Court of Appeals of Ohio, Fifth District, Richland
TECHNICAL CONSTRUCTION SPECIALTIES, INC., dba MASTERFLOORS Relator
JAMES DEWEESE, JUDGE, RICHLAND COUNTY COMMON PLEAS COURT Respondent
Prohibition and Mandamus
W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Earle E.
Wise, Jr., J. JUDGES
Relator, Technical Construction Specialties, Inc. dba
Masterfloors, has filed a Complaint for Writ of Prohibition
and Mandamus requesting the trial court be prohibited from
holding a trial and requiring the trial court to vacate its
order denying summary judgment. Respondent has filed a
"Response to Complaint" arguing the writs should
The question presented in the complaint is whether the trial
court lacked jurisdiction to vacate or reconsider an order
granting summary judgment and set the underlying case for
Summary judgment was granted below in favor of Relator by
Judge Henson. Thereafter, the parties appealed the trial
court's ruling to this Court. We held the order being
appealed was not a final, appealable order. Relator
interprets our holding in the appellate case as one which
remanded the case the trial court for the sole purpose of
having the trial court resolve the issue of attorney fees.
In our opinion we held, "In the case sub judice, there
is no final, appealable order. As noted by the parties and
the trial court, there are claims that remain pending between
various parties. The trial court's October 9, 2013 Order,
which resolves the claims between appellants and appellee,
does not contain Civ.R. 54(B) language which is required when
fewer than all the claims or the rights of fewer than all the
parties have been adjudicated. Nor does the trial court's
November 4, 2013 Order contain such language. In short, there
is no Order which both resolves all of the claims of the
parties to these appeals and contains Civ.R. 54(B)
language." TCS, Inc. v. Bogner Constr., 5th
Dist. Richland No. 13CA101, 2014-Ohio-1982, ¶ 35.
At some point, Judge Henson, the judge who granted summary
judgment in favor of Relator, retired. Approximately two
years after our opinion finding there was no final,
appealable order, Respondent, the judge now assigned to the
case, set the matter for a pretrial. Eventually Judge DeWeese
reconsidered and vacated Judge Henson's order granting
summary judgment in favor of Relator and set the case for
trial. Relator in turn filed the instant complaint.
"To be entitled to a writ of prohibition, [a relator or
petitioner] must establish that (1) the respondent is about
to exercise judicial or quasi-judicial power, (2) the
exercise of that power is unauthorized by law, and (3)
denying the writ would result in injury for which no other
adequate remedy exists in the ordinary course of law.
State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114,
2012-Ohio-54, 961 N.E.2d 181, ¶ 18. The last two
elements can be met by a showing that the trial court
"patently and unambiguously" lacked jurisdiction.
Chesapeake Exploration, LLC. v. Oil & Gas Comm.,
135 Ohio St.3d 204, 2013-Ohio-224, 985 N.E.2d 480, ¶
11." State ex rel. Smith v. Hall, 145 Ohio
St.3d 473, 2016-Ohio-1052, 50 N.E.3d 524, ¶ 7.
"'[Prohibition will [not] issue if the party seeking
extraordinary relief has an adequate remedy in the ordinary
course of law.'" State ex rel. Caskey v.
Gano, 135 Ohio St.3d 175, 2013-Ohio-71, 985 N.E.2d 453,
¶ 2, quoting Dzina v. Celebrezze, 108 Ohio
St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶ 12.
"For a writ of mandamus to issue, the relator must
establish a clear legal right to the relief prayed for; the
respondent must have a clear legal duty to perform the act;
and the relator must have no plain and adequate remedy in the
ordinary course of the law." State ex rel. Widmer ...