State ex rel. Hardesty v. Williamson, 82-1781

• Citation: 459 N.E.2d 552,9 Ohio St.3d 174
• Decision Date: 15 February 1984
• Docket Number: No. 82-1781,82-1781
• Parties: , 9 O.B.R. 460 The STATE, ex rel. HARDESTY, Appellant, v. WILLIAMSON, Judge, Appellee.
• Court: United States State Supreme Court of Ohio

Page 174

9 Ohio St.3d 174

459 N.E.2d 552, 9 O.B.R. 460

The STATE, ex rel. HARDESTY, Appellant, v. WILLIAMSON, Judge, Appellee.

No. 82-1781.

Supreme Court of Ohio.

Feb. 15, 1984.

Douglas B. Dougherty, Upper Arlington, for appellant.

Betty D. Montgomery, Pros. Atty., and James H. Granecki, Asst. Pros. Atty., for appellee.

PER CURIAM.

This court has consistently held that entitlement to a writ of prohibition is dependent upon the demonstration of the following three requirements: "(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 . See, also, State ex rel. Wall v. Grossman (1980), 61 Ohio St.2d 4, 398 N.E.2d 789 ; State ex rel. Geauga County Budget Comm. v. Court (1982), 1 Ohio St.3d 110, 111, 438 N.E.2d 428; State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 29, 451 N.E.2d 225.

The record reveals that concurrent with or soon after the prohibition action was filed in the court of appeals, appellant filed a discretionary appeal from the October 5, 1982 order, in which Judge Williamson declined to relinquish jurisdiction over the custody and child support issues. That appeal set forth precisely the same contentions contained in the present original action. On April 1, 1983, the court of appeals released its decision in that discretionary appeal, concluding that the juvenile court erred in transferring the case to the Wood County domestic relations court. The court of appeals therefore ordered the cause remanded to the juvenile court for further proceedings.

We find that the availability of a plain and adequate remedy by way of appeal, of which appellant has availed himself, is fatal to appellant's request for a writ of prohibition.

It is well-settled that a " * * * discretionary right of appeal * * * [constitutes] a sufficiently plain and adequate remedy in the ordinary course of the law." State ex rel. Cleveland v. Calandra (1980), 62 Ohio St.2d 121, 122, 403 N.E.2d 989 ; State ex rel. Berger v. McMonagle, supra, 6 Ohio St.3d at 30, 451 N.E.2d 225. Moreover, where such a discretionary appeal exists, this court has consistently held that prohibition cannot be used as a substitute therefor. State ex rel. Rose Hill Burial Park v. Moser (1982), 1 Ohio St.3d 13, 14, 437 N.E.2d 300; State ex rel. Crebs v. Court of Common Pleas (1974), 38 Ohio St.2d 51, 52, 309 N.E.2d 926 ; State ex rel. Toerner v. Common Pleas Court (1971), 28 Ohio St.2d 213, 277 N.E.2d 209 ; State ex rel. Rhodes v. Solether (1955), 162 Ohio St. 559, 124 N.E.2d 411 .

Appellant not only possessed an adequate remedy at law by way of appeal, but he pursued that remedy and received a decision from the court of appeals on the precise issue which he now seeks to place before this court through an action in prohibition. Without question, appellant is seeking to employ the writ as a substitute for, or in conjunction with, a discretionary appeal contrary to this court's prior pronouncements.

In addition, we conclude that in view of the April 1, 1983 decision of the court of appeals, the subject action has been rendered moot. In State ex rel. Stefanick v. Municipal Court (1970), 21 Ohio St.2d 102, 104, 255 N.E.2d 634 , this court stated that "[p]rohibition is a preventive writ rather than a corrective remedy and is designed to prevent a tribunal from proceeding in a matter which it is not authorized to hear and determine." However, where factual circumstances arise subsequent to the filing of a complaint requesting a writ of prohibition, which render the basis of the...