State ex rel. Lyons v. Zaleski

• Decision Date: 19 June 1996
• Docket Number: No. 95-2508,95-2508
• Parties: The STATE ex rel. LYONS, Appellant, v. ZALESKI, Judge, Appellee.
• Court: Ohio Supreme Court

Page 623

75 Ohio St.3d 623

665 N.E.2d 212

The STATE ex rel. LYONS, Appellant, v. ZALESKI, Judge, Appellee.

No. 95-2508.

Supreme Court of Ohio.

Submitted May 7, 1996.

Decided June 19, 1996.

Murray & Murray Co., L.P.A., Michael T. Murray and William H. Bartle, Sandusky, for appellant.

Gregory T. White, Lorain County Prosecuting Attorney, and M. Robert Flanagan, Assistant Prosecuting Attorney, for appellee.

PER CURIAM.

Lyons asserts that the court of appeals erred in granting summary judgment in favor of Judge Zaleski and denying the requested writ. Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 219, 631 N.E.2d 150, 152.

Lyons argues in her first and second propositions of law that Judge Zaleski erroneously transferred her malpractice action from Lorain County to Sandusky County. Lyons's refiled malpractice action was properly venued in Lorain County because one of the defendants was a resident of that county. See Civ.R. 3(B) ("Proper venue lies in any one or more of the following counties: (1) The county in which the defendant resides * * *.") and Civ.R. 3(E) ("In any action, brought by one or more plaintiffs against one or more defendants involving one or more claims for relief, the forum shall be deemed a proper forum, and venue therein shall be proper, if the venue is proper as to any one party other than a nominal party * * *.").

Judge Zaleski claims that he applied forum non conveniens to transfer the malpractice action to Sandusky County. In Chambers v. Merrell-Dow Pharmaceuticals, Inc. (1988), 35 Ohio St.3d 123, 519 N.E.2d 370, paragraph two of the syllabus, we held that "[t]he doctrine of forum non conveniens is consistent, and does not conflict, with the intent or purpose of Civ.R. 3, relating to venue." However, we further held that forum non conveniens may not be applied to a transfer of a properly venued action in an Ohio county to another Ohio county, since Civ.R. 3(C)(4) limits intrastate transfers to transfers to "an adjoining county * * * 'when it appears that a fair and impartial trial cannot be had in the county in which the suit is pending.' " Id., 35 Ohio St.3d at 132, 519 N.E.2d at 377-378; McCormac, Ohio Civil Rules Practice (2 Ed.1992) 32, Section 2.25. Therefore, it appears that Judge Zaleski erred in transferring the malpractice action from Lorain County to Sandusky County based on forum non conveniens.

Nevertheless, even if the foregoing establishes a clear legal right to vacation of the transfer order, a writ of mandamus will not be issued where there is a plain and adequate remedy in the ordinary course of the law. R.C. 2731.05; State ex rel. Hunter v. Certain Judges of Akron Mun. Court (1994), 71 Ohio St.3d 45, 46, 641 N.E.2d 722, 723.

Lyons's contention that Judge Zaleski failed to comply with Civ.R. 3 in transferring the malpractice action to Sandusky County challenges venue and is not jurisdictional. State ex rel. Ruessman v. Flanagan (1992), 65 Ohio St.3d 464, 467, 605 N.E.2d 31, 35. Civ.R. 3(G) provides:

"The provisions of this rule relate to venue and are not jurisdictional. No order, judgment, or decree shall be void or subject to collateral attack solely on the ground that there was improper venue; however, nothing here shall affect the right to appeal an error of court concerning venue." (Emphasis added.)

Judge Zaleski's order changing venue does not constitute a final appealable order and is reviewable only after a final judgment is entered in the malpractice action. See, e.g., State ex rel. Starner v. DeHoff (1985), 18 Ohio St.3d 163, 165, 18 OBR 219, 221, 480 N.E.2d 449, 451. In general, mandamus may not be employed as a substitute for an appeal from an interlocutory order. State ex rel. Newton v. Court of Claims (1995), 73 Ohio St.3d 553, 555, 653 N.E.2d 366, 369.

In addition, extraordinary relief in mandamus or prohibition generally does not lie to challenge a decision on a motion to change venue, because appeal following a final judgment provides an adequate legal remedy. Ruessman, supra, 65 Ohio St.3d at 467, 605 N.E.2d at 35; State ex rel. McCoy v. Lawther (1985), 17 Ohio St.3d 37, 38-39, 17 OBR 30, 32, 476 N.E.2d 1048, 1049.

Lyons contends that the foregoing general rules do not apply, since appeal is an inadequate remedy under the circumstances present in the case at bar. Appeal is inadequate if it is not complete in its nature, beneficial, and speedy. State ex rel. Nichols v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities (1995), 72 Ohio St.3d 205, 209, 648 N.E.2d 823, 826. Lyons relies on Starner and State ex rel. Ohio State Racing Comm. v. Walton (1988), 37 Ohio St.3d 246, 525 N.E.2d 756, in support of her contention that appeal following a final judgment in the Sandusky County case constitutes an inadequate remedy.

In Starner, we affirmed the issuance of writs of mandamus and prohibition to vacate a court's transfer of a claim to another county. The Starners had filed a complaint against several defendants in Stark County. A Stark County judge severed one of the claims and transferred it to Holmes County. We concluded that postjudgment appeal of the wrongful change of venue would be inadequate because "[t]his would defeat the entire purpose behind [the Starners'] actions, which is to have these two claims heard together in order to minimize costs and time." Starner, supra, 18 Ohio St.3d. at 165, 18 OBR at 221, 480 N.E.2d at 452. In the case sub judice, there was no severance of claims and no prospect of proceeding with multiple actions simultaneously. Starner is thus inapposite.

In Ohio State Racing Comm., supra, 37 Ohio St.3d at 248, 525 N.E.2d at 758, we acknowledged the general rule that an extraordinary writ...