[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Luoma v. Russo, Slip Opinion No. 2014-Ohio-4532.]




                                        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. 2014-OHIO-4532
     THE STATE EX REL. LUOMA, APPELLANT, v. RUSSO, JUDGE, APPELLEE.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                  it may be cited as State ex rel. Luoma v. Russo,
                         Slip Opinion No. 2014-Ohio-4532.]
Mandamus—Relator seeks writ ordering trial judge to issue final order adopting
        magistrate’s decision—Relator had adequate remedy in appeal from order
        setting forth final judgment in case—Writ denied.
   (No. 2013-1994—Submitted October 7, 2014—Decided October 15, 2014.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 99844,
                                   2013-Ohio-5033.
                               ____________________
        Per Curiam.
        {¶ 1} We affirm the judgment of the Eighth District Court of Appeals.
The court of appeals denied a writ of mandamus requested by relator-appellant,
Jonathan C. Luoma, against respondent-appellee, Judge Nancy Margaret Russo of
the Cuyahoga County Common Pleas Court, stemming from an underlying
partition action. Judge Russo overruled Luoma’s objections to a magistrate’s
                             SUPREME COURT OF OHIO




decision. Luoma filed a motion for a final, appealable order that was denied. On
December 31, 2012, Judge Russo entered a final order directing that the property
be sold. Rather than appealing that final order, Luoma petitioned for a writ of
mandamus directing Judge Russo to issue a final, appealable order regarding the
earlier decision to overrule the magistrate’s decision. The court of appeals denied
a writ.
          {¶ 2} Because Luoma had an alternative remedy in the ordinary course
of the law by way of appeal, the court of appeals was correct, and we affirm.
                                        Facts
          {¶ 3} Luoma filed a complaint against his brothers for partition of a
property they owned as tenants in common. The parties filed a stipulation for a
decree of partition, and the court appointed a commissioner to make the partition.
The commissioner determined that the value of the property was $67,000 and that
it could not be divided without injury to its value.
          {¶ 4} In September 2012, the magistrate assigned to the case issued a
decision ordering that part of the proceeds of the eventual sale was to be used to
reimburse one of the parties for his disproportionate investment in the property.
Luoma filed objections to the magistrate’s decision. On November 14, 2012,
Judge Russo overruled the objections and affirmed the magistrate’s decision. An
entry to that effect was issued the next day.
          {¶ 5} Luoma filed a motion for a final, appealable order on December
11, 2012, asserting his intention to appeal the November 14 order overruling his
objections and adopting the magistrate’s decision.       Judge Russo denied that
motion on December 13, 2012. The case proceeded to final judgment. Judge
Russo notified the parties that they had waived their right to elect to purchase the
property and on December 31, 2012, she issued an opinion ordering a sheriff’s
sale and setting the terms for distribution of the proceeds. The opinion specifically




                                          2
                                January Term, 2014




stated that it was final and set forth the court’s decision on all issues. Luoma
never appealed this order.
       {¶ 6} Rather, Luoma filed an appeal of the December 13 order denying
the motion for a final order. The Eighth District Court of Appeals dismissed the
appeal for lack of a final, appealable order.
       {¶ 7} Luoma then filed this mandamus case in the Eighth District, asking
for a writ ordering Judge Russo to issue a final order on her adoption of the
magistrate’s decision. Judge Russo filed a motion for summary judgment, which
the court of appeals granted. Luoma appealed as of right to this court.
                                      Analysis
       {¶ 8} To prevail in this mandamus case, Luoma must establish a clear
legal right to the requested relief, a clear legal duty on the part of Judge Russo to
provide it, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452,
¶ 6. The availability of an appeal is an adequate remedy sufficient to preclude a
writ. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631
(1967), paragraph three of the syllabus.
       {¶ 9} Luoma argues that the court below violated his due-process rights
because it decided the case on arguments that were not briefed and case law that
was not cited by the parties. This argument is without merit. The court decided
the case on the grounds argued by Judge Russo in her motion for summary
judgment: that Luoma had an adequate remedy at law and therefore was not
entitled to a writ of mandamus. And nothing in Civ.R. 56 or elsewhere prevents a
court from citing cases in support of its decision that were not cited by the parties.
       {¶ 10} Luoma further claims that he wanted to appeal the December 13,
2012 order but could not because of the holding in In re Zinni, 8th Dist. Cuyahoga
No. 89599, 2008-Ohio-581. That case explains that an order in a partition case




                                           3
                              SUPREME COURT OF OHIO




that merely overrules objections to the decision of a magistrate is not final and
appealable unless the court separately sets forth its own judgment.
          {¶ 11} In Luoma’s case, the trial court did issue its own judgment, but it
did so on December 31, 2012. On that day, the court issued an opinion that
determined the rights of the parties, set the amounts to which each was entitled
upon the sale of the property, and ordered the clerk to issue an order of sale to the
sheriff. That order was final and appealable.
          {¶ 12} Therefore, as Luoma had an adequate remedy in the ordinary
course of the law by way of appeal, he cannot satisfy the elements required for a
writ of mandamus. The court of appeals was correct in denying the writ, and we
affirm.
                                                                Judgment affirmed.
          O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                               ____________________
          J. Alex Morton, for appellant.
          Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Nora
E. Graham, Assistant Prosecuting Attorney, for appellee.
                            _________________________




                                           4
