[Cite as State ex rel. O'Brien & Assocs., Co. L.P.A. v. Tyack, 2014-Ohio-3048.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Kevin O'Brien & Associates Co., :
L.P.A., Columbus Checkcashers, Inc., and
Checks 2 Cash, Inc.,                          :

                 Relators,                              :

v.                                                      :                         No. 13AP-1099

[The Honorable] Judge David B. Tyack                    :                   (REGULAR CALENDAR)
and Lori M. Tyack, Clerk Franklin
County Municipal Court,                                 :

                 Respondents.                           :




                                          D E C I S I O N

                                       Rendered on July 10, 2014


                 Kevin O'Brien & Assoc. Co., L.P.A., and Kevin O'Brien, for
                 relators.

                 Richard C. Pfeiffer, Jr., City Attorney, and Westley M.
                 Phillips, for respondents.

                                             IN MANDAMUS

BROWN, J.
        {¶ 1} Relators, Kevin O'Brien & Associates Co., L.P.A., Columbus Checkcashers,
Inc., and Checks 2 Cash, Inc., have filed an original action requesting that this court issue
a writ of mandamus against respondents, the Honorable David B. Tyack, a judge of the
Franklin County Municipal Court, and Lori M. Tyack, Clerk of the Franklin County
Municipal Court.
No. 13AP-1099                                                                            2

       {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. On January 24, 2014,
respondents filed a motion for summary judgment pursuant to Civ.R. 56. On February 5,
2014, relators filed a memorandum contra respondents' motion for summary judgment.
The magistrate issued the appended decision, including findings of fact and conclusions
of law, recommending that this court grant respondents' motion for summary judgment.
No objections have been filed to that decision.
       {¶ 3} Based upon an independent review of the evidence and finding no error of
law or other defect on the face of the magistrate's decision, this court adopts the
magistrate's decision as our own, including the findings of fact and conclusions of law. In
accordance with the magistrate's recommendation, respondents' motion for summary
judgment is granted, and relators' request for a writ of mandamus is denied.
                                                  Motion for summary judgment granted;
                                                               writ of mandamus denied.


                           KLATT and DORRIAN, JJ., concur.

                                __________________
[Cite as State ex rel. O'Brien & Assocs., Co. L.P.A. v. Tyack, 2014-Ohio-3048.]




                                               APPENDIX

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Kevin O'Brien & Associates Co., :
L.P.A., Columbus Checkcashers, Inc., and
Checks 2 Cash, Inc.,                          :

                 Relators,                              :

v.                                                      :                         No. 13AP-1099

[The Honorable] Judge David B. Tyack                    :                   (REGULAR CALENDAR)
and Lori M. Tyack, Clerk Franklin
County Municipal Court,                                 :

                 Respondents.                           :




                               MAGISTRATE'S DECISION

                                      Rendered on April 22, 2014


                 Kevin O'Brien & Assoc. Co. L.P.A., and Kevin O'Brien, for
                 relators.

                 Richard C. Pfeiffer, Jr., City Attorney, and Westley M.
                 Phillips, for respondents.


                                         IN MANDAMUS
                         ON RESPONDENTS' MOTION FOR SUMMARY JUDGMENT

        {¶ 4} In this original action, relators Kevin O'Brien and Associates Co. L.P.A.,
Columbus Checkcashers, Inc. and Checks 2 Cash, Inc., request that a writ of mandamus
issue against respondents the Honorable David B. Tyack, a judge of the Franklin County
Municipal Court, and Lori M. Tyack, the Clerk of the Franklin County Municipal Court.
No. 13AP-1099                                                                          4


Findings of Fact:
      {¶ 5} 1. On December 31, 2013, relators filed this mandamus action against
respondents.
      {¶ 6} 2. On January 21, 2014, respondents filed their answer to the complaint.
      {¶ 7} 3. On January 24, 2014, respondents moved for summary judgment.
Respondents also filed a memorandum in support.
      {¶ 8} 4. In support of their motion, respondents submitted the affidavit of
Westley Phillips who is an assistant city attorney employed by the city of Columbus,
Ohio. His affidavit was executed January 23, 2014. Phillips represented respondents in
an earlier original action filed by the instant relators in the Supreme Court of Ohio.
That action involved the same parties as the instant action and was assigned Supreme
Court Case No. 2013-0156.
      {¶ 9} 5. In his affidavit, Phillips states that he has copied court documents from
the Supreme Court's website regarding Case No. 2013-0156. By his affidavit, Phillips
submits the following exhibits from the Supreme Court's online docket:
               Exhibit No. Description
               One          Supreme Court of Ohio Case Information (online-docket)
                            regarding Case No. 2013-0156.
               Two          Complaint For Writ of Mandamus. (Filed January 25, 2013.)
               Three        Respondent Lori M. Tyack's motion to dismiss. (Filed
                            February 7, 2013.)
               Four         Respondent Judge David Tyack's motion to dismiss. (Filed
                            February 13, 2013.)
               Five         Motion for leave to file amended complaint in mandamus
                            instanter. (Filed June 12, 2013.)
               Six          First amended complaint for Writ of Mandamus. (Filed
                            June 12, 2013.)
               Seven        Relators' memorandum contra respondents' motion to
                            dismiss. (Filed June 18, 2013.)
               Eight        An "Entry" signed by Chief Justice Maureen O'Connor. (Filed
                            September 4, 2013.)
No. 13AP-1099                                                                             5


