[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Technical Constr. Specialties, Inc. v. DeWeese, Slip Opinion No. 2018-Ohio-5082.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2018-OHIO-5082
  [THE STATE EX REL.] TECHNICAL CONSTRUCTION SPECIALTIES, INC. D.B.A.
          MASTERFLOORS, APPELLANT, v. DEWEESE, JUDGE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as State ex rel. Technical Constr. Specialties, Inc. v. DeWeese,
                          Slip Opinion No. 2018-Ohio-5082.]
Mandamus—Prohibition—Writs denied—Trial court judge authorized in exercise
        of jurisdiction—No final, appealable order and no clear legal right to
        relief—Court of appeals’ judgment affirmed.
    (No. 2018-0324—Submitted July 17, 2018—Decided December 19, 2018.)
               APPEAL from the Court of Appeals for Richland County,
                              No. 17 CA 69, 2018-Ohio-213.
                                     _______________
        Per Curiam.
        {¶ 1} Appellant,       Technical      Construction       Specialties,    Inc.,    d.b.a.
Masterfloors (“TCS”), appeals the judgment of the Fifth District Court of Appeals
denying TCS’s complaint for writs of mandamus and prohibition against appellee,
                            SUPREME COURT OF OHIO




Richland County Court of Common Pleas Judge James DeWeese. We affirm the
judgment of the court of appeals.
                                    Background
       {¶ 2} The following facts are undisputed.
                          The breach-of-contract action
       {¶ 3} In November 2008, TCS filed a complaint in Richland County
Common Pleas Court for breach of contract and other claims against Bogner
Construction Company (“Bogner”), Sauereisen, Inc., Ohio Farmers Insurance
Company, and the Richland County Board of Commissioners (“the board”) in
connection with a construction project for the Richland County Jail. On November
29, 2011, Judge James Henson granted summary judgment in favor of TCS as to
its claims against Bogner and the board. The board appealed, but the Fifth District
dismissed the appeal for lack of a final, appealable order because claims against
other parties and various motions remained pending in the trial court. TCS, Inc. v.
Bogner Constr. Co., 5th Dist. Richland No. 11CA126 (Apr. 13, 2012) (“TCS I”).
       {¶ 4} On January 15, 2013, the trial court entered an order reaffirming its
November 29, 2011 decision. In the same order, the court denied the board’s
requests for summary judgment and denied Bogner’s counterclaims against TCS.
The court also noted that a number of claims and counterclaims involving other
defendants remained pending. Bogner and the board separately appealed, but the
court of appeals again dismissed for lack of a final, appealable order. TCS, Inc. v.
Bogner Constr. Co., 5th Dist. Richland Nos. 13CA14 and 13CA23 (July 18, 2013)
(“TCS II”).
       {¶ 5} In orders entered on October 9 and November 4, 2013, the trial court
awarded TCS attorney fees. The board and Bogner separately appealed the trial
court’s orders dated November 29, 2011, January 15, 2013, October 9, 2013, and
November 4, 2013. The appellate court consolidated the appeals.




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                                January Term, 2018




          {¶ 6} On May 6, 2014—for the third time—the Fifth District dismissed the
consolidated appeals for lack of a final, appealable order. The court of appeals
explained that not one of the four trial-court orders “both resolves all of the claims
of the parties to these appeals and contains Civ.R. 54(B) language.” Therefore, the
appellate court held that it lacked jurisdiction to entertain the appeals. TCS, Inc. v.
Bogner Constr. Co., 5th Dist. Richland Nos. 13CA96 and 13CA101, 2014-Ohio-
1982, ¶ 35-36 (“TCS III”).
          {¶ 7} While those appeals were pending, Judge Henson retired in December
2013. After dismissal by the appellate court, the case remained pending at the trial
court for nearly two years before it was reassigned to Judge DeWeese. On October
7, 2016, Judge DeWeese granted Bogner leave to file a motion for reconsideration.
The board and Bogner each subsequently sought relief, under Civ.R. 60(B)(5), from
the trial court’s November 2011 and January 2013 orders granting summary
judgment to TCS.
          {¶ 8} On December 6, 2016, Judge DeWeese “vacated until further
resolution” the November 2011 and January 2013 summary-judgment orders.
Noting that the court of appeals had determined that no final, appealable order
existed in the case, Judge DeWeese declined to grant relief under Civ.R. 60(B),
which applies only to final judgments. Instead, Judge DeWeese based his decision
on Civ.R. 54(B), which allows for revision of certain nonfinal, nonappealable
orders.
          {¶ 9} Judge DeWeese subsequently denied several motions filed by TCS,
including a request that the court add a Civ.R. 54(B) determination to make the
October 9 and November 4, 2013 attorney-fee awards final and appealable. On
June 5, 2017, Judge DeWeese granted the board’s motion for summary judgment.
But the case remains pending because TCS’s claims against Bogner, Sauereisen,
and Ohio Farmers Insurance are unresolved, as are Bogner’s and Sauereisen’s
counterclaims against TCS.




