State ex rel. Bitter v. Missig - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Bitter et al., Appellants, v. Missig, Clerk,
et al., Appellees.
[Cite as State ex rel. Bitter v. Missig (1995), Ohio
St.3d .]
Courts -- Court of appeals has broad discretion in determining
whether a party has obeyed its writ of mandamus -- Supreme
Court will not reverse court of appeals' decision absent
an abuse of discretion.
(No. 94-2096 -- Submitted March 21, 1995 -- Decided
May 24, 1995.)
Appeal from the Court of Appeals for Ottawa County, No.
94OT039.
On June 5, 1992, appellants, Paul L. Bitter and Sandra L.
Bitter, filed a shareholder derivative action against various
defendants, including appellees Charles L. Jones and Phillip C.
Jones, in the Ottawa County Court of Common Pleas. On March
29, 1994, the common pleas court entered a "Stipulated
Dismissal and Judgment Entry" which approved a "Stock and Asset
Purchase and Sale Agreement" between the parties and adopted it
by reference into the entry. The common pleas court dismissed
the action without prejudice and "with a right to be revived
and refiled *** as set forth in the Agreement," with the court
retaining jurisdiction "to effectuate the terms of the
Agreement of the parties and of this judgment." The terms of
the agreement were to remain confidential until further order
of the court. According to appellants, the agreement is no
longer confidential, and the agreement is contained in the
record on appeal.
The agreement provided that in exchange for the sale to
Charles L. Jones and Phillip C. Jones by appellants of
two-hundred and fifty shares of common stock in J & B Tomato,
Inc. and appellants' ownership interest in land and equipment
used by the corporation and "subject to the performance of
certain additional provisions," Charles L. Jones and Phillip C.
Jones agreed to pay $2,200,000 plus interest in yearly
installments from 1994 through 2000. The agreement set forth
remedies to appellants for a default by the purchasers of
reinstatement and revival of the derivative suit or institution

of an action against the purchasers to recover the entire
unpaid balance plus accrued interest. The agreement further
provided that in the event of default, the party not in default
can "elect to pursue any or all remedies at law or in equity."
Appellants subsequently filed a motion in the common pleas
court for an order authorizing and directing appellee Shirley
J. Missig, clerk of the common pleas court, to examine and
reseal the agreement and to issue, file, docket and index a
certificate of judgment in substantially the form outlined in
an attached praecipe. The praecipe contained a certificate of
judgment in favor of appellants and against Charles L. Jones
and Phillip C. Jones in the amount of $2,200,000 plus interest,
with the installment amounts and due dates delineated.
On June 14, 1994, the common pleas court issued an order
which provided:
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
Clerk of the Ottawa County Court of Common Pleas is hereby
authorized and directed: (1) to examine and then reseal the
Buyout Agreement (currently filed under seal), which agreement
is incorporated into this Court's judgment dated March 29,
1994; and (2) forthwith to issue, file, docket and index a
Certificate of Judgment of the courts [sic] judgment dated
March 29, 1994."
The common pleas court used the form of the proposed order
tendered by appellants, but altered the language of the last
sentence so that it did not order Missig to issue, file, docket
and index a certificate of judgment "in substantially the form
outlined in the Praecipe ***." On June 15, 1994, Missig issued
a certificate of judgment in favor of appellants and against
Charles L. Jones and Phillip C. Jones for $2,200,000 plus
interest in the designated installments. The certificate of
judgment substantially incorporated the outline set forth in
the praecipe.
Charles L. Jones and Phillip C. Jones later advised Missig
that no money judgment had been entered by the common pleas
court and requested her to correct the certificate of
judgment. Missig requested an opinion from Ottawa County
Prosecuting Attorney Lowell S. Petersen concerning the
dispute. The prosecuting attorney concluded that the common
pleas court did not grant a money judgment and that there could
not be a certificate of judgment setting forth the "amount of
the judgment and costs" as required by R.C. 2329.02. The
prosecuting attorney therefore advised Missig to cancel the
certificate of judgment. On July 25, 1994, Missig stamped the
certificate of judgment she had previously issued with "LIEN
CANCELLED," and wrote on the certificate "issued in error" and
"See Attached Letter," which was the letter containing the
prosecuting attorney's opinion.
On July 27, 1994, appellants filed a complaint in the
Court of Appeals for Ottawa County seeking a writ of mandamus
compelling Missig to strike from the certificate of judgment or
otherwise physically remove and void her "issued in error,"
"See Attached Letter," and "LIEN CANCELLED" markings and
reinstate the June 15, 1994 certificate of judgment. After
allowing Charles L. Jones and Phillip C. Jones to intervene as
respondents in the action and conducting a non-evidentiary
hearing, the court of appeals entered judgment on August 11,

