they offering “studies” majors, or did they take real majors like everyone else?

ugottabekiddinme | May 27, 2022 at 6:08 pm

“Why would Gibson want this over?”

Possibly because two of the Gibson family involved in the business have died since this started. Or because $36 + million in hand is a substantial sum that either could put the business back on its feet if they want to stay, or provides a nice financial cushion if they want to put this bend them and get the heck out of a place that has nothing but malice towards them. Extra bonus: Zurich will go after Oberlin to recoup whatever they pay out on the bond, so that’s nice, too.

ugottabekiddinme | May 27, 2022 at 6:09 pm

bend=behind

Louis K. Bonham | May 27, 2022 at 6:15 pm

Oh, this is beyond rich. Oberlin appears to have screwed up, big time.

If the surety bond company doesn’t immediately pay up (which they probably will — if memory serves, Oberlin put funds into escrow to cover the bond), then what is fun to imagine if if the Gibsons send the sheriff over to Oberlin and start carting away chattel property to be sold at auction to cover the judgment.

Start with the college computer servers and IT infrastructure equipment, and then all the furniture in the offices of the President and Provost.

    Don’t forget all the crayons and craft paper the SJWs use to make their protest signs.

    Those must be worth a small fortune!

    The college has an extensive and very valuable art collection, the local sheriff can start taking works off the walls and from storage. Then they can offer them up for auction.

    jakebizlaw in reply to Louis K. Bonham. | May 28, 2022 at 1:35 pm

    Undoubtedly, the bond was collateralized by Oberlin liquid assets. The surety company is obligated to write the plaintiffs a check for the amount of the judgement plus interest. The plaintiffs do not have to levy physical assets. If no stay can be reinstated, Oberlin has a nice legal malpractice case to mitigate its losses, which will turn on the likelihood that the Ohio Supreme Court would reverse the verdicts.

    Not a lot of resale value in a bunch of used office & classroom equipment and years-old dormitory furniture.

    In practical purposes, if you’re grabbing property to cover a judgement, you start with bank accounts. Cash is king, and locking down an account is easy. If all you can get a thumb on is the checking account, that’s fair game. If there’s not enough in there to satisfy the judgement, make *sure* your order from the judge covers any and all accounts. Once salary checks start bouncing, they may be dumb enough to transfer a large sum into the account, or to create another checking account to cover new checks. Nab that too.

    If you *have* to start collecting property, start with vehicles. Tow ’em. If they’re leased instead of purchased, tow ’em back to the dealership and see how much of the lease can be cashed out. Make sure to inform the dealership that the judgement cleaned out any cash reserves, so if they try to lease a replacement, the dealership is going to get stiffed on payment.

      Louis K. Bonham in reply to georgfelis. | May 28, 2022 at 3:48 pm

      Guys, I’m not focusing on the most effective method of reducing the judgment to cash — you just levy on the bond or seize bank accounts to best do that. (FYI, I’ve collected many millions for my clients on judgments “the hard way,” via seizures, turnover orders, fraudulent conveyance suits, asset freezes, constructive trusts, etc.)

      It’s a old collection maneuver to grab (or threaten to grab) assets whose value to the defendant is *way* more than their liquidation value as a way to pressure the defendant to cave and pay up.

      Think in terms of what assets could be seized that might not yield much in cash, but would yield massive and outsized impacts on the defendant. E.g., grab the IT infrastructure equipment, and maybe it yields a few thousand bucks at auction. But what’s the impact on Oberlin for having its entire IT infrastructure (including VOIP phone system) taken out? What’s the replacement cost to it, and the cost of the downtime?

      Here, as a mental exercise, I’m thinking of how, if the Gibsons really wanted to, they could inflict maximum pain on Oberlin on top of collecting every dime they are owed.

        Think38 in reply to Louis K. Bonham. | May 31, 2022 at 3:44 pm

        Here the Gibson’s don’t have to go after the assets of the university. As a condition of the appeal, a bond was put in place to cover the judgment. The Gibson’s collect from the insurance company. The insurance company is the one with the claim on the university’s assets.

          Louis K. Bonham in reply to Think38. | June 1, 2022 at 6:40 pm

          As I noted in the comment you replied to, I well understand that levying on the bond is the shortest distance between the judgment and cash. I’ve been collecting on big judgments I have obtained for my clients for decades.

          My point is that even when you have a bond in place, or could simply levy on bank accounts, etc., you’re not required to start there. If you wish, you can start with collection remedies that will “motivate” the defendant to throw in the towel.