          {¶ 10} 6. In their motions to dismiss filed in the Supreme Court, respondents
argued that the complaint failed to state a claim upon which relief can be granted. Also,
respondents pointed out that the complaint failed to bring the action in the name of the
state on the relation of relators.
          {¶ 11} 7. The first amended complaint that accompanied relators' June 12, 2013
motion for leave to file the same appropriately brings the action in the name of the state
on the relation of relators.
          {¶ 12} 8. In their memorandum contra respondents' motion to dismiss, relators
argue that the first amended complaint is not facially defective and that it does state a
claim upon which relief in mandamus can be granted.
          {¶ 13} 9. The "Entry" signed by the Chief Justice and filed September 4, 2013
states:
                This cause originated in this court on the filing of a
                complaint for a writ of mandamus.

                Upon consideration of relator's [sic] motion for leave to file
                an amended complaint in mandamus and respondents'
                motions to dismiss, it is ordered by the court that the motion
                for leave to file an amended complaint and the motions to
                dismiss are granted. Accordingly, this cause is dismissed.

          {¶ 14} 10. On January 30, 2014, the magistrate here issued a notice of summary
judgment hearing. The notice stated that the motion for summary judgment is set for
submission to the magistrate on February 20, 2014.
          {¶ 15} 11. On February 5, 2014, relators filed their memorandum contra
respondents' motion for summary judgment.
          {¶ 16} 12. On February 6, 2014, respondents filed a reply.
Conclusions of Law:
          {¶ 17} Apparently, relators failed to move for reconsideration of the September 4,
2013 Supreme Court entry that granted the motions to dismiss. Because a motion for
reconsideration under S.Ct.Prac.R. 18.02 provided relators an adequate remedy that
relators failed to pursue, relators cannot maintain the instant mandamus action which
presents essentially the same cause of action dismissed by entry of the Supreme Court.
No. 13AP-1099                                                                             6


       {¶ 18} Accordingly, it is the magistrate's decision that this court deny relators'
request for a writ of mandamus, as more fully explained below.
              S.Ct.Prac.R. 18.02, effective January 1, 2013, provides:
              (A) Time to file

              Except as provided in S.Ct.Prac.R. 12.08(B), any motion for
              reconsideration must be filed within ten days after the
              Supreme Court’s judgment entry or order is filed with the
              Clerk of the Supreme Court.

              (B) Basis for filing

              A motion for reconsideration shall not constitute a
              reargument of the case and may be filed only
              with respect to the following Supreme Court decisions:

              (1) Refusal to accept a jurisdictional appeal;

              (2) The sua sponte dismissal of a case;

              (3) The granting of a motion to dismiss;
              (4) A decision on the merits of a case.

       {¶ 19} It can be noted that S.Ct.Prac.R. 18.02(B)(3) provides that a motion for
reconsideration may be filed when the Supreme Court has granted a motion to dismiss.
The September 4, 2013 "Entry" of the Supreme Court granted respondents' motions to
dismiss, yet relators did not move for reconsideration. Thus, relators failed to exercise an
adequate remedy that bars the instant mandamus action.
       {¶ 20} In their memorandum in support of their motion for summary judgment,
respondents argue that the doctrine of res judicata bars this action.
       {¶ 21} In State ex rel. Davis v. Pub. Emps. Retirement Bd., 120 Ohio St.3d 386,
2008-Ohio-6254, the court had occasion to succinctly set forth the law regarding the
doctrine of res judicata. The Davis court states:
              In Ohio, "[t]he doctrine of res judicata encompasses the two
              related concepts of claim preclusion, also known as res
              judicata or estoppel by judgment, and issue preclusion, also
              known as collateral estoppel." O'Nesti v. DeBartolo Realty
              Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803,
              ¶ 6. "[I]ssue preclusion, [or] collateral estoppel, holds that a
              fact or a point that was actually and directly at issue in a
No. 13AP-1099                                                                     7


