State ex rel. Huntington Nat'l Bank v. Kontos

• Decision Date: 15 December 2015
• Docket Number: No. 2014–0656.,2014–0656.
• Parties: The STATE ex rel. HUNTINGTON NATIONAL BANK, Appellant, v. KONTOS, Judge, Appellee, et al.
• Court: Ohio Supreme Court

145 Ohio St.3d 102

47 N.E.3d 133

2015 Ohio 5190

The STATE ex rel. HUNTINGTON NATIONAL BANK, Appellant,

v.KONTOS, Judge, Appellee, et al.

No. 2014–0656.

Supreme Court of Ohio.

Submitted July 7, 2015.

Decided Dec. 15, 2015.

Weston Hurd, L.L.P., and Shawn Maestle, Cleveland, for appellant.

Dennis Watkins, Trumbull County Prosecuting Attorney, and William J. Danso, Assistant Prosecuting Attorney, for appellee.

PER CURIAM.

{¶ 1} We affirm the Eleventh District Court of Appeals' dismissal of a complaint for writs of prohibition and procedendo by relator-appellant, Huntington National Bank, against respondent-appellee, Trumbull County Common Pleas Court Judge Peter J. Kontos. Huntington argues that a remand order from the court of appeals precludes Judge Kontos from assigning the underlying breach-of-contract case to a magistrate for an evidentiary hearing and from using evidence adduced at that hearing to determine damages.

{¶ 2} Because Huntington has an adequate remedy at law by way of appeal and because Judge Kontos's jurisdiction to order the evidentiary hearing and to determine damages based on new evidence is not patently and unambiguously lacking, the court of appeals was correct to dismiss the case, and we affirm.

Facts

{¶ 3} In 2006, W. Thomas James and others filed a complaint for breach of contract against Sky Bank—predecessor in interest to the current relator-appellant, Huntington—as well as claims against other parties. James's claim against the bank arose out of a construction loan for a funeral home that James was having built. James alleged that the bank had breached the terms governing the disbursement of funds to the general contractor, causing the contractor to quit before the building was completed. On October 1, 2010, Judge Kontos issued a judgment against the bank for breach of contract and awarded damages.

{¶ 4} The bank filed a timely appeal, and the court of appeals reversed the judgment of the trial court on the issue of the proper standard for calculating damages and remanded for a recalculation.

James v. Sky Bank, 11th Dist. Trumbull No. 2010–T–0116, 2012-Ohio-3883, 2012 WL 3643925. Specifically, the court of appeals held that James, in his breach-of-contract action, was required to present evidence sufficient to prove that the breach proximately resulted in damages that can be determined to a reasonable certainty. Id. at ¶ 31–33, 47–55. The court further held that "additional expenditures after the contractor stopped work are not the proper measure of damages caused by the bank's improper disbursement of funds." Id. at ¶ 52. Rather, the court of appeals stated, "[T]he proper measure of damages under the circumstances of this case would be the difference between the funds the bank improperly released to the contractor ($635,000) for the work the contractor claimed it had performed, and the actual value of that work (in materials and labor)."¹ Id. at ¶ 53.

{¶ 5} In its order remanding the case, the court of appeals instructed Judge Kontos to apply the standard it had articulated for calculating damages to the record and to determine if the evidence justified any damages. Specifically, the court stated: "It is unclear whether the difference between the funds released to [the contractor] and the actual value of the work completed by [the contractor] could be ascertained from the evidence presented." Id. at ¶ 54. "On remand, the trial court is to recalculate damages applying the proper measurement set forth in this opinion based on the evidence contained on the record." Id. at ¶ 61.

{¶ 6} On remand, after briefing and a hearing, Judge Kontos issued a judgment entry stating, "Having now reviewed the record of the trial proceedings, the Court finds that it is unable to arrive at a proper measure of damages as enunciated by the Court of Appeals without additional testimony." Judge Kontos ordered that a new evidentiary hearing on damages would be held before his magistrate.

{¶ 7} Huntington filed this action in procedendo and prohibition in the court of appeals at the same time that it filed a notice of appeal of the trial court's order that a new evidentiary hearing be held. The court of appeals dismissed Huntington's appeal because the trial court's judgment entry ordering a new hearing was not a final, appealable order. James v. Sky Bank, 11th Dist. Trumbull No. 2013–T–0087, 2014-Ohio-1159, 2014 WL 1351591.

{¶ 8} In response to the procedendo and prohibition petition, Judge Kontos filed a motion to dismiss under Civ.R. 12(B), which the court of appeals granted, finding that Huntington has an adequate remedy by way of appeal and that the trial court did not exceed its jurisdiction by ordering an evidentiary hearing.