          Suppose the Gibsons simply get the clerk to issue a writ of execution, and head over to campus with the sheriff (with news crews in tow) to start hauling away various chattel property (IT infrastructure equipment, the art collection, the furniture in the President’s office, etc.) to be sold at public auction at an execution sale. If Oberlin doesn’t want that to proceed, it can choose to simply pay the judgment in full and in cash . . . but *voluntarily* paying a judgment raises very serious mootness issues for what’s left of their appeal.

      M Poppins in reply to georgfelis. | May 29, 2022 at 2:53 am

      the university has a valuable art collection

Makes my day joyful and complete. I wonder what Zurich will do!

Oberlin College needs to be ended.

What a kickoff to the weekend!
.

Best of luck to the Gibsons. I think it’s too bad they couldn’t have bitten a judgement with more zeros.

goddessoftheclassroom | May 27, 2022 at 6:57 pm

“I don’t know if Oberlin College was anticipating this motion, I tend to think not otherwise they would have moved for a stay of the appeals court mandate.”

Professor Jacobson, I know only too well how easy it is to make a typo, but please correct this comma splice with a semicolon.

For most of my youth, I wanted to be an English teacher. For a brief period, 6th grade, I wanted to be a lawyer in the ilk of Petrocelli, my hero!–but I knew I could never defend someone I knew was guilty. I didn’t realize, of course, that there were myriad fields of law beyond that in TV shows.

RandomCrank | May 27, 2022 at 7:14 pm

If I were the Gibsons, I’d be inclined to let the interest keep accumulating.

RandomCrank | May 27, 2022 at 7:18 pm

Looks like simple interest, not compound interest. Dang.

Goddess of the classroom or grammar nazi; you decide!

MoeHowardwasright | May 27, 2022 at 8:04 pm

If Oberlin’s attorneys didn’t read the fine print..oh well! Do not pass go and pay the 36 million ++++.

Anyone who does any kind of litigation and appellate work knows that you have to stay the judgment or underlying action, or be prepared to pay up pending the outcome of the appeal. Given how arrogant Oberlin and its attorneys have been, I’m not surprised that they either ignored this or missed it.

I’m assuming they’ll now file something to try to get arround their mistake

It appears that the “woke” were asleep at the switch.

OwenKellogg-Engineer | May 27, 2022 at 9:03 pm

They always say to “Read the fine print”

I think the College might have given up. As the Gibson’s Motion to Enter Judgement noted, the College issued in it Memorandum in Support of Jurisdiction of the Appellants (seeking further appeal in the Ohio Supreme Court), they abandoned all legal arguments, instead appealing to the Supreme Court to consider the appeal from a Social Justice Warrior’s argument, instead of a legal argument. It’s a Hail Mary pass.

It was a logical choice, for the College to not file a Stay. There was little probability of succeeding, so it made more sense to let the Gibsons collect.
That stops the interest payments, while allowing them to recover the money if the Supreme Court accepts the Jurisdiction and they then prevail. The Defense team knows the probabilities are low, so the choice was logical.

    JPL17 in reply to ruralguy. | May 27, 2022 at 11:35 pm

    “It was a logical choice, for the College to not file a Stay.”

    Oberlin Attorney: “Yeah … yeah … That’s the ticket!!!”

    MajorWood in reply to ruralguy. | May 27, 2022 at 11:57 pm

    It would literally be the first evidence of any logic in the entire Oberlin legal strategy.

    Next question. When will heads roll? If the legal stuff is over, then it means that Oberlin can no longer hide behind the “we can’t talk about pending litigation” dodge which has allowed them to hide this from the alumni. So the big Q is, how many alumni are going to continue to donate to a school that wastes their money. Forget everything else. Even if Oberlin won, they still spent about $10M on their own legal costs. That is a lot of money to simply not have to apologize.

    jb4 in reply to ruralguy. | May 28, 2022 at 12:04 am

    Your point is interesting, in that Oberlin may have traded an interest bearing liability to Gibson’s for one possibly without interest to Zurich. If paid, I wonder if Gibson’s lawyers will have to hold the money in escrow pending conclusion of the case? I also wonder who rules on this payment matter and, if payment is ordered, is that further appealable? In other words, is this more than a “stunt” that racks up more legal costs for both sides?

    The_Mew_Cat in reply to ruralguy. | May 28, 2022 at 11:00 am

    If Oberlin’s goal is to get the case into Federal Court on a constitutional argument, they might have to exhaust all state level challenges first before a Fed Judge is willing to take the case, so they might as well pay the judgement, or seek a stay in federal court after the Ohio supremes reject their case.

Down goes Frazier! Down goes Frazier!

