2005 Ohio 6243 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} The following facts, which are pertinent to this opinion, are gleaned from the relators' complaint for a writ of mandamus, the relators' application for an alternative writ of mandamus, the respondent's motion to dismiss, and the relators' brief in opposition to the motion to dismiss. On August 16, 2004, relator-Austin filed a complaint with a jury demand, grounded in medical malpractice, against relator-Metrohealth Medical Center in the Cuyahoga County Court of Common Pleas. The respondent was assigned to handle all court activity, including motions, emergency matters, case management conferences, pretrials, trials, and any post-trial matters associated with the cases assigned to the docket. See Loc.R. 15 of the Court of Common Pleas of Cuyahoga County, General Division. On September 26, 2005, the relators filed an "agreement for referral for submission to retired Judge pursuant to R.C. 2701.10" with the Clerk of the Cuyahoga County Court of Common Pleas. The agreement for referral, as executed between the relators, provided in pertinent part that:
1. Plaintiff(s) Cheryl Austin, Adm. and Defendant(s) MetroHealth Medical Center do hereby agree that this case shall be transferred to Judge Peggy Foley Jones, a Retired Judge, who shall: * * * a. Hear and determine all issues of law and fact which may hereafter arise in this case, preside over a jury which will receive evidence and render a judgment adjudicating the action or proceeding in its entirety, including all post-trial proceedings, if any. * * *
2. The parties agree to assume the responsibility for providing all facilities, equipment, and personnel reasonably deemed necessary by Judge Jones during her consideration of the action or proceeding referred, or the issue(s) or question(s) submitted, and agree to pay all costs arising out of the provision of facilities, equipment and personnel, if necessary.
3. The parties agree to pay the sum of $300 per hour plus all reasonable expenses incurred incident to the conduct of the proceedings. Payment of all amounts due and owing to Judge Jones for her services shall be made at such times and in such amounts, as the parties and Judge Jones may agree upon. * * *
{¶ 3} On October 13, 2005, the respondent entered an order which rejected the relators' written agreement to submit the pending medical malpractice action to a voluntarily retired judge. The respondent's order of October 13, 2005, provided that:
The proposed agreement for referral to a private judge does not comply with section
{¶ 4} On October 20, 2005, the relators filed a "verified complaint for a writ of mandamus" as well as a "motion for alternative writ with request for expedited disposition." On October 25, 2005, this court granted the relators' "motion for an alternative writ with request for expedited disposition" which prohibited the respondent "from proceeding to trial or exercising any other jurisdiction in the underlying action ofAustin v. Metrohealth Medical Center, Cuyahoga County Court of Common Pleas Case No. CV-538701." In addition, a briefing schedule was set for the parties. On October 25, 2005, the respondent filed a motion to dismiss the verified complaint for a writ of mandamus. On November 3, 2005, the relators filed a brief in opposition to the respondent's motion to dismiss. For the following reasons, we grant the respondent's motion to dismiss the verified complaint for a writ of mandamus.
{¶ 5} In order for this court to issue a writ of mandamus, the relators must demonstrate each prong of the following three-part test: (1) the relators possess a clear legal right to the requested relief; (2) the respondent possesses a clear legal duty to perform the requested relief; and (3) there exists no adequate remedy at law. State ex rel. Neyv. Niehaus (1987),
{¶ 6} In the case sub judice, the relators argue that pursuant to R.C.
{¶ 7} R.C.
"In construing a statue, a court's paramount concern is the legislative intent in enacting the statute. * * * In determining legislative intent, the court first looks to the language in the statute and the purpose to be accomplished." State v. S.R. (1992),
State ex rel. Carter v. Wilkinson, Dir.,
{¶ 8} A plain and ordinary reading of R.C.
(1) Any voluntarily retired judge, * * * may register * * * for the purpose of receiving referrals for adjudication of civil actions orproceedings, and submissions for determination of specific issues or questions of fact or law in any civil action or proceeding, pending in the court. See R.C.
(2) The parties * * * may choose to have the action or proceeding inits entirety referred for adjudication, or to have any specific issue or question of fact or law in the action or proceeding submitted for determination, to a judge of their choosing * * *. See R.C.
(3) That the action or proceeding in its entirety is to be referredto, and is to be tried, determined, and adjudicated by that retiredjudge; . . . See R.C.
