[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Huntington Natl. Bank v. Kontos, Slip Opinion No. 2015-Ohio-5190.]




                                           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. 2015-OHIO-5190
 THE STATE EX REL. HUNTINGTON NATIONAL BANK, APPELLANT, v. KONTOS,
                                JUDGE, APPELLEE, ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
          may be cited as State ex rel. Huntington Natl. Bank v. Kontos,
                          Slip Opinion No. 2015-Ohio-5190.]
Prohibition—Procedendo—Appeal is adequate remedy in the ordinary course of
        the law—Judge’s jurisdiction to order evidentiary hearing was not patently
        and unambiguously lacking—Court of appeals’ dismissal of complaint for
        writs of prohibition and procedendo affirmed.
    (No. 2014-0656—Submitted July 7, 2015—Decided December 15, 2015.)
    APPEAL from the Court of Appeals for Trumbull County, No. 2013-T-0089,
                                      2014-Ohio-1374.
                                 _____________________
        Per Curiam.
        {¶ 1} We affirm the Eleventh District Court of Appeals’ dismissal of a
complaint for writs of prohibition and procedendo by relator-appellant, Huntington
                             SUPREME COURT OF OHIO




National Bank, against respondent-appellee, Trumbull County Common Pleas
Court Judge Peter J. Kontos. Huntington argues that a remand order from the court
of appeals precludes Judge Kontos from assigning the underlying breach-of-
contract case to a magistrate for an evidentiary hearing and from using evidence
adduced at that hearing to determine damages.
       {¶ 2} Because Huntington has an adequate remedy at law by way of appeal
and because Judge Kontos’s jurisdiction to order the evidentiary hearing and to
determine damages based on new evidence is not patently and unambiguously
lacking, the court of appeals was correct to dismiss the case, and we affirm.
                                        Facts
       {¶ 3} In 2006, W. Thomas James and others filed a complaint for breach of
contract against Sky Bank—predecessor in interest to the current relator-appellant,
Huntington—as well as claims against other parties. James’s claim against the bank
arose out of a construction loan for a funeral home that James was having built.
James alleged that the bank had breached the terms governing the disbursement of
funds to the general contractor, causing the contractor to quit before the building
was completed. On October 1, 2010, Judge Kontos issued a judgment against the
bank for breach of contract and awarded damages.
       {¶ 4} The bank filed a timely appeal, and the court of appeals reversed the
judgment of the trial court on the issue of the proper standard for calculating
damages and remanded for a recalculation. James v. Sky Bank, 11th Dist. Trumbull
No. 2010-T-0116, 2012-Ohio-3883. Specifically, the court of appeals held that
James, in his breach-of-contract action, was required to present evidence sufficient
to prove that the breach proximately resulted in damages that can be determined to
a reasonable certainty. Id. at ¶ 31-33, 47-55. The court further held that “additional
expenditures after the contractor stopped work are not the proper measure of
damages caused by the bank’s improper disbursement of funds.” Id. at ¶ 52.
Rather, the court of appeals stated, “[T]he proper measure of damages under the




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circumstances of this case would be the difference between the funds the bank
improperly released to the contractor ($635,000) for the work the contractor
claimed it had performed, and the actual value of that work (in materials and
labor).”1 Id. at ¶ 53.
         {¶ 5} In its order remanding the case, the court of appeals instructed Judge
Kontos to apply the standard it had articulated for calculating damages to the record
and to determine if the evidence justified any damages. Specifically, the court
stated: “It is unclear whether the difference between the funds released to [the
contractor] and the actual value of the work completed by [the contractor] could be
ascertained from the evidence presented.” Id. at ¶ 54. “On remand, the trial court
is to recalculate damages applying the proper measurement set forth in this opinion
based on the evidence contained on [sic] the record.” Id. at ¶ 61.
         {¶ 6} On remand, after briefing and a hearing, Judge Kontos issued a
judgment entry stating, “Having now reviewed the record of the trial proceedings,
the Court finds that it is unable to arrive at a proper measure of damages as
enunciated by the Court of Appeals without additional testimony.” Judge Kontos
ordered that a new evidentiary hearing on damages would be held before his
magistrate.
         {¶ 7} Huntington filed this action in procedendo and prohibition in the court
of appeals at the same time that it filed a notice of appeal of the trial court’s order
that a new evidentiary hearing be held.                   The court of appeals dismissed
Huntington’s appeal because the trial court’s judgment entry ordering a new
hearing was not a final appealable order. James v. Sky Bank, 11th Dist. Trumbull
No. 2013-T-0087, 2014-Ohio-1159.