I am not an Ohio lawyer. A question is whether the bond that was filed with the appeal to the Ninth District Court of Appeals was also good for the Supreme Court appeal. Certainly, Oberlin could have sought the stay when it filed its Supreme Court appeal, and that stay could have been conditioned upon the filing of a further bond for the duration of the Supreme Court appeal.

The point is that Oberlin stood silent regarding the further stay and any bond as a condition of that stay. Similarly, no judge has ordered a further stay or required a bond pending that stay. Rather, they sent the case back to the district court for execution of the judgment.

The issuer of the bond was paid a fee much less than $31 million. So, it will be very quick to demand payment from Oberlin, who will have to sell off a significant portion of its endowment in a bear market.

By far, the best LI story of 2022.

    jb4 in reply to lawgrad. | May 28, 2022 at 12:12 am

    Oberlin probably has at least a $1.0B endowment even after the recent decline in the market. $36M is not a material percentage on its face, but it might be a material percentage of assets readily convertible to cash. Oberlin’s response to this might be indicative. For example, what if they claim a harmless error (if Gibson’s could do nothing with the money until the case is concluded) and also that the public interest would not be served because of damage to the interests of students?

      buck61 in reply to jb4. | May 28, 2022 at 11:53 am

      If the money was moved into an escrow account controlled by the Gibson legal team or an independent third party, would they be able to claim and keep any interest money earned no matter the outcome? As of now the Gibson family would not be entitled to any funds at all if they lose the appeal.

Could some please explain to a non lawyer, what this all means?? I’ve been following the Gibson case since I read about here a few months before the trial started. God bless the Gibson patriarchs that have passed.

It would be a nice bit of irony if an institution which has explicitly rejected excellence and competency were to bring about the failure of its efforts in this case due to incompetency.

If the cost of the bond pending the Supreme Court appeal was 1%, that would be $360,000. Whatever the actual non-refundable fee that Zurich American Insurance Company could easily be more than what Oberlin was willing to pay, so they ran the risk that the attorney for Gibson Bakery would not notice.

The irony is that they made a lot of money under Trump and lost a lot of that same money under Biden.

Am not a lawyer but couldn’t Oberlin sue their attorneys for incompetence or some other legal definition of poor representation if the Gibsons prevail? It appears the college’s lawyers were as doofus as the prosecutor who tried Rittenhouse.

    Stuytown in reply to Ruckweiler. | May 28, 2022 at 3:08 am

    This is the beauty of the thing. As someone explained above, Zurich could collect Oberlin. Oberlin could then sue its attorneys for malpractice. The attorneys would then likely argue that Oberlin sustained no actual damages from the attorneys’ malpractice because they couldn’t win the case. In other words, Oberlin’s attorneys would argue the same thing as the Gibsons would have argued. It would be beautiful.

Pay the man! Then sue your legal team for malpractice, you litigious bunch of unmentionables.

“So this probably has ruined someone’s weekend, particularly if it turns out that someone dropped the ball on staying the appeals court mandate.”

This is what happens when a lawyer is hired based on biological sex or skin tone, rather than merit.

Terrific if it holds. The only sad part is that Zurich American rather than Oberlin pays the thirty six million, but that’s what insurance companies are for I suppose. Don’t know whose oversight led to this, but perhaps Zurich American can go after Oberlin to recover some of it. Grind. Them. Up.

    MajorWood in reply to Owego. | May 28, 2022 at 12:32 pm

    OK, here is my very cynical non-lawyer take on the matter. Oberlin likely thought that they would prevail with first bullying and then protracted lawfare. We have money, you don’t, we will bankrupt you. The first mistake was not recognizing that the fine people who make up the other 98% of Lorain County, and who sat on the jury, did not seek everything through “woke glasses.” Those fine people recognized the absolute evil that Oberlin was projecting through the evidence obtained in discovery, and they made their decision accordingly. Now Oberlin is really screwed, not only on the money part, but the fact that their, IMHO, unacceptable behavior has been exposed. So now it is all about damage control, which to me is the reasoning behind their desperate attempt to make this a huge First Amendment case, as a way to distract from the likely truth that they are just petty woke buttholes who got called out. IMHO, since June 2019 it has been all about making themselves the victim here to save face, and the latest SNAFU was a part of that attempt. I would not be the least bit surprised to hear this being sold as “we were so close to prevailing with the Ohio Supreme Court, but then our lawyer made a simple clerical error which lost us the case even though we were absolutely going to win in the end because we were right, so send us some money.” Sadly, many of the alumni are equally delusional and they will buy this line of actions and reasoning.

    If I were the Gibsons, I would use the money to set up franchise bakeries near every single upscale undergrad college. Put it out there as a physical reminder of how “get woke, go broke” works in the real world.

