State ex rel. Jo Ann Hall Hawk v. William C. McCracken, Case
| Decision Date | 23 September 1991 |
| Docket Number | 91-LW-2211,CA90-04-005 |
| Parties | STATE OF OHIO, ex rel., JO ANN HALL HAWK, et al., Relators v. WILLIAM C. McCRACKEN, Respondent CASE |
| Court | Ohio Court of Appeals |
John R Ensley, 19 Clay Street, Suite 1, Dayton, Ohio 45402 and Joseph Burke, 4050 Benfield Drive, Kettering, Ohio 45429, for relators
Thomas E. Jenks and Scott G. Oxley, 205 E. First Street, Dayton OhIo 45402, for respondent
DECISION
This matter came on to be considered upon a complaint in mandamus filed by counsel for relators on April 6, 1990, the answer of respondent filed on J.ne 19, 1990, a stipulation of evidence and upon the briefs of counsel.
In March 1982, relator, Jo Ann Hall Hawk, acting both individually and on behalf of her minor daughter, Evelyn Hall, filed a medical malpractice action in the Clinton County Court of Common Pleas, naming two hospitals and several individual physicians as defendants. The defendants subsequently moved for summary judgment on the basis that relators' action was barred under R.C. 2305.11(B), the applicable statute of limitations. In an opinion dated July 12, 1984, Judge Paul E. Riley found that the limitations period had run on relators' action and granted summary judgment to the defendants. The court journalized its judgment entry on August 17, 1984. On August 15, 1985 relators filed a motion to "amend the judgment order," claiming that although they received a draft copy of the entry, they never received a copy of the journalised judgment entry and were given no notice of the trial court's judgment, thereby precluding the possibility of a timely appeal under App. R. 4(A).
While relators' motion to amend was still pending, the Ohio Supreme Court issued two decisions, both of which relators cite in support of their complaint for mandamus. On August 13, 1986, the supreme court issued its decision in Moldovan v. Cuyahoga Cty. Welfare Dept. (1986), 25 Ohio St. 3d 293, in which it held that the opportunity to file a timely appeal pursuant to App. R. 4(A) is rendered meaningless when a party is not given reasonable notice of an appealable order. In its decision, the court suggested that Ohio should have a rule providing notice of final appealable orders, citing Fed. R. Civ. P. 77(d) as a model. Until the promulgation of such a rule, the court concluded, the failure to give reasonable notice of final appealable orders denied litigants the due process right to legal redress of injuries. Id. at 296. The court did not delineate what constituted "reasonable notice," but did, however, note that reasonable notice did not necessarily require actual notice. Id., fn. 3. On December 22, 1986, the court issued its decision in Mominee v. Scherbarth (1986), 28 Ohio St. 3d 270, in which it held R.C. 2305.11(B) unconstitutional as applied to minors.
Subsequently, on January 26, 1987, the trial court overruled relators' motion to amend the August 17, 1984 judgment guilty. Three and one-half years later, on September 18, 1990, relators filed a notice of appeal of the August 17, 1984 entry granting summary judgment to the defendants. This court subsequently dismissed the appeal as untimely filed. See Hawk v. Clinton Memorial Hosp. (Apr. 29, 1991), Clinton App. No. CA90-09-019, unreported.
In conjunction with the dirt appeal, relators also filed the subject complaint in mandamus against respondent, Judge William C. McCracken, Judge Riley's successor in interest, requesting this court to issue a writ of mandamus ordering respondent to either (1) vacate the August 17, 1984 judgment entry and refile the entry and provide notice of the same to relators so as to afford them the opportunity to timely perfect an appeal, or (2) reinstate relators' lawsuit in light of the supreme court's decision in Mominee, supra. Relators claim that the trial court's failure to provide notice of its August 17, 1984 judgment entry violated the notice requirements established in Moldovan, supra. Furthermore, relators claim that the trial court's decision, based upon relators' failure to comply with R.C. 2305.11(B), is rendered invalid by Mominee, supra.
Mandamus is an extraordinary remedy, and a writ will not be issued unless the relator shows: (1) a clear legal right to relief; (2) a clear legal duty on the part of the respondent to perform the requested act; and (3) no plain and adequate remedy in the ordinary course of law. State, ex rel. Caspar, v. Dayton (1990), 53 Ohio St. 3d 16; State, ex rel. Cleveland Hts., v. Cuyahoga Metro. Hous. Auth. (1990), 50 Ohio St. 3d 47; and State, ex rel. Credit Life Ins. Co., v. Springfield (1990), 49 Ohio St. 3d 270. Although a writ of mandamus may be issued to require an inferior court to exercise its judgment, or proceed with the discharge of any of its functions, a writ cannot be used to control a lower court's exercise of its judicial discretion. State, ex rel. Ballard, v. O'Donnell (1990), 50 Ohio 3d 182; R.C. 2731.03.
We initially note that the Ohio Rules of Civil Procedure do not provide for a post-judgment motion to "amend" a judgment entry such as that filed by relators on August 15 1985. Although Civ. R. 60 provides that a party may file a motion to vacate a judgment, relators did not request relief from the judgment itself or ask the trial court to vacate its August 17, 1984 entry. Rather, relators simply requested that the trial court "amend the judgment entry so as to refile the judgment order" in order to "modify the effective date of the judgment entry." Although mandamus is the proper remedy to compel a lower court to set aside and vacate an order which is either unlawful or exceeds the court's authority, Ballard, supra, at 184, we can find no authority to...
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