1994, ordering its clerk to issue a writ of mandamus ordering
Missig "to issue a certificate of judgment pursuant to the
existing June 14, 1994 order of the Ottawa County Court of
Common Pleas."
On August 15, 1994, Missig issued a certificate of
judgment in which she certified "that on March 29, 1994, a
Judgment was entered *** dismissing without prejudice and with
the right at plaintiff's option to be revived and refiled upon
the occurrence of certain conditions, any and all claims
asserted by Paul L. Bitter and Sandra Bitter *** against
Charles L. Jones *** and Phillip C. Jones *** pursuant to the
terms of a certain Stock and Asset Purchase and Sale Agreement
as approved by and adopted by reference into the judgment
entered in *** Case No. 92CVH-133 ***."
On August 17, 1994, appellants filed a motion in the court
of appeals (1) for an order requiring Missig to show cause why
she should not be held in contempt for her refusal to comply
with the court of appeals' August 11, 1994 judgment, and (2) to
enforce the court of appeals' writ of mandamus. On August 19,
1994, the court of appeals overruled appellants' motion.
On August 22, 1994, Missig, in her capacity as clerk of
the court of appeals, issued a writ pursuant to the court of
appeals' judgment entry, commanding herself in her capacity as
clerk of the common pleas court to issue the certificate of
judgment, as set forth in the trial court's June 14, 1994
order. Appellants filed a second motion for a show cause order
and to enforce the writ of mandamus, which the court of appeals
also denied.
The cause is before this court upon appellants' appeal as
of right from the judgments overruling their motions for a show
cause order and enforcement of the writ of mandamus.

Fuller & Henry, Stephen B. Mosier and Daniel T. Ellis, for
appellants.
Spengler Nathanson and Theodore M. Rowen, for appellee
Shirley Missig.
Eastman & Smith, James F. Nooney and Stuart J. Goldberg,
for appellees Charles L. Jones and Phillip C. Jones.

Per Curiam. Appellants assert in their sole proposition
of law that the court of appeals abused its discretion by
refusing to enforce or compel compliance with its writ of
mandamus. The court of appeals possesses both inherent and
statutory authority to compel compliance with its lawfully
issued orders. Cramer v. Petrie (1994), 70 Ohio St.3d 131,
133-134, 637 N.E.2d 882, 884-885; State ex rel. Johnson v.
Perry County Court (1986), 25 Ohio St.3d 53, 54, 25 OBR 77, 78,
495 N.E.2d 16, 18; R.C. 2705.02(A) (person who disobeys a
lawful writ may be found guilty of contempt).
Courts may punish disobedience of their orders or enforce
them in contempt proceedings. State ex rel. Adkins v. Sobb
(1988), 39 Ohio St.3d 34, 35, 528 N.E.2d 1247, 1248; State ex
rel. Shoop v. Mitrovich (1983), 4 Ohio St.3d 220, 221, 4 OBR
575, 576, 448 N.E.2d 800, 801. "[S]ince the primary interest
involved in a contempt proceeding is the authority and proper
functioning of the court, great reliance should be placed upon
the discretion of the [court]." Denovchek v. Trumbull Cty. Bd.