    And I don’t think that Zurich American is an insurance company in this case. They are a guarantor of funds, and in order to get that service, Oberlin had to pay them a hefty fee as well as sign over collateral to ZA. Oberlin didn’t pass the buck, they just paid out more money to put off having to face the truth. And I will be disappointed if that truth doesn’t include a bunch of them losing their jobs and becoming otherwise unemployable. Sadly, only 6 of the 26 or so board members are elected by alumni. Otherwise, I’d say toss every one of them who supported this vendetta and start over. Mark my words, though, that anyone who tries to do this will be painted as a white supremacist on day one, because the only certainty here is that Oberlin has learned nothing from this adventure.

      jb4 in reply to MajorWood. | May 28, 2022 at 2:22 pm

      Well put. IMO Oberlin was “toast” once the shoplifters pled guilty and, I recall, stated Gibson’s was not racist; and the arrest data on Gibson’s shoplifting showed no bias. Obviously, Oberlin should have taken the “apologize, not racist, and no money” offer from Gibson’s at the beginning. Absent that, there were other opportunities at ever increasing cost thereafter. It is hard to understand how Amber and Canavan are still there.

      Giving to Oberlin now is like giving to some charity with large overhead. Too much of the money will not go to the beneficiaries that you want to help. Also, since money is fungible, giving to designated pieces of Oberlin would seem to be no better.

        MajorWood in reply to jb4. | May 28, 2022 at 8:44 pm

        Even now I suspect they are trying to figure out how to double-down again. My AA sponsees with less than a year could have handled this better than the Oberlin Board did. I guess even a tiny bit of humility goes a long way. Oberlin has none.

        Ima_Uzer in reply to jb4. | May 31, 2022 at 2:54 pm

        Another problem Oberlin probably had is that they thought their administrators, being “educated” were smarter than the “simple” folks who ran the bakery. That arrogance cost them. They couldn’t conceive a situation where they could possibly be wrong. After all, they’re highly educated!

        Oberlin’s endowment is near $1 billion. Maybe they believe paying out $31 million isn’t going to hurt them too much. It would be like if you had $10,000 in the bank and had to pay someone $300.

        It’s possible that they’re doing this out of pure hubris and narcissism.

Marotta Building Co vs Lesinski 2005-ohio-558.pdf holds that once the judgement is paid, the case is over because it is moot.

The case is over!

    jakebizlaw in reply to ParkRidgeIL. | May 28, 2022 at 1:45 pm

    Wow! Let’s see how Oberlin’s massively overstaffed legal team gins up a claim of excusable neglect to try to reinstate the stay pending appeal!

    Milhouse in reply to ParkRidgeIL. | May 29, 2022 at 1:04 pm

    I read that decision, and it makes no sense to me. The dissent makes much more sense. How can the appeal be moot just because payment has been made, when the appellant has hopes of prevailing and recovering its money? Especially when payment was not really voluntary.

    And a court of appeals decision is of course not binding in the Supreme Court (in OH, where the CoA is lower than the SC). Nor, I would think, is an 11th district decision binding in the 9th district.

      Publius_2020 in reply to Milhouse. | May 30, 2022 at 11:22 am

      I agree — the underlying legal principle depends on voluntary satisfaction of the judgment. (See Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, 245 (“and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy”)).

      In circumstances where the plaintiff executes on assets to collect the judgment, you can’t properly say that the defendant has voluntarily done anything. The cases that correctly find mootness all involve either a voluntary acceptance of the judgment, or a circumstance in the payment of the judgment by defendant A moots any legal interest of defendant B.

smalltownoklahoman | May 28, 2022 at 10:23 am

Hopefully this will be the end of the matter (or close to it) and Oberlin will finally be forced to pay the Gibson family.

tolerancematters | May 28, 2022 at 11:27 am

If the Gibsons and their attorneys, collect the judgement the appeal would be moot (in my non-lawyer mind). Here is my reasoning. If the judgement can be clawed-back that is the equivalent of the judgement never being realized. After all if the Gibsons cannot make use of the money, it is like they have never received it.

It would still be possible for the Gibsons to gain more money with their cross-appeal since that does not impair the Gibsons use of the original judgement.

    I like that logic.

    Publius_2020 in reply to tolerancematters. | May 30, 2022 at 11:12 am

    “When a party pays a judgment that is later invalidated, restitution remains an available and appropriate remedy because the payee has no right to the payment made under the invalidated judgment.” United States v. Stute Co., 402 F.3d 820, 825 (8th Cir.2005).

Interesting. In Hawaii the stay on bond covers the entire appellate procedure.

