[Cite as State ex rel. Dyer v. Young, 2017-Ohio-7738.]

                                THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel.                                        :
Douglas and Brenda Dyer,
                                                         :
                 Relators,
                                                         :
v.                                                                  No. 16AP-627
                                                         :
Hon. David C. Young                                             (REGULAR CALENDAR)
and                                                      :
Schwan's Home Service, Inc.
and                                                      :
Debra Roberts, n.k.a. Debra Rosencrans,
                                                         :
                 Respondents.
                                                         :



                                            D E C I S I O N

                                   Rendered on September 21, 2017


                 Scott Elliot Smith, L.P.A., and Scott E. Smith; Paul W.
                 Flowers Co., L.P.A., and Paul W. Flowers, for relators.

                 Ron O'Brien, Prosecuting Attorney, and Jason S. Wagner,
                 for respondent Honorable David C. Young.

                 Reminger Co., L.P.A., Michael J. Valentine, and Melvin J.
                 Davis, for respondents Schwan's Home Service, Inc. and
                 Debra Rosencrans Roberts.


                          IN PROHIBITION AND/OR MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.

        {¶ 1} Relators, Douglas and Brenda Dyer, commenced this original action in
prohibition and/or mandamus seeking an order compelling respondent, the Honorable
No. 16AP-627                                                                               2

David C. Young, to vacate his August 5, 2016 order that stayed the garnishment action
pending before him and required the return of certain funds previously garnished from
Schwan's Home Service, Inc.'s, financial accounts pursuant to a July 5, 2016 garnishment
order, contingent on Schwan's posting a supersedes bond. Relators also seek an order
compelling Judge Young to proceed with their garnishment action against Schwan's.
        {¶ 2} In addition to filing this original action, relators appealed the trial court's
August 5, 2016 stay order.       Schwan's also filed a cross-appeal of the trial court's
underlying July 5, 2016 garnishment order.
        {¶ 3} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is attached hereto. The magistrate found that
relators failed to establish the grounds necessary for a writ of prohibition and/or writ of
mandamus. Therefore, the magistrate has recommended that we deny relators' request
for relief.
        {¶ 4} Relators have filed five objections to the magistrate's decision.       These
objections challenge certain legal conclusions expressed in the magistrate's decision. All
of relators' objections are premised on a properly commenced garnishment action. As
more fully discussed below, we overrule relators' objections because this court previously
determined that the garnishment action was not properly commenced.
        {¶ 5} Subsequent to the issuance of the magistrate's decision, this court issued its
decision in the direct appeal of the July 5, 2016 garnishment order and the August 5, 2016
stay order.     This court held that relators' garnishment action was not properly
commenced because the judgment that relators sought to enforce was not final. Because
the garnishment action was not properly commenced, the trial court's July 5, 2016
garnishment order was invalid. Therefore, this court reversed the trial court's July 5,
2016 garnishment order and ordered the trial court to dismiss the garnishment action.
Dyer v. Schwan's Home Serv., Inc., 10th Dist. No. 16AP-574, 2017-Ohio-4139. This court
further found that relators' argument that the trial court erred by granting a stay of the
garnishment order and ordering the return of the garnished funds to Schwan's was moot.
Therefore, this court dismissed relators' appeal. Id.
No. 16AP-627                                                                           3

      {¶ 6} Based on this court's decision in the appeal of the garnishment order, we
overrule relators' objections and deny relators' request for a writ of prohibition and/or
mandamus. We also decline to adopt the magistrate's decision because it is premised on a
properly commenced garnishment action, which this court has since determined was not
properly commenced.
                                                                  Objections overruled;
                                          writ of prohibition and/or mandamus denied.

                             SADLER and DORRIAN, JJ., concur.
No. 16AP-627                                                                            4

                                      APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

The State ex rel.                           :
Douglas and Brenda Dyer,
                                            :
             Relators,
                                            :
v.                                                               No. 16AP-627
                                            :
Hon. David C. Young                                         (REGULAR CALENDAR)
and                                         :
Schwan's Home Service, Inc.
and                                         :
Debra Roberts, n.k.a. Debra Rosencrans,
                                            :
             Respondents.
                                            :


                         MAGISTRATE'S DECISION

                               Rendered on April 17, 2017


             Scott Elliot Smith, L.P.A., and Scott E. Smith; Paul W.
             Flowers Co., L.P.A., and Paul W. Flowers, for relators.

             Ron O'Brien, Prosecuting Attorney, and Jesse                W.
             Armstrong, for respondent Honorable David C. Young.

             Reminger Co., L.P.A., Michael J. Valentine, and Melvin J.
             Davis, for respondents Schwan's Home Service, Inc. and
             Debra Rosencrans Roberts.


