Opinion
No. 81-861
Decided February 3, 1982.
Mandamus — To compel jury trial in paternity action — Writ disallowed, when — No clear legal duty to act shown — Cause remanded for factual determination.
APPEAL from the Court of Appeals for Lucas County.
Appellee, Larry Stevenson, is the defendant in a paternity action pending in the Juvenile Division of the Court of Common Pleas of Lucas County. The action was commenced in December 1975. In 1979, the parties entered into a stipulation concerning the results of certain blood tests. At a hearing conducted on August 15, 1979, appellee disagreed with the court's interpretation of the stipulation and requested a trial by jury. The court entered judgment against appellee on the basis of the contested stipulation.
That judgment was reversed on May 30, 1980, by the Court of Appeals and the cause remanded to the trial court for further proceedings. On June 13, 1980, appellee filed a "Demand and/or Motion for Jury Trial" in the Juvenile Court. Appellant, Judge Robert Murray, denied the motion, finding that a jury demand was not timely made under Civ. R. 38(B).
Appellee then instituted this action in mandamus in the Court of Appeals for Lucas County requesting that a writ issue to compel the trial judge to set the paternity action for jury trial. Appellee alleged, inter alia, that at the time the paternity action was commenced, it was the policy of the Juvenile Court to order trials by jury in paternity actions without the necessity of filing a jury demand.
No stipulations of fact, depositions, or other evidence was presented to the court. The parties did not file briefs on the merits, nor was a hearing conducted. Briefs were submitted and oral arguments held with respect to a motion to dismiss filed by the trial judge. On April 15, 1981, the writ was allowed without opinion.
The cause is now before this court upon an appeal as of right.
Messrs. Silverman, Gorman, Wittenberg Wittenberg, Mr. Charles S. Wittenberg and Mr. Nathan L. Silverman, for appellee.
Mr. Anthony G. Pizza, prosecuting attorney, and Ms. Mary G. Trimboli, for appellant.
Upon remand from an appellate court, the lower court is required to proceed from the point at which the error occurred. Commrs. of Montgomery Co. v. Carey (1853), 1 Ohio St. 463, paragraph one of the syllabus. Thus, in the case at bar, the issue is whether appellee was entitled to a jury trial on August 15, 1979, when the stipulation was contested and a jury trial was first demanded.
Paternity actions are governed by the procedure provided for in the trial of civil actions. State, ex rel. Wise, v. Chand (1970), 21 Ohio St.2d 113, paragraph one of the syllabus; Taylor v. Scott (1959), 168 Ohio St. 391. Thus, the provisions of Civ. R. 38 governing trial by jury in civil actions are applicable to paternity proceedings.
Appellant contends that his decision to deny the request of appellee herein for a jury trial was a matter within his judicial discretion which cannot be controlled by a writ of mandamus. R.C. 2731.03; State, ex rel. DeVille Photography, Inc., v. McCarroll (1958), 167 Ohio St. 210. Civ. R. 39(B) provides, in part: "* * * notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues."
Appellee does not assert that timely demand was made under Civ. R. 38(B), and thus, appellant had no clear legal duty to order a jury trial under the Civil Rules.
While the Civil Rules were in effect at the time the paternity action was commenced, appellee alleged that it was the court's policy to order jury trials in all paternity actions, even though no timely jury demand was filed. If the court was operating under such a policy, then appellant may have had a clear duty to grant appellee a jury trial.
No evidence was presented to establish whether such a policy existed and the Court of Appeals did not state its reason for allowing the writ. Since there was no duty upon appellant under the Civil Rules to allow a jury trial and no evidence was presented or findings made as to whether such a duty existed by reason of court policy, the requirements for the issuance of a writ of mandamus were not met. A writ of mandamus will not issue unless relator proves he has a clear right to the relief sought. State, ex rel. McGarvey, v. Ziegler (1980), 62 Ohio St.2d 320, 321; State, ex rel. Roth, v. West (1935), 130 Ohio St. 119, 124.
Accordingly, the judgment of the Court of Appeals is reversed and the cause remanded to determine whether, by operation of a court policy, appellant was under a clear legal duty to grant appellee a trial by jury.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.