In my state a satisfaction of the judgment would moot the defendant’s petition and
Their appeal.

The longer the Biden administration stays in office the less valuable that $36 million + becomes. Day by day. I’d want it ASAP. Sooner, even.

The Oberlin legal team includes:
(1) First Amendment attorneys Lee Levine and Seth Berlin from the Washington, D.C., office of the national law firm Ballard Spahr;
(2) appellate attorneys Benjamin Sassé and Irene Keyse-Walker from the Cleveland office of the national law firm Tucker Ellis,
(3) trial counsel from Taft Stettinius & Hollister of Cleveland; and (4) from Wickens Herzer Panza of Avon, Ohio.

There will be years of infighting among the lawyers. My money is on Taft Stettinius & Hollister to wind up “holding the bag” and owing the Insurers.

    Publius_2020 in reply to Lawman_45. | May 30, 2022 at 11:07 am

    If the petition for review is denied, no one has a claim, because there is no damage.

    But even if they were to have a claim, there is a question of duty. It’s not clear that the counsel would have any specific duty to the bond company, which has its own counsel. The bond company is secured by the assets pledged by the defendant Oberlin. So the “harm” suffered really goes to Oberlin, and they can then claim against the law firm. By the time that all sorts out, we’ll know the Ohio Supreme Court result, which will likely moot the issue.

[added 6:40 p.m. – On further reflection, I’m not sure collecting on the bond technically moots the case. Unless there is some Ohio law to the contrary, in theory Oberlin could continue its appeal and seek the money back if it wins in the Ohio Supreme Court.

I thought that when you first wrote this, but was too busy to write a comment. I came back to make this point, and see that you anticipated me.

So here is a thought. What if there is an actual intent to inflict damage on the college coming from the inside? I say this because my neighborhood in Portland has been under seige by vandals for 2 years, who are targeting specific properties, I believe, with the intent to drive down the value for whatever property developer wants to buy them cheap. $50K on spray paint is nothing if it knocks $250K off the selling price.

So, what if Oberlin finds itself in financial trouble, and a wealthy person decides to step in and buy a ready made college for 50 cents on the dollar. The thing is, I actually wonder who would get the money if somethig like this were to happen. It wasn’t much more than 100 years ago when Duke University was known as Trinity college, until purchased or at least heavily funded by the Duke family. And of Course we have Carnegie-Mellon, Rockefeller Univ, etc. I am sure some of the woke billionaires would love to have a college named after them which already has a woke reputation. Anyway, just am attempt to make any sense out of how Oberlin has conducted this whole campaign. Or, maybe a whole bunch of them aren’t that smart. Who knows anymore?

Alex deWynter | May 30, 2022 at 1:47 am

Related question, when will we know if the Ohio Supreme Court will take the case?

Carlton Fisk became a free agent from Boston because the renewal contract was put in the mail one day late. Ooops!

    Ima_Uzer in reply to Yuckster. | May 31, 2022 at 2:27 pm

    I’ve seen situations where a sports league would contest a trade because the paperwork was faxed over ONE MINUTE late.

Publius_2020 | May 30, 2022 at 11:30 am

> “We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.”

Interesting quirk of Ohio law that we have both an appellate Order to the trial court to carry out execution, and a rule that allows for essentially an immediate mandate.

In the state where I usually practice, entry of the mandate would be routinely delayed until the period for petitioning for review has expired. Here, we have a lawful mandate, and apparently no automatic stay based on filing the petition.

But I also find the language of the Order itself to be interesting, because it appears to direct the trial court to carry out execution. That alone would seem to remove any discretion at the trial court level. The trial court is essentially forced to tell Oberlin that it has to seek relief at the Court of Appeal or Supreme Court level.

An appellate bond was in effect when Oberlin lost at the intermediate appellate stage. Oberlin appeals to the Ohio SCt, apparently via cert (?). Oberlin fails to comply with the appellate rule re a bond even as the Ct of Appeals issued language sending the judgment back to the trial level for execution. While Oberlin failed to comply w/the proper rule there seems to be no question an appellant bond protecting Gibson’s was always in effect (unless language in the Zurich contract caused a default b/c Oberlin did not move to “renew” the bond under R.27?).

The issue is not that hard and if Gibsons has not cited law directly on point I do not see a lower court permitting post judgment remedies. Unfortunately

In reality, Oberlin might not really care that much. They have nearly $1 billion in endowment money (as of $2020, it was somewhere around $937 million), so $31 million is a little more than 3% of that.

The problem is, Oberlin seemingly doesn’t know when to say when. They STILL believe they were in the right, and did nothing wrong.

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