State ex rel. L.M. v. Goldberg ( 2023 )

[Cite as State ex rel. L.M. v. Goldberg, 2023-Ohio-537.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE EX REL., L.M., :
Relator, :
No. 112412
v. :
THE HONORABLE JUDGE :
FRANCINE B. GOLDBERG,
:
Respondent.
JOURNAL ENTRY AND OPINION
JUDGMENT: WRIT DENIED
DATED: February 17, 2023
Writ of Mandamus
Order No. 562118
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole A.
Cruz, and Kelley R. Tauring, for relator.
LISA B. FORBES, P.J.:
L.M., the relator, has filed a complaint for a writ of mandamus. L.M.
seeks a peremptory writ of mandamus, or an alternative writ of mandamus, that
requires Judge Francine B. Goldberg to continue a trial scheduled to commence
February 15, 2023. Following a complete review of the complaint and the attached
documents, we deny the requested writ.
I. Facts
The following facts are gleaned from L.M.’s complaint for a writ of
mandamus. On October 27, 2021, L.M. filed her complaint for divorce, through
counsel, in Cuyahoga C.P. No. DR-21-387547. On December 29, 2022, L.M.’s
counsel filed a motion to withdraw as counsel. On December 30, 2022, Judge
Goldberg granted counsel’s motion to withdraw as counsel for L.M. On January 27,
2023, L.M. filed a pro se motion to continue trial set for February 15, 2023, and
February 16, 2023. On February 8, 2023, Judge Goldberg denied L.M.’s motion to
continue trial set for February 15 and 16. On February 8, 2023, L.M.’s newly
obtained counsel filed a notice of appearance and a motion for continuance of the
trial set for February 15 and 16. On February 9, 2023, Judge Goldberg denied the
motion for continuance filed by L.M.’s second counsel. L.M. electronically filed her
complaint for a peremptory writ of mandamus or alternative writ of mandamus on
February 14, 2023, at 10:40 p.m., the day before the trial was scheduled to begin.
L.M. alleges that she had a clear legal right to have her request for a continuance
granted and that by denying the motion for continuance, Judge Goldberg failed to
fulfill a clear legal duty.
II. Law and Analysis
A. Standards Applicable to Mandamus
The requisites for mandamus are well established: (1) the relator
possesses a clear legal right to the requested relief; (2) the respondent possesses a
clear legal duty to perform the requested relief; and (3) there exists no other
adequate remedy in the ordinary course of the law. In addition, mandamus may not
control judicial discretion, even if the exercise of judicial discretion is grossly
abused. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 676 N.E. 108 (1997); State
ex rel. Board Walk Shopping Ctr., Inc. v. Court of Appeals, 56 Ohio St.3d 33, 564
N.E.2d 86 (1990); State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914(1987). Moreover, mandamus is an extraordinary remedy, which is to be exercised
with caution and only when the right is clear. It should not issue in doubtful cases.
State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel.
Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953); State ex rel.
Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (1993).
B. Legal Analysis
Herein, we find that L.M. has failed to establish each prong of the
three-part test applicable to a complaint for a writ of mandamus. Initially, L.M. has
failed to establish that she possesses a clear legal right to a continuance of the dates
set for trial or that Judge Goldberg possesses a clear legal duty to grant a
continuance. Pursuant to Sup.R. 41(A), the continuance of a scheduled trial or
hearing is a matter within the sound discretion of the trial court for good cause
shown. To require Judge Goldberg to grant a continuance at this juncture of legal
proceedings would trample on her judicial discretion, and as previously stated,
mandamus may not be employed to control judicial discretion, even if the exercise
of judicial discretion constitutes gross abuse. State ex rel. Richfield v. Laria, 138
Ohio St.3d 168, 2014-Ohio-243, 4 N.E.3d 1040; State ex rel. Dreamer v. Mason, 115
Ohio St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510; Patterson v. Cuyahoga Cty.
Common Pleas Court, 8th Dist. Cuyahoga No. 107755, 2019-Ohio-110.
Finally, the fact that a postjudgment appeal may be time consuming
and expensive to pursue does not render an appeal inadequate so as to justify
extraordinary relief through mandamus. State ex rel. Banc One Corp. v. Walker, 86
Ohio St.3d 169, 712 N.E.2d 742 (1999); Fraiberg v. Cuyahoga Cty. Court of
Common Pleas, 76 Ohio St.3d 374, 667 N.E.2d 1189 (1996); State ex rel. Gillivan v.
Bd. of Tax Appeals, 70 Ohio St.3d 196, 200, 638 N.E.2d 74 (1994). See also
Stalnaker v. Stalnaker, 9th Dist. Summit No. 29838, 2023-Ohio-61 (following trial,
an appeal may be filed that challenges the failure of the trial court to grant a
continuance based upon an abuse-of-discretion argument).
Accordingly, we deny the request for a peremptory writ of mandamus
or an alternative writ of mandamus. Costs to L.M. The court directs the clerk of
courts to serve all parties with notice of this judgment and the date of entry upon the
journal as required by Civ.R. 58(B).
Writ denied.
_______________________________
LISA B. FORBES, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
MICHAEL JOHN RYAN, J., CONCUR