                         IN PROHIBITION AND MANDAMUS

      {¶ 7} This is an original action in mandamus and prohibition brought by relators
Douglas and Brenda Dyer (collectively "relators") in relation to an ongoing garnishment
action in the Franklin County Court of Common Pleas. That action, in turn, is related to a
personal injury case brought by relators against respondents Schwan's Home Service, Inc.
No. 16AP-627                                                                            5

("Schwan's") and Debra Rosencrans Roberts ("Roberts"). Respondent Honorable David
C. Young is the presiding judge in the garnishment action.
Findings of Fact:
      {¶ 8} 1. Schwan's, a corporation with its principal place of business in Minnesota,
maintains a business presence in Ohio.
      {¶ 9} 2. Roberts was involved in an automobile accident on December 17, 2007
while driving a truck in the course and scope of her employment with Schwan's.
      {¶ 10} 3. Relator Douglas Dyer suffered injuries in the accident, and together with
his wife, relator Brenda Dyer, commenced a personal injury action against Schwan's and
Roberts in the common pleas court. Dyer v. Ohio Bur. of Workers' Comp., Franklin C.P.
No. 09CVC-18581 ("the personal injury action").
      {¶ 11} 4. A jury awarded relators $10,988,793.11 in damages. Judge Stephen L.
McIntosh, presiding over the personal injury action, journalized the verdict in a final
order dated June 8, 2016.
      {¶ 12} 5. Relators commenced a separate garnishment proceeding in the common
pleas court on June 16, 2016. The matter was assigned to respondent Judge Young. Dyer
v. Rosencrans, Franklin C.P. No. 16JG-020111 ("the garnishment action").
      {¶ 13} 6. On June 9, 2016, relators filed a post-judgment motion for prejudgment
interest. Schwan's filed motions for judgment notwithstanding the verdict, a new trial, or
remittitur on July 7, 2016. These post-trial motions filed in the personal injury action
remain pending.
      {¶ 14} 7. Relators obtained orders and notices of garnishment issued by the duty
judge of the common pleas court on July 5, 2016.
      {¶ 15} 8. Pursuant to the notices of garnishment, relators garnished the sum of
$7,856,007.62 from Schwan's financial accounts.
      {¶ 16} 9. On July 7, 2016, Schwan's filed a motion to stay further proceedings in
the garnishment action.
      {¶ 17} 10. On July 14, 2016, Schwan's filed a motion for stay of proceedings in the
personal injury action. Judge McIntosh granted that motion to stay enforcement of
judgement on July 21, 2016, prohibiting relators from "executing or taking any actions
No. 16AP-627                                                                            6

relating to the June 8, 2016 judgment entry and the June 2, 2016 jury verdict." (July 21,
2016 Jgmt. Entry.)
      {¶ 18} 11. On August 5, 2016, respondent Judge Young issued a stay in the
garnishment action.    In conjunction with the stay, Judge Young ordered that the
previously garnished funds be refunded to Schwan's, contingent on Schwan's posting a
supersedeas bond in an equivalent amount with the Franklin County Clerk of Courts.
      {¶ 19} 12. Schwan's posted the appropriate bond with the clerk of courts.
      {¶ 20} 13. Relators and Schwan's both appealed from Judge Young's August 5,
2016 entry granting a stay in the garnishment action. Both appeals are currently pending
before this court. Dyer v. Schwan's Home Service, Inc., 10th Dist. No. 16AP-574.
      {¶ 21} 14. On September 2, 2016, after filing their direct appeal, relators
commenced this original action with a complaint seeking writs of mandamus and
prohibition.
      {¶ 22} 15. Relators' complaint alleges that they face the threat of irreparable harm
in the form of an inability to collect on their personal injury judgment because the
supersedeas bond currently posted with the clerk of courts does not adequately protect
their financial interest. Relators also allege that they have no expedient and effective
remedy at law, and request writs ordering respondent Judge Young to vacate the
August 5, 2016 order, and proceed with the garnishment action.
Conclusions of Law:
      {¶ 23} Prohibition is an extraordinary writ issuing from a court of superior
jurisdiction and directed at an inferior tribunal, commanding the lower court to cease
abusing or usurping judicial functions. State ex rel. Jones v. Suster, 84 Ohio St.3d 70
(1998). As such, the writ of prohibition tests subject-matter jurisdiction of the lower
court, and will issue in cases of necessity arising from the inadequacy of other remedies.
Id.
      {¶ 24} In order to obtain a writ of prohibition, relators must establish that
(1) respondent Judge Young is about to exercise judicial or quasi-judicial power, (2) the
exercise of that power is unauthorized by law, and (3) denying the writ will result in an
injury for which no other adequate remedy exists in the ordinary course of law. State ex
rel. Thurn v. Cuyahoga Cty. Bd. of Elec., 72 Ohio St.3d 289 (1995); Ohio Bell Tel. Co. v.
No. 16AP-627                                                                               7

