Summary
In McCoy, supra, the Ohio Supreme Court held that the trial court has sound discretion to determine which of the criteria for venue have priority over others.
Summary of this case from Railroad Ventures, Inc. v. DrakeOpinion
No. 84-437
Decided April 24, 1985.
Civil procedure — Change of venue — Mandamus does not lie, when — Plain and adequate remedy by way of appeal.
APPEAL from the Court of Appeals for Cuyahoga County.
This is an appeal as of right from the dismissal by the court of appeals of an original action seeking writs of mandamus, prohibition or procedendo.
Relators-appellants herein are plaintiffs in a medical malpractice action filed in the Court of Common Pleas of Cuyahoga County. That petition reflects the residence of relators to be in Ashtabula County and the addresses for service of all defendants, save one, likewise to be in Ashtabula County, the address for service of defendant Drs. Hill Thomas being that of the statutory agent in Cuyahoga County. After the malpractice action was commenced, defendant Ashtabula General Hospital filed a motion with Judge Lawther, a respondent herein, for a change of venue, contending that venue was properly in Ashtabula County. In opposing such motion, relators served a request for admission on Drs. Hill Thomas asking this defendant to admit that its principal place of business was located within Cuyahoga County. The answer of Drs. Hill Thomas made such admission. Thereafter, Judge Lawther granted the motion for change of venue and the court file was thereupon sent to the Clerk of Courts for Ashtabula County, a respondent herein.
In the original action filed in the court of appeals, relators asserted a clear right to venue in Cuyahoga County, and a consequent duty of the Court of Common Pleas of Cuyahoga County to exercise jurisdiction and proceed with the malpractice claim. Further, relators sought an order prohibiting the Clerk of Courts for Ashtabula County from taking further action and requiring the clerk to return the file or files pertaining to the malpractice claim. Relators asserted that they were without plain and adequate remedy at law.
The court of appeals held that it lacked jurisdiction to issue any order beyond its district respecting the malpractice case already transferred to Ashtabula County. As to the writ of mandamus sought to be directed to the Court of Common Pleas of Cuyahoga County, the court of appeals held that action moot.
Thomas Jones and Stephen G. Thomas, for appellants.
Warren Young, Carl F. Muller and Stuart W. Cordell, for appellee Ashtabula General Hospital.
Cyril J. McIlhargie, for appellee Drs. Hill Thomas.
John T. Corrigan, prosecuting attorney, for appellee Robert M. Lawther, Judge.
The parties hereto place considerable emphasis in both their framing of the issues and arguments on (1) whether the order of the Court of Common Pleas of Cuyahoga County granting change of venue to Ashtabula County was proper; and (2) whether a court of appeals has jurisdiction to issue extraordinary writs beyond the boundaries of its appellate jurisdiction. For reason of our resolution herein, it is not necessary that we dispose of those questions.
The question here is whether relators have a plain and adequate remedy in the ordinary course of the law by way of appeal. There is no question presented here as to the jurisdiction of the Court of Common Pleas of Cuyahoga County to either proceed to determination of the malpractice action filed by relators or to determine, as it did, to transfer such action to Ashtabula County. Civ. R. 3(B) sets forth the necessary criteria for venue. Relators met at least one such criterion for venue in Cuyahoga County, and several criteria for venue in Ashtabula County. While arguments are presented here by the parties as to whether certain of the criteria for determination of venue have priority over others, such determination was properly within the sound discretion of the Court of Common Pleas of Cuyahoga County. The issue of whether that court abused its discretion in so transferring the case may be perfected on appeal by relators upon disposition of their malpractice claim in the Court of Common Pleas of Ashtabula County. Civ. R. 3(G) provides:
"The provisions of this rule relate to venue and are not jurisdictional. No order, judgment, or decree shall be void or subject to collateral attack solely on the ground that there was improper venue; however, nothing here shall affect the right to appeal an error of court concerning venue." (Emphasis added.)
R.C. 2731.05 provides: "The writ of mandamus must not be issued when there is plain and adequate remedy in the ordinary course of the law." Relators have available to them an adequate remedy in the ordinary course of the law by way of appeal. As was stated in paragraph three of the syllabus in State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141 [40 O.O.2d 141], pertaining to mandamus, when "* * * it is determined that the relator has a plain and adequate remedy in the ordinary course of the law by way of appeal, neither the Supreme Court nor the Court of Appeals has authority to exercise jurisdictional discretion but those courts are required to deny the writ. * * *"
As to the writs sought to be directed to the Clerk of Courts for Ashtabula County, sounding both in prohibition and mandamus, the predicate for such incidental writs is based on the validity of the mandamus sought to issue against the Court of Common Pleas of Cuyahoga County. Since the court of appeals had no authority to exercise jurisdictional discretion with respect to the writ of mandamus sought against the court of common pleas, it likewise had no authority to issue writs in either prohibition or mandamus to the Clerk of Courts for Ashtabula County — for reason of the adequacy of relators' remedy at law by way of appeal. See State, ex rel. McKee, v. Cooper (1974), 40 Ohio St.2d 65 [69 O.O.2d 396].
For reason of the foregoing, the judgment of the court of appeals dismissing relators' petition for writs of mandamus, prohibition or procedendo is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.