Opinion
No. 83-810
Decided June 27, 1984.
Mandamus — Writ denied, when — Adequate remedy at law.
APPEAL from the Court of Appeals for Cuyahoga County.
On December 10, 1982 the Abbey Nursing Home, Inc., and its administrator, Max Strauss, appellants, each filed a complaint for a writ of mandamus naming appellees, the Court of Common Pleas of Cuyahoga County and Judge George J. McMonagle, as respondents. Both complaints contested appellees' exercise of jurisdiction over the case of Estate of Alma Richardson v. Abbey Nursing Home, Inc., et al. (July 26, 1982), Cuyahoga C.P. No. 78-988159, unreported, as well as the decision therein. That case was originally tried in February 1980 before Judge John Maxwell and resulted in a verdict against appellants. On appeal, the judgment was reversed and the cause remanded to the court of common pleas for a new trial.
On remand, the case was initially assigned to Judge Robert Lawther and subsequently transferred to Judge Leo Spellacy. Without journal entry, the case was assigned to Judge McMonagle, retired, who was sitting by appointment of this court.
Prior to the commencement of the second trial, appellants filed a motion to dismiss for failure to join indispensable parties, namely, the Ohio Department of Public Welfare and the Cuyahoga County Welfare Department. The motion was overruled on July 1, 1982. The second trial began on July 9, 1982.
The jury returned a verdict against appellants in the amount of seventy-five thousand dollars in compensatory damages and three hundred thousand dollars in punitive damages. Judge McMonagle entered judgment against appellants for the aggregate amount, but, following a hearing, reduced it to a total of two hundred fifty thousand dollars.
Appellants posted a supersedeas bond in the amount of two hundred eight thousand dollars and filed an appeal in the Court of Appeals for Cuyahoga County. During the pendency of that appeal, appellants filed the instant mandamus actions. Alleging that appellees were totally without jurisdiction to try and render judgment in the second trial, appellants sought to enjoin enforcement of the judgment or have it vacated and the complaint dismissed for failure to join indispensable parties.
The court of appeals consolidated both complaints and dismissed the actions on March 30, 1983. The cause is now before this court upon an appeal as of right.
Messrs. Willacy LoPresti, Mr. Aubrey B. Willacy, Mr. Timothy A. Marcovy, Messrs. Weiner, Orkin, Abbate Suit and Mr. Louis H. Orkin, for appellants.
Mr. John T. Corrigan, prosecuting attorney, Mr. Thomas P. Gill and Mr. Patrick Carroll, for appellees.
This court has consistently held that mandamus will not lie where there is an adequate remedy at law. Appellants do not contest their right to appeal the judgment of the trial court. However, State, ex rel. Sowell, v. Lovinger (1983), 6 Ohio St.3d 21, is cited for the proposition that where there is a total want of jurisdiction mandamus will lie regardless of the existence of an adequate remedy at law. In Sowell, however, appellants sought both a writ of mandamus and a writ of prohibition. The existence of an adequate remedy at law will not bar an action in prohibition where there is a total want of jurisdiction. State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St.2d 326 [59 O.O.2d 387]. That is not the case in mandamus actions except where there is a total want of appellate jurisdiction and, consequently, no adequate remedy at law. See, e.g., State, ex rel. Osborn, v. Jackson (1976), 46 Ohio St.2d 41 [75 O.O.2d 135].
It is well-settled that mandamus will not substitute for an appeal. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28. The judgment of the court of appeals dismissing the application for a writ of mandamus is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.