The opinion
O’Donnell, J.,
dissenting.
{¶ 45} I respectfully dissent.
{¶ 46} The majority’s resolution of this case is in conflict with our decision in State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144 , 2006-Ohio-3459 , 852 N.E.2d 145 , where in paragraph one of our syllabus, we stated: “R.C. 2701.10 and Gov.Jud.R. VI require bench trials in referrals of civil actions or submission of issues or questions, pursuant to the statute and the rule, which both specify that cases referred and issues submitted to a retired judge pursuant to these provisions must'be tried and determined by a judge.”
{¶ 47} The jurisdiction of a retired judge emanates from R.C. 2701.10, not from the authority or agreement of the parties to the action. The proper analysis here is to consider the plain language of the statute, as we did in Russo. There, we stated, “R.C. 2701.10(B)(1) provides that the parties and retired judge must expressly agree that the action referred shall be ‘tried, determined, and adjudicated by that retired judge.’ ” Russo at ¶ 38. Additionally, R.C. 2701.10(D) specifies that “[a] retired judge to whom a referral is made under this section shall try all of the issues on the action or proceeding, shall prepare relevant findings of fact and conclusions of law, and shall enter a judgment in the action or proceeding in the same manner as if he were an active judge of the court.” See also Russo at ¶ 38. The plain language of the statute permits courts to transfer cases to retired judges for conduct of bench trials only. Thus, the outcome of this analysis dictates that in this instance, the retired judge proceeded to conduct a jury trial without authority.
{¶ 48} This court has held that “parties may not confer jurisdiction upon a court by mutual consent, where none would otherwise exist * * Beatrice Foods Co. v. Porterfield (1972), 30 Ohio St.2d 50 , 59 O.O.2d 76 , 282 N.E.2d 355 , paragraph two of the syllabus. Therefore, the parties here could not agree to confer jurisdiction upon the retired judge to conduct a jury trial.
{¶ 49} This court recently acknowledged that when a judge disregards what the law clearly commands, the judge acts without authority. State v. Simpkins, 117 Ohio St.3d 420 , 2008-Ohio-1197 , 884 N.E.2d 568 , ¶ 21. We stated: “If a judge imposes a sentence that is unauthorized by law, the sentence is unlawful. ‘If an act is unlawful it is not erroneous or voidable, but it is wholly unauthorized and *185 void.’ (Emphasis sic.)” Id., quoting State ex rel. Kudrick v. Meredith (1922), 24 Ohio N.P. (N.S.) 120, 124, 1922 WL 2015 , *3.
Bashein & Bashein Co., L.P.A., and W. Craig Bashein; Becker & Mishkind Co., L.P.A., and Michael F. Becker; and Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for appellee.
Isaac, Brant, Ledman & Teetor, L.L.P., James M. Roper, J. Stephen Teetor, and Jessica K. Philemond, for appellant MedLink.
Bricker & Eckler, L.L.P., and Anne Marie Sferra, urging reversal for amicus curiae, Ohio Association of Civil Trial Attorneys.
{¶ 50} Here, a retired judge conducted a jury trial in contravention of R.C. 2701.10, which authorizes only bench trials. These actions were unauthorized, unlawful, and therefore void.
{¶ 51} Accordingly, I respectfully dissent. I would reverse the judgment of the court of appeals, vacate the verdict, and remand this case to the trial court for further proceedings. If the parties request a jury trial, then those proceedings should be conducted by a judge elected or appointed in accordance with law.
Lundberg Stratton, J., concurs in the foregoing opinion.