Technical Constr. Specialties, Inc. v. DeWeese , 2018 Ohio 213 ( 2018 )

[Cite as Technical Constr. Specialties, Inc. v. DeWeese, 2018-Ohio-213.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TECHNICAL CONSTRUCTION JUDGES:
SPECIALTIES, INC., dba Hon. W. Scott Gwin, P. J.
MASTERFLOORS Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
Relator
-vs-
Case No. 17 CA 69
JAMES DEWEESE, JUDGE,
RICHLAND COUNTY COMMON
PLEAS COURT
Respondent OPINION
CHARACTER OF PROCEEDING: Writ of Prohibition and Mandamus
JUDGMENT: Denied
DATE OF JUDGMENT ENTRY: January 19, 2018
APPEARANCES:
For Relator For Respondent
DANIEL M. WALPOLE JUDGE JAMES DEWEESE
411 Quaker Square RICHLAND COUNTY COURT of
120 East Mill Street COMMON PLEAS
Akron, Ohio 44308 50 Park Avenue East
Mansfield, Ohio 44902
Richland County, Case No. 17 CA 69 2
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
Richland County, Case No. 17 CA 69 3
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, L.L.C. 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} “‘[P]rohibition 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.
Richland County, Case No. 17 CA 69 4
{¶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 v. Mohney, 11th Dist. Geauga No. 2007-G-2776, 2008-
Ohio-1028, ¶31.
JURISDICTION TO RECONSIDER SUMMARY JUDGMENT
{¶9} Relator does not contend Respondent lacks or lacked jurisdiction over the
underlying case. Rather, Relator’s only contention is that Respondent lacked jurisdiction
to modify the order issued by Judge Henson granting summary judgment.
{¶10} This Court dismissed the appeal in the underlying case because the order
was not yet a final, appealable order.
{¶11} The Supreme Court has explained, “An order which adjudicates one or
more but fewer than all the claims or the rights and liabilities of fewer than all the parties
must meet the requirements of R.C. 2505.02 and Civ.R. 54(B) in order to be final and
appealable. Rule 54(B) makes mandatory the use of the language, “there is no just reason
for delay.” Unless those words appear where multiple claims and/or multiple parties exist,
the order is subject to modification and it cannot be either final or appealable. Jarrett
v. Dayton Osteopathic Hospital, Inc. (1985), 20 Ohio St.3d 77, 20 OBR 407, 486 N.E.2d
99; Whitaker-Merrell Co. v. Geupel Construction Co. (1972), 29 Ohio St.2d 184, 58
O.O.2d 399, 280 N.E.2d 922, syllabus.” Noble v. Colwell, 44 Ohio St.3d 92, 96, 540
N.E.2d 1381, 1385 (1989) (emphasis added).
{¶12} Relator relies on the holding in Ricciardi v. D’Apolito, 7th Dist. Mahoning No.
09MA60, 2010-Ohio-1016, in support of its position that summary judgment cannot be
Richland County, Case No. 17 CA 69 5
vacated as Respondent did. The facts presented in this case are not the same as those
presented in Ricciardi where a writ of prohibition was granted because the trial court
vacated a summary judgment ruling after the ruling became a final, appealable order.
The Ricciardi court held, “the trial court was not permitted to modify or vacate the
judgment except through the filing of an appropriate motion as set forth in the Rules for
Civil Procedure.” The holding in Riccardi hinged on the fact that the order was already a
final order. In the instant case, we have already held the order was not yet a final,
appealable order. Because a final order did not exist, the order granting summary
judgment was subject to modification.
{¶13} Respondent is not about to exercise judicial power that is unauthorized by
law. Therefore, the writ of prohibition will not issue. Further, Relator has failed to
demonstrate he has a clear legal right to have Respondent vacate his order setting the
case for trial. Likewise, the writ of mandamus will not issue.
By: Wise, John, J.
Gwin, P. J., and
Wise, Earle, Jr., J., concur.
JWWd 1201