[Cite as Technical Constr. Specialties, Inc. v. DeWeese, 2018-Ohio-213.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



TECHNICAL CONSTRUCTION                                      JUDGES:
SPECIALTIES, INC., dba                                      Hon. W. Scott Gwin, P. J.
MASTERFLOORS                                                Hon. John W. Wise, J.
                                                            Hon. Earle E. Wise, Jr., J.
        Relator

-vs-
                                                            Case No. 17 CA 69
JAMES DEWEESE, JUDGE,
RICHLAND COUNTY COMMON
PLEAS COURT

        Respondent                                          OPINION




CHARACTER OF PROCEEDING:                                Writ of Prohibition and Mandamus



JUDGMENT:                                               Denied



DATE OF JUDGMENT ENTRY:                                 January 19, 2018



APPEARANCES:

For Relator                                             For Respondent

DANIEL M. WALPOLE                                       JUDGE JAMES DEWEESE
411 Quaker Square                                       RICHLAND COUNTY COURT of
120 East Mill Street                                    COMMON PLEAS
Akron, Ohio 44308                                       50 Park Avenue East
                                                        Mansfield, Ohio 44902
Richland County, Case No. 17 CA 69                                                          2

Wise, John, J.

         {¶1}   Relator, Technical Construction Specialties, Inc. dba Masterfloors, has filed

a Complaint for Writ of Prohibition and Mandamus requesting the trial court be prohibited

from holding a trial and requiring the trial court to vacate its order denying summary

judgment. Respondent has filed a “Response to Complaint” arguing the writs should not

issue.

                                            FACTS

         {¶2}   The question presented in the complaint is whether the trial court lacked

jurisdiction to vacate or reconsider an order granting summary judgment and set the

underlying case for trial.

         {¶3}   Summary judgment was granted below in favor of Relator by Judge

Henson. Thereafter, the parties appealed the trial court’s ruling to this Court. We held

the order being appealed was not a final, appealable order. Relator interprets our holding

in the appellate case as one which remanded the case the trial court for the sole purpose

of having the trial court resolve the issue of attorney fees.

         {¶4}   In our opinion we held, “In the case sub judice, there is no final, appealable

order. As noted by the parties and the trial court, there are claims that remain pending

between various parties. The trial court's October 9, 2013 Order, which resolves the

claims between appellants and appellee, does not contain Civ.R. 54(B) language which

is required when fewer than all the claims or the rights of fewer than all the parties have

been adjudicated. Nor does the trial court's November 4, 2013 Order contain such

language. In short, there is no Order which both resolves all of the claims of the parties
Richland County, Case No. 17 CA 69                                                            3

to these appeals and contains Civ.R. 54(B) language.” TCS, Inc. v. Bogner Constr., 5th

Dist. Richland No. 13CA101, 2014-Ohio-1982, ¶ 35.

       {¶5}   At some point, Judge Henson, the judge who granted summary judgment

in favor of Relator, retired. Approximately two years after our opinion finding there was

no final, appealable order, Respondent, the judge now assigned to the case, set the

matter for a pretrial.   Eventually Judge DeWeese reconsidered and vacated Judge

Henson’s order granting summary judgment in favor of Relator and set the case for trial.

Relator in turn filed the instant complaint.

                             PROHIBITION AND MANDAMUS

       {¶6}   “To be entitled to a writ of prohibition, [a relator or petitioner] must establish

that (1) the respondent is about to exercise judicial or quasi-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. The last 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.” State ex rel. Smith v. Hall, 145 Ohio St.3d 473,

2016-Ohio-1052, 50 N.E.3d 524, ¶ 7.

       {¶7}   “‘[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.
Richland County, Case No. 17 CA 69                                                          4


       {¶8}   “For a writ of mandamus to issue, the relator must establish a clear legal

right to the relief prayed for; the respondent must have a clear legal duty to perform the

act; and the relator must have no plain and adequate remedy in the ordinary course of

the law.” State ex rel. Widmer v. Mohney, 11th Dist. Geauga No. 2007-G-2776, 2008-

Ohio-1028, ¶31.

              JURISDICTION TO RECONSIDER SUMMARY JUDGMENT

       {¶9}   Relator does not contend Respondent lacks or lacked jurisdiction over the

underlying case. Rather, Relator’s only contention is that Respondent lacked jurisdiction

to modify the order issued by Judge Henson granting summary judgment.

       {¶10} This Court dismissed the appeal in the underlying case because the order

was not yet a final, appealable order.

       {¶11} The Supreme Court has explained, “An order which adjudicates one or

more but fewer than all the claims or the rights and liabilities of fewer than all the parties

must meet the requirements of R.C. 2505.02 and Civ.R. 54(B) in order to be final and

appealable. Rule 54(B) makes mandatory the use of the language, “there is no just reason

for delay.” Unless those words appear where multiple claims and/or multiple parties exist,

the order is subject to modification and it cannot be either final or appealable. Jarrett

v. Dayton Osteopathic Hospital, Inc. (1985), 20 Ohio St.3d 77, 20 OBR 407, 486 N.E.2d

99; Whitaker-Merrell Co. v. Geupel Construction Co. (1972), 29 Ohio St.2d 184, 58

O.O.2d 399, 280 N.E.2d 922, syllabus.” Noble v. Colwell, 44 Ohio St.3d 92, 96, 540

N.E.2d 1381, 1385 (1989) (emphasis added).

       {¶12} Relator relies on the holding in Ricciardi v. D’Apolito, 7th Dist. Mahoning No.

09MA60, 2010-Ohio-1016, in support of its position that summary judgment cannot be
Richland County, Case No. 17 CA 69                                                     5


vacated as Respondent did. The facts presented in this case are not the same as those

presented in Ricciardi where a writ of prohibition was granted because the trial court

vacated a summary judgment ruling after the ruling became a final, appealable order.

The Ricciardi court held, “the trial court was not permitted to modify or vacate the

judgment except through the filing of an appropriate motion as set forth in the Rules for

Civil Procedure.” The holding in Riccardi hinged on the fact that the order was already a

final order. In the instant case, we have already held the order was not yet a final,

appealable order. Because a final order did not exist, the order granting summary

judgment was subject to modification.

       {¶13} Respondent is not about to exercise judicial power that is unauthorized by

law. Therefore, the writ of prohibition will not issue. Further, Relator has failed to

demonstrate he has a clear legal right to have Respondent vacate his order setting the

case for trial. Likewise, the writ of mandamus will not issue.


By: Wise, John, J.

Gwin, P. J., and

Wise, Earle, Jr., J., concur.




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