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Technical Construction Specialties, Inc. v. Deweese

Court of Appeals of Ohio, Fifth District, Richland

January 19, 2018

TECHNICAL CONSTRUCTION SPECIALTIES, INC., dba MASTERFLOORS Relator
v.
JAMES DEWEESE, JUDGE, RICHLAND COUNTY COMMON PLEAS COURT Respondent

         Writ of Prohibition and Mandamus

          Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. JUDGES

          OPINION

          Wise, John, J.

         {¶1} 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 not issue.

         FACTS

         {¶2} 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 trial.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         PROHIBITION AND MANDAMUS

         {¶6} "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.

         {¶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.

         {¶8} "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 ...


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