1
 The court of appeals’ holding on the merits is not at issue here, and the court need take no position
on it.




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       {¶ 8} In response to the procedendo and prohibition petition, Judge Kontos
filed a motion to dismiss under Civ.R. 12(B), which the court of appeals granted,
finding that Huntington has an adequate remedy by way of appeal and that the trial
court did not exceed its jurisdiction by ordering an evidentiary hearing.
       {¶ 9} Huntington filed a timely appeal to this court.
                                     Analysis
Motion for oral argument
       {¶ 10} Huntington has moved for oral argument. Oral argument in a direct
appeal is discretionary. S.Ct.Prac.R. 17.02(A). In exercising this discretion, we
consider whether the case involves a matter of great public importance, complex
issues of law or fact, a substantial constitutional issue, or a conflict among the
courts of appeals. State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-
4563, 31 N.E.3d 608, ¶ 16, citing Appenzeller v. Miller, 136 Ohio St.3d 378, 2013-
Ohio-3719, 996 N.E.2d 919, ¶ 4, and cases cited therein.
       {¶ 11} None of these factors is mentioned in the request for oral argument,
and the case involves a straightforward application of the standards for writs of
prohibition and procedendo. The motion for oral argument is denied.
Original action
       {¶ 12} Huntington argues that because Judge Kontos has determined that
no evidence exists in the current record sufficient to award damages to James, under
the court of appeals’ remand order, Judge Kontos has no choice but to issue
judgment for Huntington and must be prohibited from conducting an evidentiary
hearing on damages. Huntington therefore requested that the court of appeals issue
a writ of procedendo ordering Judge Kontos to issue judgment in its favor and a
writ of prohibition preventing him from conducting the hearing. Because the court
of appeals correctly granted Judge Kontos’s motion to dismiss, we affirm.




                                         4
                                 January Term, 2015




         Procedendo
         {¶ 13} To be entitled to a writ of procedendo, Huntington must show a clear
legal right to require the trial court to proceed, a clear legal duty on the part of the
trial court to proceed, and the lack of an adequate remedy in the ordinary course of
the law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio
St.3d 461, 462, 650 N.E.2d 899 (1995). A writ of procedendo is proper when a
court has refused to enter judgment or has unnecessarily delayed in proceeding to
judgment. State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d
180, 184, 652 N.E.2d 742 (1995).
         {¶ 14} Huntington is not entitled to a writ of procedendo. “An appeal is an
adequate remedy in the ordinary course of law that precludes an action for * * *
procedendo.” State ex rel. Ward v. Reed, 141 Ohio St.3d 50, 2014-Ohio-4512, 21
N.E.3d 303, ¶ 12, citing State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77
Ohio St.3d 247, 250, 673 N.E.2d 1281 (1997), and State ex rel. Sevayega v.
McMonagle, 122 Ohio St.3d 54, 2009-Ohio-2367, 907 N.E.2d 1180, ¶ 1.
Huntington has a remedy in the ordinary course of the law in that it may appeal the
trial court’s ruling on its objection to the additional hearing and evidence once the
trial court has completed the hearing, redetermined damages, and issued a final
order.
         {¶ 15} Therefore, the court of appeals was correct in dismissing
Huntington’s claim for a writ of procedendo, and we affirm.
         Prohibition
         {¶ 16} To be entitled to a writ of prohibition, Huntington must establish that
(1) in ordering the magistrate to conduct an evidentiary hearing, the trial court is
about to or has exercised 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, 23. The last




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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.
        {¶ 17} The court of appeals was correct in finding that Huntington is not
entitled to a writ of prohibition. “ ‘[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. An appeal is considered an adequate remedy that will preclude a writ
of prohibition. “Unless a relator establishes a patent and unambiguous lack of
jurisdiction, extraordinary relief in prohibition * * * will not issue, because the
relator has an adequate remedy by appeal.” Id., citing State ex rel. Skyway Invest.
Corp. v. Ashtabula Cty. Court of Common Pleas, 130 Ohio St.3d 220, 2011-Ohio-
5452, 957 N.E.2d 24, ¶ 10.
        {¶ 18} Huntington has a remedy in the ordinary course of the law in that it
may appeal the trial court’s denial of its objection to the additional hearing and the
taking of additional evidence once the trial court has completed the hearing,
redetermined damages, and issued a final order. Huntington may argue at that time
that the trial court exceeded the authority the court of appeals granted to it on
remand. However, a writ of prohibition may issue even when there is an adequate
remedy at law if the lack of jurisdiction is “patent and unambiguous.” Chesapeake
Exploration at ¶ 11.
        {¶ 19} A court having general subject-matter jurisdiction can determine its
own jurisdiction, and a party contesting that jurisdiction has an adequate remedy
by way of appeal. State ex rel. Shumaker v. Nichols, 137 Ohio St.3d 391, 2013-
Ohio-4732, 999 N.E.2d 630, ¶ 10, citing State ex rel. Plant v. Cosgrove, 119 Ohio
St.3d 264, 2008-Ohio-3838, 893 N.E.2d 485, ¶ 5.




