[Cite as State ex rel. Northcoast Anesthesia Providers, Inc. v. Calabrese, 2015-Ohio-4910.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103164



          STATE OF OHIO, EX REL.
NORTHCOAST ANESTHESIA PROVIDERS, INC. ET AL.

                                                                      RELATORS

                                                       vs.


            THE HONORABLE DEENA R. CALABRESE

                                                                      RESPONDENT




                                            JUDGMENT:
                                           WRITS DENIED


                                  Writs of Prohibition and Mandamus
                                          Motion No. 487794
                                           Order No. 490643

        RELEASE DATE: November 20, 2015
ATTORNEY FOR RELATORS

Douglas G. Leak
Hanna, Campbell & Powell, L.L.P.
3737 Embassy Parkway - Suite 100
Akron, Ohio 44333


ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Charles E. Hannan
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
TIM McCORMACK, J.:

       {¶1}    Relators, Northcoast Anesthesia Providers, Inc., Zoard Vasarhelyi, M.D.,

and Rostylav Koziy, M.D., commenced this original action seeking writs of prohibition

and mandamus directing respondent Judge Deena Calabrese to discontinue any further

actions in the prejudgment interest proceedings and to compel her to issue a final

judgment on the jury verdict and all other claims in Daniels v. Northcoast Anesthesia

Providers, Inc., Cuyahoga C.P. No. CV-11-764060 (the “Daniels case”).             Relators’

request for an alternative writ was denied. Respondent moved for summary judgment,

which relators have opposed. For the reasons that follow, we grant respondent’s motion

for summary judgment and deny the writs.

       {¶2}   The Daniels case proceeded to a jury trial on November 4, 2013, on

plaintiffs’ medical malpractice claims.    The jury rendered a verdict in plaintiffs’ favor

that was in excess of $3 million. Plaintiffs then moved for prejudgment interest. On

May 8, 2015, relators’ counsel sent correspondence and enclosed a check in the amount

of $22,781 to plaintiffs’ counsel purporting to be “the maximum prejudgment award

[plaintiffs] could recover in [the Daniels case].”   The same day, relators’ counsel filed a

notice of unconditional tender of prejudgment interest award and request for final

judgment journal entry. Relators also filed motions to quash subpoenas and sought a

protective order arguing, among other things, that the prejudgment interest proceedings

were moot based on the check that had been presented to plaintiffs’ counsel. In opposing

that motion, plaintiffs stated “contrary to the representations in Defendants’ brief, they
have not tendered the full amount of prejudgment interest possible.”          The Daniels

plaintiffs, through counsel, also filed a notice of rejection of defendants’ offer to settle

prejudgment interest claim on June 23, 2015. Two days later, the Daniels plaintiffs filed

their opposition to defendants’ (relators) motion to stay the prejudgment interest

proceedings in the Daniels case.

       {¶3} In June 2015, respondent issued the following order in the Daniels case:

       Over the last month and a half, the parties have filed several motions in
       which they battle over the propriety of further discovery, and ultimately a
       hearing, on the issue of prejudgment interest. On 06/04/2015, the court
       held an attorney conference to further explore the parties’ arguments.
       Having carefully considered the arguments at the June 4 conference, as well
       as the parties’ briefs and cases cited therein, the court finds plaintiffs’
       arguments well taken, and therefore rules as follows: Defendants’ motion
       for stay of prejudgment interest proceedings is denied. Defendants’
       motion to quash subpoenas and for protective order is denied. Plaintiffs’
       motion to compel depositions and for sanctions is granted in part and denied
       in part. Plaintiffs’ motion to compel is granted. Depositions are to be
       conducted forthwith. Plaintiffs’ request for sanctions, however, is denied.
        Defendants’ motion to continue prejudgment interest hearing is moot.
       The court will reschedule the hearing via separate entry.

       {¶4} This court takes judicial notice that in August 2015, respondent stayed all

proceedings in the Daniels case pending the Ohio Supreme Court’s resolution of relators’

appeal in Daniels v. Northcoast Anesthesia Providers, Inc., Ohio Supreme Court No.

2015-1412, which pertains to a discovery order issued in the prejudgment interest

proceedings.

       {¶5} Based on the record and the law, respondent is entitled to judgment because

relators have not established the existence of any genuine issue of material fact regarding

any of the elements necessary for issuing either writ.
       {¶6} “A writ of prohibition is an extraordinary remedy that is granted in limited

circumstances with great caution and restraint.” State ex rel. Corn v. Russo, 90 Ohio

St.3d 551, 554, 2001-Ohio-15, 740 N.E.2d 265.

