[Cite as Grissom v. Ohio Dept. Job & Family Servs., 2020-Ohio-1608.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

DEBORAH MARTIN GRISSOM,
ADMINISTRATOR,                                        :

                Plaintiff-Appellant,                  :
                                                                       No. 108513
                v.                                    :

OHIO DEPARTMENT OF JOB AND
FAMILY SERVICES,                                      :

                Defendant-Appellee.                   :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: VACATED
                RELEASED AND JOURNALIZED: April 23, 2020


     Administrative Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CV-17-874398


                                           Appearances:


                Amy C. Baughman, for appellant.

                David Yost, Ohio Attorney General, and Rebecca L.
                Thomas, Assistant Attorney General, for appellee.


SEAN C. GALLAGHER, P.J.:

                  Deborah Martin Grissom, Administrator of the Estate of Persey

Tiggs, appeals the April 2019 dismissal of the case after a final judgment was

rendered and affirmed in the direct appeal. Tiggs v. Ohio Dept. of Job & Family
Servs., 2018-Ohio-3164, 118 N.E.3d 985, ¶ 34 (8th Dist.). This case is rife with

procedural questions that must largely remain unanswered in light of the posture

of the appeal.

                 For an unknown reason, the cause was returned to the trial court’s

active docket following the Tiggs decision, despite the fact that Tiggs affirmed the

final judgment. The order reactivating the case was issued by the administrative

judge for the Cuyahoga County Court of Common Pleas. Neither the parties nor

the trial court provide an explanation in support of that administrative decision.

Loc.R. 15(J) of the Court of Common Pleas of Cuyahoga County, General Division,

only permits the reactivation of a case following an appellate decision that both

reverses a final judgment of the trial court and orders the case to be remanded.

The Tiggs court affirmed the final judgment issued in July 2017. The procedure

used to return the case to the trial court’s active docket appears to be inapplicable

under the circumstances. The confusion in reactivating the case may be arguably

explained by the fact that the Tiggs panel failed to resolve one of the issues in the

appeal based on a jurisdictional impediment.

                 Nevertheless, following the reactivation of the case to the trial

court’s docket, Tiggs passed away.       The administrator of Tiggs’s estate was

substituted as the real party in interest under Civ.R. 25. Compounding the errors

to this point, the Ohio Department of Job and Family Services (the “agency”), over

the administrator’s objection, claimed that Tiggs’s death deprived the trial court of

a case and controversy and sought to have the underlying cause of action
dismissed. In general, an action cannot be “dismissed” following the issuance of a

final order, and especially a final order that was affirmed in the direct appeal — the

trial court lacks jurisdiction at that point in the proceedings. State ex rel. Special

Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d

162 (1978) (generally, a trial court loses jurisdiction to take action in a cause after

an appeal has been taken and decided). Despite the entry purportedly dismissing

the action, the final judgment issued in July 2017 was not vacated.

               We are thus being asked to review a post-dispositive order that

“dismissed” a closed case. It is unclear whether that dismissal provides any relief

for the agency. The final entry issued in July 2017 disposed of all pending issues in

the case by affirming the agency’s decision regarding Tiggs’s benefits but

remanding the matter to the agency with an order to assist Tiggs in resolving his

issues if necessary. It is conceivable, in light of the fact that case was returned to

the trial court’s docket, that the agency is implying that the July 2017 judgment

entry was an interlocutory order under R.C. 2505.02.

               Even if the parties had preserved this issue for review, which we

consider only for the sake of discussion, we would be unable to agree with such a

notion. The July 2017 order was expressly deemed “final” in the journalization of

the judgment. More important, in Tiggs, it was also recognized that the July 2017

order was final. Tiggs at ¶ 31 (considering whether a final order resolving an

administrative appeal could be reviewed beyond questions of law). The agency did

not appeal Tiggs, and this panel has no authority to reconsider the procedural
posture of a decision entered by another panel in this district. App.R. 26(A)(2)(d)

(only a majority of the court may substitute its opinion for that of the panel). Thus,

the only issue in this appeal is whether the trial court erred by conducting further

proceedings after a final judgment was entered and affirmed in the direct appeal.

Our discussion will be accordingly limited.

               Tiggs received Medicaid benefits that covered his long-term

residential care expenses in a nursing facility. Id. at ¶ 2. Sometime in 2015, Tiggs’s

Medicaid benefits were terminated because he had come into possession of a life

insurance policy with a cash value exceeding the monetary limits of the pertinent

assistance program. Id. The nursing facility was designated as Tiggs’s authorized

representative during the administrative proceedings. Id. at ¶ 4. After the agency

ruled against Tiggs, the nursing facility, on behalf of Tiggs, filed an administrative

appeal in the Cuyahoga County Common Pleas Court. See generally id. The trial

court largely affirmed the agency’s decision but modified it by requiring the agency

to assist Tiggs in resolving the life insurance policy issue if the nursing home could

not facilitate a resolution.