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                              SUPREME COURT OF OHIO




                       The mandamus-and-prohibition action
         {¶ 10} On August 18, 2017, TCS filed a complaint for writs of mandamus
and prohibition in the Fifth District Court of Appeals, seeking to compel Judge
DeWeese to enter a final, appealable order on Judge Henson’s prior rulings, vacate
several orders Judge DeWeese had entered in the underlying case, including the
December 6, 2016 order that overturned Judge Henson’s November 2011
summary-judgment ruling, and bar Judge DeWeese from moving forward with a
trial.
         {¶ 11} On January 19, 2018, the court of appeals denied the writs, holding
that because none of Judge Henson’s orders were final and appealable, they were
subject to modification under Civ.R. 54(B). Technical Constr. Specialties, Inc. v.
DeWeese, 5th Dist. Richland No. 17CA69, 2018-Ohio-213, ¶ 12 (“TCS IV”). TCS
has appealed and requests oral argument. On May 18, 2018, Judge DeWeese
vacated the trial date pending this court’s disposition of this appeal.
                                    Legal Analysis
         {¶ 12} To be entitled to a writ of mandamus, TCS must establish (1) a clear
legal right to the requested relief, (2) a corresponding legal duty on the part of Judge
DeWeese to provide it, and (3) the lack of an adequate remedy in the ordinary
course of the law. State ex rel. Marsh v. Tibbals, 149 Ohio St.3d 656, 2017-Ohio-
829, 77 N.E.3d 909, ¶ 24. To be entitled to the requested writ of prohibition, TCS
must establish that (1) Judge DeWeese has exercised or is about to exercise 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 the law. State ex rel. Elder v. Camplese, 144 Ohio St.3d 89,
2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13.
         {¶ 13} Judge DeWeese clearly exercised jurisdiction in the underlying case,
thus satisfying the first criterion for the writ of prohibition. The next question, then,
is whether that exercise of jurisdiction was authorized.




                                           4
                                January Term, 2018




       {¶ 14} We affirm the court of appeals’ judgment because, as the court of
appeals correctly held, Judge DeWeese was authorized to modify the December 6,
2016 order. In its sole proposition of law, TCS contends that Judge Henson’s
January 2013 summary-judgment order was final and appealable and that Judge
DeWeese therefore patently and unambiguously lacked jurisdiction to revise it. As
TCS observes, the January 2013 order contains the “no just cause for delay”
language required by Civ.R. 54(B). Yet that order was twice reviewed on appeal
and twice found to be a nonfinal, nonappealable order. TCS II, 5th Dist. Richland
Nos. 13CA14 and 13CA23; TCS III, 5th Dist. Richland Nos. 13CA96 and
13CA101, 2014-Ohio-1982, at ¶ 1, 35. The court of appeals explained that not one
of the four trial-court orders both resolved the claims of all parties and contained
the requisite Civ.R. 54(B) language and that the appellate court therefore lacked
jurisdiction to entertain the appeals. Accordingly, Judge DeWeese had jurisdiction
over the case and was authorized to revise the previous orders granting summary
judgment to TCS under Civ.R. 54(B).
       {¶ 15} Likewise, TCS cannot show that it has a clear legal right to relief,
and it is therefore not entitled to a writ of mandamus. In support of its argument,
TCS urges this court to interpret the court of appeals’ 2014 decision in TCS III as
holding that the trial court, on remand, must make the previous orders final and
appealable by satisfying the Civ.R. 54(B) requirement with express language
indicating that there is no just reason for delay. But contrary to TCS’s argument,
the Fifth District’s opinion in TCS III did not expressly command the trial court, on
remand, to take any specific action and certainly did not direct the trial court to
amend any of the prior orders to include a determination under Civ.R. 54(B) that
there is no just reason for delay. Instead, the court of appeals held that no final,
appealable order existed and thus, it had no jurisdiction over the appeals. TCS III
at ¶ 35-37.




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                             SUPREME COURT OF OHIO




       {¶ 16} Finally, TCS contends that Judge DeWeese lacked jurisdiction to
consider Bogner’s and the board’s motions for reconsideration, which TCS alleges
were filed in excess of three years after Judge Henson’s January 2013 summary-
judgment order. “Laches occurs when unreasonable and inexcusable delay in
asserting a known right causes material prejudice.” State ex rel. Carver v. Hull, 70
Ohio St.3d 570, 577, 639 N.E.2d 1175 (1994). Whether laches will bar a claim is
well within the court’s discretion. Id.
       {¶ 17} Regardless of the merit of TCS’s laches argument, writs of
mandamus and prohibition “will not issue to control * * * judicial discretion, even
if that discretion is abused.” Berthelot v. Dezso, 86 Ohio St.3d 257, 259, 714
N.E.2d 888 (1999). Whether laches barred the board and Bogner from seeking
reconsideration of the January 2013 summary-judgment order and whether Judge
DeWeese abused his discretion when he ruled on those motions are issues that
should be addressed in a direct appeal following the trial-court proceedings.
       {¶ 18} Oral argument is not required in this appeal but can be granted at our
discretion. See S.Ct.Prac.R. 17. Because this appeal does not involve issues of
great public importance, substantial constitutional issues, complex issues of law or
fact, or a conflict among courts of appeals, we deny TCS’s motion for oral
argument. See State ex rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d
118, 2006-Ohio-5339, 855 N.E.2d 444, ¶ 15.
       {¶ 19} Accordingly, we affirm the judgment of the court of appeals denying
TCS’s complaint for writs of mandamus and prohibition.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE,
and DEGENARO, JJ., concur.
                               _________________
       Daniel M. Walpole, for appellant.




                                          6
                               January Term, 2018




       Gary Bishop, Richland County Prosecuting Attorney, and Andrew S.
Keller, Assistant Prosecuting Attorney, for appellee.
                               _________________




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