{¶ 9} Huntington filed a timely appeal to this court.

Analysis

Motion for oral argument

{¶ 10} Huntington has moved for oral argument. Oral argument in a direct appeal is discretionary. S.Ct.Prac.R. 17.02(A). In exercising this discretion, we consider whether the case involves a matter of great public importance, complex issues of law or fact, a substantial constitutional issue, or a conflict among the courts of appeals. State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 16, citing Appenzeller v. Miller, 136 Ohio St.3d 378, 2013-Ohio-3719, 996 N.E.2d 919, ¶ 4, and cases cited therein.

{¶ 11} None of these factors is mentioned in the request for oral argument, and the case involves a straightforward application of the standards for writs of prohibition and procedendo. The motion for oral argument is denied.

Original action

{¶ 12} Huntington argues that because Judge Kontos has determined that no evidence exists in the current record sufficient to award damages to James, under the court of appeals' remand order, Judge Kontos has no choice but to issue judgment for Huntington and must be prohibited from conducting an evidentiary hearing on damages. Huntington therefore requested that the court of appeals issue a writ of procedendo ordering Judge Kontos to issue judgment in its favor and a writ of prohibition preventing him from conducting the hearing. Because the court of appeals correctly granted Judge Kontos's motion to dismiss, we affirm.

Procedendo

{¶ 13} To be entitled to a writ of procedendo, Huntington must show a clear legal right to require the trial court to proceed, a clear legal duty on the part of the trial court to proceed, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d 899 (1995). A writ of procedendo is proper when a court has refused to enter judgment or has unnecessarily delayed in proceeding to judgment. State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180, 184, 652 N.E.2d 742 (1995).

{¶ 14} Huntington is not entitled to a writ of procedendo. "An appeal is an adequate remedy in the ordinary course of law that precludes an action for * * * procedendo." State ex rel. Ward v. Reed, 141 Ohio St.3d 50, 2014-Ohio-4512, 21 N.E.3d 303, ¶ 12, citing State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 250, 673 N.E.2d 1281 (1997), and State ex rel. Sevayega v. McMonagle, 122 Ohio St.3d 54, 2009-Ohio-2367, 907 N.E.2d 1180, ¶ 1. Huntington has a remedy in the ordinary course of the law in that it may appeal the trial court's ruling on its objection to the additional hearing and evidence once the trial court has completed the hearing, redetermined damages, and issued a final order.

{¶ 15} Therefore, the court of appeals was correct in dismissing Huntington's claim for a writ of procedendo, and we affirm.

Prohibition

{¶ 16} To be entitled to a writ of prohibition, Huntington must establish that (1) in ordering the magistrate to conduct an evidentiary hearing, the trial court is about to exercise or has exercised judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of the law. State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 18, 23. The last two elements can be met by a showing that the trial court "patently and unambiguously" lacked jurisdiction. Chesapeake Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204, 2013-Ohio-224, 985 N.E.2d 480, ¶ 11.

{¶ 17} The court of appeals was correct in finding that Huntington is not entitled to a writ of prohibition. " ‘[P]rohibition will [not] issue if the party seeking extraordinary relief has an adequate remedy in the ordinary course of law.’ " State ex rel. Caskey v. Gano, 135 Ohio St.3d 175, 2013-Ohio-71, 985 N.E.2d 453, ¶ 2, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶ 12. An appeal is considered an adequate remedy that will preclude a writ of prohibition. "Unless a relator establishes a patent and unambiguous lack of jurisdiction, extraordinary relief in prohibition * * * will not issue, because the relator has an adequate remedy by appeal." Id., citing State ex rel. Skyway Invest. Corp. v. Ashtabula Cty. Court of Common Pleas, 130 Ohio St.3d 220, 2011-Ohio-5452, 957 N.E.2d 24, ¶ 10.

{¶ 18} Huntington has a remedy in the ordinary course of the law in that it may appeal the trial court's denial of its objection to the additional hearing and the taking of additional evidence once the trial court has completed the hearing, redetermined damages, and issued a final order. Huntington may argue at that time that the trial court exceeded the authority the court of appeals granted to it on remand. However, a writ of prohibition may issue even when there is an adequate remedy at law if the lack of jurisdiction is "patent and unambiguous." Chesapeake Exploration at ¶ 11.

{¶ 19} A court having general subject-matter jurisdiction can determine its own jurisdiction, and a party contesting that jurisdiction has an adequate remedy by way of appeal. State ex rel....