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Morell v. O'Donnell

Court of Appeals of Ohio, Eighth District

September 11, 2013

DAN A. MORELL, JR. RELATOR
v.
JUDGE JOHN P. O'DONNELL, ETC. RESPONDENT

Writ of Prohibition Motion No. 465356 Order No. 466779.

ATTORNEYS FOR RELATOR Dan A. Morell, Jr. Michael D. Schmit Dan Morell & Associates L.L.C.

ATTORNEYS FOR RESPONDENT For Judge John P. O'Donnell Timothy J. McGinty Cuyahoga County Prosecutor By Charles E. Hannan, Jr. Assistant County Prosecutor.

For Wade and Kathleen Rome T. Christopher O'Connell Michael R. Stavnicky Singerman, Mills, Desberg & Kauntz.

JOURNAL ENTRY AND OPINION

KENNETH A. ROCCO, J.

(¶ 1} Relator, Dan A. Morell, Jr. ("Morell"), filed this original action requesting this court to issue a writ of prohibition ordering respondent, Judge John P. O'Donnell, of the Cuyahoga County Court of Common Pleas, to refrain from exercising any continued jurisdiction in Rome v. Seidlemann, Cuyahoga County C.P. No. CV-726993 (hereinafter the "underlying action"). Specifically, Morell seeks a writ of prohibition that prevents Judge O'Donnell from enforcing the subpoena served on Morell and from taking any further action on a motion to show cause why Morell should not be held in contempt of court for his alleged failure to respond to the subpoena in the underlying action. Respondent has filed a motion for summary judgment, which we grant for the reasons that follow.

(¶2} Judge O'Donnell presided over the underlying action. It is undisputed that Morell was not a party to that case but instead represented a creditor of plaintiff Wade Rome in an unrelated matter. The underlying action was settled and dismissed. However, additional proceedings ensued with regard to enforcing the settlement agreement and culminated in the contempt proceedings that lead to this original action. The point of conflict between Morell and Judge O'Donnell is whether the trial court retained jurisdiction over the post-dismissal proceedings.

(¶ 3} Judge O'Donnell issued a journal entry in the underlying action on September 13, 2012, which provided:

Case called for second day of trial 9/13/2012. Parties and counsel present. Court reporter Maureen Povinelli present. Before trial resumed, counsel advised the Court that settlement has been reached. Therefore, the trial is canceled and this case is removed from the Court's active docket. The parties are given leave to file a more detailed final entry of dismissal. Court cost assessed as each their own.

On September 24, 2012, Judge O'Donnell issued another journal entry that provided:

The Court has received correspondence from Plaintiffs' counsel dated 9/21/2012 alleging that the defendant's have not abided by the recent settlement agreement. The Court construes that letter, which was copied to opposing counsel, as an oral motion to enforce the settlement agreement, and a hearing is set on that oral motion as follows:
hearing set for 10/02/2012 at 03:00 PM. Courtroom 18-D, Judge John P. O'Donnell.

The notice of dismissal that was filed on October 19, 2012 provided:

Plaintiffs and Defendants, by and through their respective undersigned counsel, jointly stipulate pursuant to Civ.R 41(A)(1)(b) that the within matter is dismissed with prejudice, that the Court shall retain jurisdiction over this matter ...

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