It is a well-recognised principle of appellate law that merely filing a notice of appeal does not completely divest the trial court of jurisdiction and will not stay the enforcement of an order appealed. Instead, the trial court "retains all jurisdiction [that] does not conflict with the jurisdiction of the appellate court," including jurisdiction that "would aid in the execution of the appealled judgment." Without a stay of execution or enforcement of that order pending appeal, the judgment creditor. in the case of a money judgment, can execute on the judgment and any pending appeal will become moot. The same is true where the judgment is one for the injunctive relief because "equity cannot enjoin that which has been accomplished." Seeking a stay following final judgment is ordinarily not an issue when the judgment rendered is one that resolves all claims against all parties. The appealing party merely moves for a stay in the trial court under Civ.R. 62(B)6 and, if denied, can seek a stay in the appellate court under App.R. 7(A).7 If the order involves one where a supersedeas bond is required,8 the stay becomes effective when the bond is approved by the court.
But what if your appeal involves a provisional remedy as defi ned by R.C. 2505.02(A)(3)10 that is rendered fi nal and appealable under R.C. 2505.02(B)(4),11 or is otherwise rendered fi nal by statute such as an order granting or denying a motion to stay proceedings pending arbitration?12 Rule 62(B) should still apply because these types of orders are “judgments” that can be enforced within the meaning of this rule even though they may not be money judgments or judgments for injunctive relief. To the extent, however, that the trial court retains jurisdiction not inconsistent with the reviewing court’s jurisdiction “to reverse, modify, or affi rm the judgment,”13 the trial court is free to continue proceedings in its court that do not interfere with the appellate court’s jurisdiction.
We have successfully relied on this principle to ask a trial court to reconsider its decision to stay proceedings in a multiple party/multiple claim case where our motion for summary judgment was pending when the plaintiff fi led an appeal on an unrelated issue. And in other cases— especially involving appeals of orders denying a stay of proceedings to compel arbitration—we have relied on the trial court’s limited retained jurisdiction to argue that a stay of discovery is appropriate while an appeal of the order denying arbitration is pending precisely because proceeding with discovery interferes with the appellate court’s jurisdiction to reverse, modify, or affi rm the order denying a stay to compel arbitration.
This is not to say that the trial court has always granted our motions to stay. Indeed, there are some trial judges that have routinely denied motions to stay proceedings while an appeal of an order denying a motion to compel arbitration, or any other interlocutory appealable order,14 is pending. But in those instances, the stay is then sought in the appellate court because we have satisfi ed App.R. 7(A)’s requirement that the trial court, by journal entry, has denied the stay.15 To date, requests made in the appellate court after the trial court has denied a stay have consistently been successful.
As a matter of practice then, don’t forget to seek a stay of discovery or other trial court proceedings when you appeal an order that is fi nal and appealable but otherwise is made before fi nal judgment on all claims against all parties. Because these types of orders ordinarily do not include a monetary judgment, you should be able to successfully argue, as we have, that no bond or other security is necessary. And Civ.R. 54(B) no-just-reason-fordelay certifi cation is not necessary for either orders entered under R.C. 2711.0216 or for provisional remedies,17 so don’t be swayed by your opponent’s argument that 54(B) certifi cation is necessary. It is not. On the fl ip side, if you fi nd your case stayed by the trial court because of another party’s interlocutory appeal on an unrelated issue, ask the trial court to reconsider its decision to stay if you have a dispositive motion pending that has the potential to get you out of the case. It’s better than waiting months for an appeal to be resolved when that appeal doesn’t involve your client. Either way, Civ.R. 62(B) and App.R. 7(A) are powerful tools and should be used for your client’s maximum benefit.