State, ex rel. Inland Div., G. M. C. v. Adams, 81-1754

• Decision Date: 14 July 1982
• Docket Number: No. 81-1754,81-1754
• Citation: 1 OBR 77,1 Ohio St.3d 44,437 N.E.2d 605
• Parties: , 1 O.B.R. 77 The STATE, ex rel. INLAND DIVISION, G. M. C., Appellee, v. ADAMS et al., Appellants.
• Court: Ohio Supreme Court

Page 44

1 Ohio St.3d 44

437 N.E.2d 605, 1 O.B.R. 77

The STATE, ex rel. INLAND DIVISION, G. M. C., Appellee, v. ADAMS et al., Appellants.

No. 81-1754.

Supreme Court of Ohio.

July 14, 1982.

Smith & Schnacke Co., L. P. A., Gary W. Auman and Edna Scheuer, Dayton, for appellee.

Hochman & Horwitz Co., L. P. A., and John W. Reed, Jr., for appellant Adams.

William J. Brown, Atty. Gen., and Richard J. Forman, Asst. Atty. Gen., for appellant Industrial Com'n.

PER CURIAM.

The threshold consideration in this case is whether appellee has established the jurisdictional prerequisites for the issuance of a writ of mandamus. It is well-settled that entitlement to a writ of mandamus requires the relator to demonstrate "(1) that he has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that relator has no plain and adequate remedy in the ordinary course of the law." (Emphasis added.) State, ex rel. Harris v. Rhodes (1978), 54 Ohio St.2d 41, 42 374 N.E.2d 641; State, ex rel. National City Bank, v. Bd. of Education (1977), 52 Ohio St.2d 81, 84 , 369 N.E.2d 1200; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141 , 228 N.E.2d 631.

Our review of the record and pleadings in this case uncovers the fact that appellee is appealing the commission's order on reconsideration mailed August 29, 1979. Indeed, the precise language of appellee's complaint in mandamus unambiguously demonstrates the correctness of this proposition.

Paragraph eight of appellee's complaint in mandamus reads as follows: "On November 20, 1978, the Employer filed a Request for Reconsideration with the Industrial Commission. On 8/29/79, the Commission made the following order:

"Upon reconsideration of the order dated 9/11/78, the application for which was filed by the Employer on 11/20/78, the Staff Hearing Officers, Stern and Thaxton, modified said order to find that the correct date of disability is 11/29/74 and orders that an occupational disease claim number be assigned to this claim and as so modified the order of 9/11/78 is affirmed and approved." (Emphasis added.)

Furthermore, paragraph twelve of appellee's complaint in mandamus reads: "Relator states that for all the foregoing reasons, the Industrial Commission's August 29, 1979 award of occupational disease benefits to the Respondent is erroneous, arbitrary, unlawful and constitutes a gross abuse of discretion." (Emphasis added.)

R.C. 4123.519 ², as amended and effective on January 1, 1979, permits a party to an occupational disease claim to appeal a decision of the commission to a court of common pleas if the claim accrued before January 1, 1979. Indeed this remedy was recently reinforced in Morgan v. Western Electric Co. (1982), 69 Ohio St.2d 278, 282 , 432 N.E.2d 157, where this court ruled that R.C. 4123.519 as amended, " * * * is applicable to all decisions rendered by the Industrial Commission on or after January 1, 1979."

Thus, since the commission's order ³ on reconsideration was dated on July 19, 1979, and mailed August 29, 1979, well after the January 1, 1979 effective date of amended R.C. 4123.519, appellee had a plain and adequate remedy at law by which to challenge the commission's order--an appeal to a court of common pleas.

As this court stated in State, ex rel. Pressley v. Indus. Comm., supra, paragraph three of the syllabus: "When a petition stating a proper cause of action in mandamus is filed originally in the Supreme Court or in the Court of Appeals, and 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."

For all the foregoing reasons, therefore, appellee has failed to demonstrate that it was without a plain and adequate remedy at law, a jurisdictional prerequisite for the...