Ferguson, 61 Ohio St.2d 74 (1980). Prohibition will not lie to limit or prohibit the
exercise of discretion by a court having jurisdiction over the subject matter and the parties
before it. The writ is not a remedy to correct the mistakes of a lower court in deciding
questions within its jurisdiction, or anticipate errors that would be corrected on appeal.
State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64 (1950). " 'Where a
court has jurisdiction of the subject matter of a pending action, a writ of prohibition will
not be awarded to prevent an anticipated erroneous decision in such action.' " State ex rel.
Timson v. Miller, 10th Dist. No. 93AP-35 (Sept. 30, 1993), quoting State ex rel. Winnefeld
v. Court of Common Pleas of Butler Cty., 159 Ohio St. 225, 234 (1953).
       {¶ 25} The magistrate concludes that the writ of prohibition will not lie in the
present case. Judge Young, as the judge presiding over the garnishment action, has
jurisdiction over the subject matter of the action. The request for a writ of prohibition
does not meet any of the three conditions set forth for such a writ above.
       {¶ 26} First, Judge Young is not about to exercise judicial or quasi-judicial power.
He has already done so in entering the stay and ordering a supersedeas bond.
       {¶ 27} Second, the exercise of judicial power here is authorized by law. Relators
argue that Judge Young's jurisdictional authority over the garnishment action was limited
to a determination of whether Schwan's had established an exemption or defense to
garnishment as set forth in R.C. 2716.13. Relators also argue that Judge Young did not
undertake hearing as required by R.C. 2716.13 in garnishment cases. Nonetheless, Judge
Young presides over a garnishment action brought pursuant to R.C. Chapter 2716, which
gives the common pleas court jurisdiction. "Subject-matter jurisdiction is the power of a
court to entertain and adjudicate a particular class of cases." Bank of Am. v. Kuchta, 141
Ohio St.3d 75, 2014-Ohio-4275, ¶ 19. The alleged error of Judge Young's actions is not
before the court on the basis of a lack of jurisdiction, but on the basis of alleged error in
the exercise of his discretion. True, this court has noted that "[g]arnishments are purely
statutory proceedings, and a court can grant garnishment relief only in accordance with
the terms and upon the grounds set forth in the garnishment statutes." Doss v. Thomas,
183 Ohio App.3d 795, 2009-Ohio-2275, ¶ 11 (10th Dist.), citing Rice v. Wheeling Dollar
Sav. & Trust Co., 163 Ohio St. 606 (1955); Bazzoli v. Larson, 40 Ohio App. 321 (5th
Dist.1931); S. Ohio Fin. Corp. v. Wahl, 34 Ohio App. 518 (1st Dist.1929). Doss, however,
No. 16AP-627                                                                                  8

was decided on appeal from alleged error in garnishment proceedings. It cannot support
relators' assertion that Judge Young will exceed his jurisdiction if he does not vacate his
stay order, but only stands for the opposite proposition that a party retains a legal remedy
by way of appeal to correct any such error in the exercise of the trial court's discretion.
       {¶ 28} Finally, with respect to the third factor, relators have not established an
injury for which no other adequate remedy exists in the ordinary course of law. While
relators argue that the pending appeal, however decided, cannot return them to the
position they occupied before the garnishment was vacated and replaced with a bond, the
magistrate notes that relators have not articulated a meaningful difference between
relators' position as holders of the garnished funds and their status as beneficiaries of an
equivalent bond.
       {¶ 29} In summary, the magistrate concludes that relators have not established a
right to a writ of prohibition.
       {¶ 30} Relators fare no better under the standard for issuance of a writ of
mandamus. In order to obtain a writ of mandamus, relators must establish a clear legal
right to the relief prayed for, a clear legal duty to perform the requested act by respondent,
and the lack of a plain and adequate remedy at law. "Mandamus will not lie to control
judicial discretion in the judicial determination of an issue by an inferior court." State ex
rel. Cash v. Rose, 63 Ohio App. 244 (10th Dist.1939), affd. 136 Ohio St.3d 143 (1939),
citing State ex rel. Tailford v. Bristline, 96 Ohio St. 581 (1917); see also State ex rel.
Panzica v. Mayfield, 54 Ohio App.2d 68 (8th Dist.1977); Newsome v. Wolaver, 2d Dist.
No. 05-CA-73, 2005-Ohio-5968. Moreover, mandamus cannot be used to obtain the
reversal of an adverse ruling when the actual decision to grant or deny relief has already
been made by the trial judge. State ex rel. Baerkircher v. Radcliffe, 31 Ohio St.3d 14
(1987).
       {¶ 31} It is accordingly the magistrate's decision that this court deny relators'
request for relief in prohibition and mandamus.


                                               /S/ MAGISTRATE
                                                MARTIN L. DAVIS
No. 16AP-627                                                                   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).