              previous action, and was passed upon and determined by a
              court of competent jurisdiction, may not be drawn into
              question in a subsequent action between the same parties or
              their privies, whether the cause of action in the two actions
              be identical or different." Ft. Frye Teachers Assn.,
              OEA/NEA v. State Emp. Relations Bd. (1998), 81 Ohio St.3d
              392, 395, 692 N.E.2d 140. "While the merger and bar aspects
              of res judicata have the effect of precluding the relitigation of
              the same cause of action, the collateral estoppel aspect
              precludes the relitigation, in a second action, of an issue that
              had been actually and necessarily litigated and determined in
              a prior action that was based on a different cause of action."
              Id. Collateral estoppel "applies equally to administrative
              proceedings." State ex rel. Kincaid v. Allen Refractories Co.,
              114 Ohio St.3d 129, 2007-Ohio-3758, 870 N.E.2d 701, ¶ 8.

              "Collateral estoppel applies when the fact or issue (1) was
              actually and directly litigated in the prior action, (2) was
              passed upon and determined by a court of competent
              jurisdiction, and (3) when the party against whom collateral
              estoppel is asserted was a party in privity with a party to the
              prior action." Thompson v. Wing (1994), 70 Ohio St.3d 176,
              183, 637 N.E.2d 917.

Id. at ¶ 27-28.

       {¶ 22} In their memorandum in support of their motion for summary judgment,
respondents argue:
              Res judicata bars Relators' action in the present case. A
              comparison of the complaint filed in this case and the matter
              litigated before the Ohio Supreme Court, a court of
              competent jurisdiction, reveals that the two cases are
              identical. The Ohio Supreme Court has already dismissed
              Relators' request for mandamus. Considering that the
              Supreme Court had granted Relators' motion to amend their
              complaint to correct procedural deficiencies, the only basis
              for the Supreme Court's decision was that Relators failed to
              meet the requisites for mandamus. Relators have filed the
              same complaint in this case and this action is barred by res
              judicata.

(Respondents' motion for summary judgment, 7.)

       {¶ 23} In their memorandum contra the motion for summary judgment, relators
counter:
No. 13AP-1099                                                                      8


              Respondents have not, and can not, establish that the
              previous case filed by Relators is the subject of a final
              judgment on the merits.

              Although the Supreme Court did, in fact, dismiss the
              Relators' earlier mandamus action, it did so on procedural
              grounds, and not on the merits. The caption, or style, of the
              Relator's [sic] complaint in mandamus was, in fact,
              defective--a procedural issue, which was expressly raised by
              the Respondents in their Motion to Dismiss. In the Supreme
              Court's Entry of September 4, 2013, there is no discussion,
              whatsoever, about the merits of the Respondents' Motion to
              Dismiss. The Court simply dismissed the action without
              opinion. Accordingly, Relator's [sic] action is not barred by
              the doctrine of res judicata.

(Emphasis sic.) (Relators' memo contra respondents' motion for summary judgment, 2-
3.)
       {¶ 24} The magistrate does not reach the issue of whether the doctrine of res
judicata bars this action. Clearly, what bars this action is the adequate remedy that
relators failed to exercise—a S.Ct.Prac.R. 18.02 motion for reconsideration.
       {¶ 25} Mandamus will not lie where the relators have a plain and adequate
remedy at law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). The failure
to pursue an adequate administrative remedy bars mandamus. State ex rel. Reeves v.
Indus. Comm., 53 Ohio St.3d 212 (1990). State ex rel. Napier v. Indus. Comm., 52 Ohio
St.3d 82 (1990). State ex rel. Bailey v. Indus. Comm., 62 Ohio St.3d 191 (1991).
       {¶ 26} Accordingly, it is the magistrate's decision that this court grant
respondents' motion for summary judgment.


                                          /S/ MAGISTRATE
                                          KENNETH W. MACKE
No. 13AP-1099                                                                9




                          NOTICE TO THE PARTIES

           Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
           as error on appeal the court's adoption of any factual finding
           or legal conclusion, whether or not specifically designated as
           a finding of fact or conclusion of law under Civ.R.
           53(D)(3)(a)(ii), unless the party timely and specifically
           objects to that factual finding or legal conclusion as required
           by Civ.R. 53(D)(3)(b).