of Commrs. (1988), 36 Ohio St.3d 14, 16, 520 N.E.2d 1362,
1364. The court that issued the order sought to be enforced is
in the best position to determine if that order has been
disobeyed.
Given the broad discretion that is necessarily vested in
the court of appeals in determining whether a party has obeyed
its writ of mandamus, this court will not reverse the court of
appeals' decision absent an abuse of discretion. State ex rel.
Delco Moraine Div., Gen. Motors Corp. v. Indus. Comm. (1990),
48 Ohio St.3d 43, 44, 549 N.E.2d 162, 163; State ex rel.
Adkins, supra. The term "abuse of discretion" connotes more
than an error of law or judgment; it implies that the court's
attitude is unreasonable, arbitrary or unconscionable. Rock v.
Cabral (1993), 67 Ohio St.3d 108, 112, 616 N.E.2d 218, 222.
Missig, as clerk of the court of common pleas, possesses
duties to issue certificates of judgment and to follow the
orders of the court. R.C. 2303.08 and 2303.26. The court of
appeals issued a writ of mandamus compelling Missig to issue a
certificate of judgment pursuant to the common pleas court's
June 14, 1994 order. Although the court of appeals granted a
writ of mandamus in favor of appellants, it did not grant
appellants' requested writ compelling Missig to reinstate the
June 15, 1994 certificate of judgment, which had specified a
judgment in appellants' favor of $2,200,000 plus interest in
the installments set forth in the "Stock and Asset Purchase and
Sale Agreement."
Further, the common pleas court's June 14, 1994 order
referred to in the writ was entered only after deletion by the
court of language in a proposed entry tendered by appellants
which referred to the $2,200,000 and interest to be paid in
installments as set forth in the agreement. The certificate of
judgment issued by Missig on August 15, 1994 specified that a
judgment had been entered on March 29, 1994 regarding
appellants and Charles L. Jones and Phillip C. Jones pursuant
to the terms of the "Stock and Asset Purchase and Sale
Agreement" incorporated into that entry, and did not contain a
reference to money or installment payments. Under these
circumstances, where both the court of appeals and common pleas
court possessed the opportunity but refused to order Missig to
issue a certificate of judgment in the form specified by
appellants, the court of appeals did not abuse its broad
discretion in effectively determining that the August 15, 1994
certificate of judgment issued by Missig complied with its writ
of mandamus.
Appellants assert that Missig's August 15, 1994
certificate of judgment did not comply with the court of
appeals' writ because it lacked the requirements of a
statutorily valid certificate of judgment. R.C. 2329.02
provides:
"Any judgment *** rendered by any court of general
jurisdiction *** within this state shall be a lien upon the
lands and tenements of each judgment debtor within any county
of this state from the time there is filed in the office of the
clerk of the court of common pleas of such county a certificate
of such judgment, setting forth the court in which same was
rendered, the title and number of the action, the names of the
judgment creditors and judgment debtors, the amount of the

judgment and costs, the rate of interest, if the judgment
provides for interest, and the date from which such interest
accrues, and the date of rendition of the judgment, and the
volume and page of the journal entry thereof."
During a hearing before the court of appeals on
appellants' mandamus action, the following exchange occurred
between one of the judges and one of appellants' attorneys:
"JUDGE GLASSER: And what if we were to look at this and
say, 'Wait a minute, there's no way that the Clerk is in a
position here to comply with the statutory provisions for the
Certificate of Judgment'?
"MR. ELLIS: Well, that isn't the issue before the Court,
Your Honor."
Under the invited-error doctrine, a party will not be
permitted to take advantage of an error which he himself
invited or induced the trial court to make. State ex rel.
Fowler v. Smith (1994), 68 Ohio St.3d 357, 359, 626 N.E.2d 950,
952. Since appellants advised the court of appeals that
compliance with R.C. 2329.02 was not an issue, they cannot now
claim on appeal that the court of appeals erred in refusing to
compel Missig to file a certificate of judgment that complied
with R.C. 2329.02.
In addition, in Roach v. Roach (1956), 164 Ohio St. 587,
592, 59 O.O. 1, 4, 132 N.E.2d 742, 745, we stated:
"It is a general rule that there must be a specification
in the judgment of the amount to be recovered before execution
can issue thereon. *** In order to have a judgment lien, there
must be a final judgment for the payment of a definite and
certain amount of money which may be collected by execution on
property of the judgment debtor. A judgment for periodic
installments for an indefinite time can not create a lien on
real property, in the absence of a provision in the judgment
itself for a lien. ***" (Citations omitted.) See, also,
Dunbar v. Dunbar (1994), 68 Ohio St.3d 369, 627 N.E.2d 532;
Smith v. Hayward (Dec. 6, 1991), Lake App. No. 90-L-15-182,
unreported.
Although the incorporated agreement between the parties to
the shareholders' derivative suit contained periodic
installment payments for a definite rather than an "indefinite
time," the payments were not certain because the agreement was
conditioned upon a sale of stock and assets and was further
"subject to the performance of certain additional provisions."
Therefore, the agreement incorporated in the common pleas
court's March 29, 1994 "Stipulated Dismissal and Judgment
Entry" was not susceptible of a certificate of judgment in the
form requested by appellants which would set forth a specific
"amount of the judgment" under R.C. 2329.02.
Appellants finally claim that the court of appeals'
failure to enforce its own writ of mandamus violated their
constitutional right to a meaningful remedy. See Section 16,
Article I, Ohio Constitution; Sorrell v. Thevenir (1994), 69
Ohio St.3d 415, 426, 633 N.E.2d 504, 513. However, the court
of appeals did not fail to enforce its writ of mandamus, since
Missig complied with the writ.
Accordingly, the court of appeals did not abuse its
discretion in overruling appellants' post-writ motions for a
show cause order and to enforce the writ. The judgments of the

court of appeals are affirmed.
Judgments affirmed.
Moyer, C.J., Douglas, Wright, F.E. Sweeney, Pfeifer and
Cook, JJ., concur.
Resnick, J., not participating.