                                           6
                                January Term, 2015




       {¶ 20} Nevertheless, even if the trial court has general jurisdiction over the
matter before it, its decision to exercise jurisdiction in a particular instance can be
contested in a prohibition action when the lack of jurisdiction in that instance is
patent and unambiguous. See State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70,
74, 701 N.E.2d 1002 (1998). Huntington argues that the trial court patently and
unambiguously lacks jurisdiction over this action because in its order remanding
the case, the court of appeals did not authorize the trial court to conduct a new
evidentiary hearing on damages, but ordered only that damages be recalculated
using the evidence already in the record at the time of the appeal.
       {¶ 21} For at least two reasons, Huntington’s argument lacks merit. First,
Huntington interprets the court of appeals’ remand opinion excessively narrowly.
The court of appeals both analyzed the question of the proper measure of damages,
James, 2012-Ohio-3883, at ¶ 52-55, and examined the evidence supporting an
award of damages, id. at ¶ 34-51. The court concluded that while James was
eligible to receive damages for the bank’s breach of the contract, the lower court
had used an incorrect standard for determining damages and that the record
evidence was insufficient to establish the amount of damages. The court remanded
the case “for further proceedings consistent with this opinion.” Id. at ¶ 61.
       {¶ 22} Huntington focuses on one statement in the opinion: “On remand,
the trial court is to recalculate damages applying the proper measurement set forth
in this opinion based on the evidence contained on [sic] the record.” Id. at ¶ 61.
Huntington interprets this statement to mean that the trial court has jurisdiction to
consider only evidence already in the record and that no further evidence may be
taken before the trial court attempts to calculate damages. If the trial court attempts
to take additional evidence, Huntington asserts, it will be exceeding its jurisdiction
under the court of appeals’ remand order and violating the law-of-the-case doctrine.
       {¶ 23} However, in several places, the court of appeals found that the
evidence in the record before it was insufficient to prove damages, even under the




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standard it articulated. Id. at ¶ 30, 47-51, 54. The court stated, “It is unclear
whether the difference between the funds released to [the contractor] and the actual
value of the work completed by [the contractor] could be ascertained from the
evidence presented,” id. at ¶ 54, and added, “while the record reflects competent
and credible evidence to allow the trier of fact to proceed to a consideration of
damages, the record lacks competent, credible evidence proving the damages
awarded by the trial court to a reasonable degree of certainty under any measure of
damages,” (emphasis sic), id. at ¶ 55, and reiterated, “the magistrate’s award of
damages in this case is not supported by competent, credible evidence under any
measure of damages,” id. at ¶ 60. Thus, the opinion is rife with recognition that the
evidentiary record as it stood at the time of the remand was insufficient to determine
the correct amount of damages under the standard that the court of appeals
articulated.
        {¶ 24} If the court of appeals did not intend for the trial court to correct this
deficiency in the evidentiary record, it would not have needed to remand at all; it
could have recited the correct measure of damages, declared the evidence
insufficient to sustain that measure, and dismissed the case. Instead, it remanded
to the trial court for further proceedings. Given the opinion as a whole, the court
of appeals apparently intended the trial court to do whatever was necessary,
including holding an evidentiary hearing, to calculate damages on remand.
        {¶ 25} The trial court did not patently and unambiguously lack jurisdiction
to order its magistrate to conduct an evidentiary hearing on damages given that the
court of appeals’ mandate was, at best, ambiguous on the issue. We therefore affirm
the court of appeals’ dismissal of the claim in prohibition.
                                      Conclusion
        {¶ 26} Because Huntington has an adequate remedy at law by way of appeal
and because Judge Kontos’s jurisdiction to order the evidentiary hearing and to
determine damages based on new evidence is not patently and unambiguously




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lacking, we affirm the court of appeals’ dismissal of Huntington’s complaint for
writs of prohibition and procedendo.
                                                               Judgment affirmed.
          O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and O’NEILL, JJ.,
concur.
          KENNEDY and FRENCH, JJ., dissent without opinion.
                                _________________
          Weston Hurd, L.L.P., and Shawn Maestle, for appellant.
          Dennis Watkins, Trumbull County Prosecuting Attorney, and William J.
Danso, Assistant Prosecuting Attorney, for appellee.
                                _________________




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