State ex rel. Dow Chemical Co. v. Court of Common Pleas of Cuyahoga County, 82-1536

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PER CURIAM; FRANK D. CELEBREZZE
• Citation: 2 Ohio St.3d 119,2 OBR 668,443 N.E.2d 143
• Parties: , 2 O.B.R. 668 The STATE, ex rel. DOW CHEMICAL COMPANY, Appellant, v. COURT OF COMMON PLEAS OF CUYAHOGA COUNTY et al., Appellees.
• Docket Number: No. 82-1536,82-1536
• Decision Date: 23 December 1982

Page 119

2 Ohio St.3d 119 443 N.E.2d 143, 2 O.B.R. 668 The STATE, ex rel. DOW CHEMICAL COMPANY, Appellant,
v.
COURT OF COMMON PLEAS OF CUYAHOGA COUNTY et al., Appellees. No. 82-1536. Supreme Court of Ohio. Dec. 23, 1982.

Weston, Hurd, Fallon, Paisley & Howley, Louis Paisley, Hilary S. Taylor, Cleveland, Rivkin, Leff, Sherman & Radler, Warren S. Radler, Bruce D. Drucker and Matthew W. Cockrell, Chicago, Ill., for appellant.

John T. Corrigan, Pros. Atty., Thomas P. Gill and Patrick J. Carroll, Asst. Pros. Attys., for appellees.

Squire, Sanders & Dempsey, Daniel J. O'Loughlin and John E. Lynch, Jr., Cleveland, urging affirmance, for amicus curiae Central National Bank.

PER CURIAM.

The issue presented herein is whether a writ of prohibition should issue to prevent appellee from enforcing his September 21, 1982 order. It is well-settled that in order for prohibition to lie, three requirements must be satisfied: "(1) the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power; (2) the exercise of such power is unauthorized by law; and (3) it will result in injury for which no other adequate remedy exists." Ohio Bell v. Ferguson (1980), 61 Ohio St.2d 74, 76, 399 N.E.2d 1206 [15 O.O.3d 117]. See, also, State, ex rel. Henry v. Britt (1981), 67 Ohio St.2d 71, 73, 424 N.E.2d 297 [21 O.O.3d 45]; State, ex rel. Bell, v. Blair (1975), 43 Ohio St.2d 95, 96, 330 N.E.2d 902 [72 O.O.2d 53].

This court, in the first paragraph of the syllabus in State, ex rel. Staton v. Common Pleas Court (1965), 5 Ohio St.2d 17, 213 N.E.2d 164 [34 O.O.2d 10], held that:

"The jurisdiction of the Court of Appeals to issue a writ of prohibition does not extend to an interlocutory matter arising during the proceedings in a cause before an inferior tribunal which has jurisdiction of the cause, unless such interlocutory matter involves a usurpation of judicial power."

Page 121

The order from which appellant requests relief is, as appellee suggested below, interlocutory in nature since it is dispositive of less than all of the issues raised in the trial court. Additionally, the record clearly demonstrates that appellee acquired jurisdiction over Dow and the subject matter of the litigation. The question, therefore, remains whether the subject order constitutes a usurpation of judicial power.

In Hale v. State (1896), 55 Ohio St. 210, at page 213, 45 N.E. 199, this court stated:

"The difference between the jurisdiction of courts and...