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.
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