       {¶7} To obtain a writ of prohibition, relators are required to establish: (1) that

Judge Calabrese is about to exercise judicial or quasi-judicial power, (2) that the exercise

of that power is unauthorized by law, and (3) that denying the writ would result in injury

for which no other adequate remedy exists in the ordinary course of law. State ex rel.

Abraitis v. Gallagher, 143 Ohio St.3d 439, 2015-Ohio-2312, 39 N.E.3d 491, ¶ 9.

       {¶8} Relators need not demonstrate the lack of an adequate remedy if the court’s

lack of jurisdiction is “patent and unambiguous.” Id.

       {¶9} The requisites for mandamus are equally well established: 1) the relator

must establish a clear legal right to the requested relief; 2) the respondent must possess a

clear legal duty to perform the requested relief; and 3) the relator does not possess nor

possessed an adequate remedy at law. State ex rel. Tran. v. McGrath, 78 Ohio St.3d 45,

676 N.E.2d 108 (1997).

       {¶10} Mandamus is precluded if relator has or had an adequate remedy of law

even if relator fails to use it. State ex rel. Nash v. Fuerst, 8th Dist. Cuyahoga No. 99027,

2013-Ohio-592, ¶ 6, citing State ex rel. Tran, and State ex rel. Boardwalk Shopping Ctr.,

Inc. v. Court of Appeals for Cuyahoga Cty., 56 Ohio St.3d 33, 564 N.E.2d 86 (1990). “It

must be emphasized that a writ of mandamus is an extraordinary remedy which is

carefully and cautiously granted only when there exists no plain and adequate remedy in
the ordinary course of the law.” State ex rel. Fostoria Daily Review Co. v. Fostoria

Hosp. Assn., 32 Ohio St.3d 327, 512 N.E.2d 1176 (1987).

       {¶11} “Absent a patent and unambiguous lack of jurisdiction, a court having

general subject-matter jurisdiction can determine its own jurisdiction, and a party

challenging the court's jurisdiction has an adequate remedy by way of appeal.” State ex

rel. Steffen v. Myers, 143 Ohio St.3d 430, 2015-Ohio-2005, 39 N.E.3d 483, ¶ 17.

       {¶12} Relators do not claim the absence of an adequate remedy at law. Relators

argue that respondent is patently and unambiguously without jurisdiction to proceed. It

is relators’ belief that once they unilaterally calculated the alleged total amount of

prejudgment interest that could be due to the Daniels plaintiffs and sent payment to

plaintiffs’ counsel in that amount, respondent was patently and unambiguously stripped of

jurisdiction to preside over the prejudgment interest proceedings.          Relators have

provided no law that would support this conclusion.

       {¶13}    Respondent has jurisdiction over prejudgment interest proceedings

pursuant to R.C. 1343.03(C). It is clear from the evidence in this action that the Daniels

plaintiffs are not in agreement with relators regarding the total amount of prejudgment

interest that may be awarded to them. There is no evidence of any settlement regarding

the prejudgment interest, and the court has not entered an order to establish the amount of

prejudgment interest.      Accordingly, respondent has jurisdiction to resolve the

prejudgment interest dispute between these parties.   Relators have an adequate remedy at
law to challenge the court’s exercise of its jurisdiction by way of a direct appeal once a

final judgment is rendered in the case.

       {¶14} Relators’ sole opposition to respondent’s motion for summary judgment is

their belief that a genuine issue of material fact exists that should preclude respondent’s

summary judgment motion.        Relators refer to the dispute over whether their unilateral

calculation of prejudgment interest should be considered a full satisfaction and resolution

of the prejudgment interest proceedings in the Daniels case.      However, in an original

action, the summary judgment standard pertains to determining whether any genuine

issues of material fact exist regarding the factors necessary for issuance of the requested

writ. In this case, respondent has established that there are no genuine issues of material

fact that would preclude her motion for summary judgment on relators’ complaint for

writs of mandamus and prohibition concerning her continued exercise of jurisdiction over

the prejudgment interest proceedings.      The determination of whether relators’ tender of

payment constitutes the entire amount of prejudgment interest due or whether that would

render the prejudgment interest proceedings moot are matters to be resolved by

respondent, not this court by way of an extraordinary writ.   Accord State ex rel. Goddard

v. Niehaus, 1st Dist. Hamilton No. C-970305, 1998 Ohio App. LEXIS 817 (Mar. 6, 1998)

(“Extraordinary writs are not appropriate to challenge the acts of a trial court having

jurisdiction of the subject matter and the parties.”).
       {¶15}   For all of the foregoing reasons, respondent’s motion for summary

judgment is granted.    Relators to pay costs.   The clerk of courts is directed to serve

notice of this judgment upon all parties as provided in Civ.R. 58(B).

       {¶16} Writs denied.




TIM McCORMACK, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and
SEAN C. GALLAGHER, J., CONCUR