               The primary issue in the administrative appeal was the nursing

facility’s standing to prosecute the action on behalf of Tiggs, and the secondary

issue advanced in the direct appeal in Tiggs was whether the trial court properly

modified the administrative decision. Id. The trial court’s decision was affirmed

with respect to standing in Tiggs, but the majority also concluded that it lacked

statutory jurisdiction to consider the merits of the secondary issue — concluding
that there is no appellate jurisdiction to review factual questions underlying the

trial court’s decision.   Id. at ¶ 34.   Having affirmed the final order and not

considering the second, the Tiggs panel issued a special mandate for the trial court

to carry its judgment into execution. Id.

               Following Tiggs, the trial court, in large part at the urging of the

agency, implicitly concluded that it had jurisdiction to conduct further proceedings

in light of the Tiggs decision, and further that the case must be dismissed because

Tiggs’s death eroded the live case and controversy requirement. Although the trial

court agreed with the agency’s position, the final judgment as affirmed in Tiggs has

never been vacated.       Because Tiggs did not remand the case for further

proceedings, the trial court lacked jurisdiction to conduct further proceedings that

led to the dismissal entry.

               It is beyond dispute that in Tiggs, a special mandate to carry the

appellate judgment into execution was issued. That mandate does not invoke the

trial court’s continuing jurisdiction to conduct further proceedings. State v. Lewis,

99 Ohio St.3d 97, 2003-Ohio-2476, 789 N.E.2d 195, ¶ 28. Under R.C. 2505.39,

consistent with App.R. 27, when an appellate court “reverses or affirms a final

order, judgment or decree of a lower court on questions of law,” the court “shall

not issue execution, but shall send a special mandate to the lower court for

execution or further proceedings.” (Emphasis sic.) Lewis; App.R. 27 (court of

appeals may remand to the lower court for specific or general execution or for

further proceedings).     Had Tiggs intended to remand the cause for further
proceedings, that panel would have expressly provided for such an occurrence. See

generally id.

                The agency claims that the trial court possessed jurisdiction to

conduct further proceedings based on an October 9, 2018 journal entry. That

order, entered by the administrative judge, provided: “Captioned case being

remanded to the Court of Common Pleas by order of the court of appeals; this

matter is hereby returned to the docket of Judge Maureen Clancy (358).” The

Tiggs panel did not issue a remand order. The order the agency identified appears

to be a product of Cuyahoga C.P. Loc.R. 15(J), which unambiguously provides that

“[i]f a case disposed by an assigned judge is reversed and remanded by an

appellate Court the case shall be returned to the docket of the assigned judge.”

(Emphasis added.) In light of the fact that the panel decision in Tiggs did not

reverse or remand the cause, the administrative judge lacked authority to return

the case to the trial court’s active docket.       Loc.R. 15 controls, and the

administrative judge lacks authority to reactivate a case after the final judgment

has been affirmed. Mun. Constr. Equip. Operators’ Labor Council v. Cleveland,

8th Dist. Cuyahoga No. 96738, 2011-Ohio-5507, ¶ 32 (administrative judge has

authority to assign cases only as provided in Loc.R. 15 and any order beyond the

scope of that rule is void).

                Tiggs did not remand the case for further proceedings. The trial

court lacked jurisdiction to consider the agency’s argument in support of

dismissing the case after the final judgment had been entered and affirmed. State
v. Teagarden, 5th Dist. Licking No. 14-CA-56, 2015-Ohio-2563; State v. Carsey,

4th Dist. Athens No. 14CA5, 2014-Ohio-3682, ¶ 11 (a trial court lacks jurisdiction

to exceed the scope of an appellate court’s remand, and actions beyond the scope

are void). The order dismissing the case is void and must be vacated.

              We understand the unique predicament that the agency faced in

light of Tiggs’s death having occurred following the final judgment, a judgment

that ordered the agency to take action in the nature of assisting Tiggs to procure

benefits should the nursing home’s effort to those ends fall short. In general,

however, “an action is not abated by the death of a party after the cause has

reached a verdict or final judgment and while the judgment stands, even where the

judgment is based on a cause of action that would not have survived had the party

died before judgment.” Flaum v. Gloucester Lanes, Inc., E.D.Va. No. 4:13cv131,

2015 U.S. Dist. LEXIS 9182, 6-7 (Jan. 26, 2015), fn. 2, quoting Chopra v. Gen.

Elec. Co., 527 F.Supp.2d 230, 239-240 (D.Conn. 2007) (quoting 1 American

Jurisprudence 2d Abatement, Survival and Revival, Section 58 (2005)).

Notwithstanding Tiggs’s death, the final judgment issued in the underlying case

stands. If there were issues with the final judgment, the proper course of action

would have been to properly invoke the trial court’s continuing jurisdiction if the

relevant law permitted. Absent some legal mechanism to invoke the trial court’s

continuing jurisdiction, the trial court was required to carry the Tiggs judgment

into execution according to the express mandate issued therein.         Any issues
pertaining to Tiggs’s death could be adequately addressed at the agency level if

required.

              As it stands for the purposes of the cause before us, the trial court’s

post-dispositive order dismissing the action was in error and is vacated. The final

judgment issued on July 12, 2017, remains final. It is ordered that a special

mandate issue out of this court directing the common pleas court to carry this

judgment into execution under App.R. 27, with the added caveat that we are not

remanding for further proceedings.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



SEAN C. GALLAGHER, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
RAYMOND C. HEADEN, J., CONCUR