(4) Indicates that the issue or question is to be submitted, and is tobe tried and determined by that retired judge. See R.C.
(5) A retired judge to whom a referral is made under this section shalltry all of the issues in the action or proceeding, shall prepare relevantfindings of fact and conclusions of law, and shall enter a judgment inthe action or proceeding in the same manner as if he were an active judgeof the court. A retired judge to whom a submission is made under this section shall try the specific issue or question submitted, shall prepare relevant findings of fact or conclusions of law, shall make a determination on the issue or question submitted, and shall file the findings, conclusions, and determination with the clerk of the court in which the action or proceeding is pending. Any judgment entered, and any finding of fact, conclusion of law, or determination of an issue or question made, by a retired judge in accordance with this section shall have the same force and effect as if it had been entered or made by an active judge of the court, and any appeal from the judgment, finding, conclusion, or determination shall be made as if the judgment had been entered, or the finding, conclusion, or determination had been made, by an active judge of the court. See R.C.
(6) Upon the consent of all parties to a civil action or proceeding pending in any court of common pleas, municipal court, or county court, the parties shall notify the court of their agreement to have the actionor proceeding referred for adjudication or have any specific issues or questions of fact or law in the action or proceeding submitted for determination to a retired judge of their choosing who is eligible to accept referrals or submissions. See Gov.Jud.R. VI, § 2(A);
(7) Within a reasonable time after accepting the referral or submission, the judge shall schedule a pretrial conference. An order shall be filed with the clerk of courts that includes all of the following: 1) The issues to be decided by the judge; * * * 4) A trialdate or, if the case is to be submitted to the judge on documentaryevidence alone, a date for submission; * * *. See Gov.Jud.R. VI, § 3(B);
(8) At the conclusion of the trial or after submission on documentary evidence, the judge may direct the parties to file post-trial memoranda.The judge shall decide the case promptly. See Gov.Jud.R. VI § 3(C); and
(9) The decision of the judge shall be in writing and contain separatefindings of fact and conclusions of law. The judge shall file a copy of the decision and a judgment entry with the clerk of courts and direct the clerk to serve copies of the decision and judgment entry on all the parties. See Gov.Jud.R. VI, § 3(D). (Emphasis added).
{¶ 9} It must also be noted that Form 3 and Form 4, which are a part of the Supreme Court Rules for the Government of the Judiciary, provide that the voluntarily retired judge shall hear and determine all issues of law and fact which arise in the case, and render a judgment adjudicating the action or proceeding in its entirety.
{¶ 10} Based upon the language contained within R.C.
{¶ 11} Accordingly, we grant the respondent's motion to dismiss. Costs to the relators. It is further ordered that the alternative writ of mandamus, which prohibited the respondent from proceeding to trial or exercising any other jurisdiction in Austin v. Metrohealth MedicalCenter, Cuyahoga County Court of Common Pleas Case No. CV-538701, shall remain in full force and effect for a period of sixty (60) days from the date of the entry. At the conclusion of the aforesaid sixty (60) day period, the alterative writ of mandamus is ordered dissolved and vacated. Clerk of the Eighth District Court of Appeals is ordered to serve a copy of this judgment upon all parties as required by Civ.R. 58(B).
Complaint dismissed.
Gallagher, J., Concurs Separately Rocco, J., Concurs
Concurrence Opinion
{¶ 12} I concur in judgment with the majority opinion. I write separately to address the lack of clarity in the original legislation which, in my view, gives rise to this dispute.
{¶ 13} The majority opinion outlines the fact that the R.C.
{¶ 14} R.C.
"(B)(1) The parties to any civil action or proceeding pending in anycourt of common pleas, municipal court, or county court unanimously maychoose to have the action or proceeding in its entirety referred foradjudication, or to have any specific issue or question of fact or law inthe action or proceeding submitted for determination, to a judge of theirchoosing * * *."
(Emphasis added.)
{¶ 15} Further, R.C.
"Upon the entry of an order of referral or submission in accordancewith division (B)(2) of this section, the retired judge to whom thereferral or submission is made, relative to the action or proceedingreferred or the issue or question submitted, shall have all of thepowers, duties, and authority of an active judge of the court in which theaction or proceeding is pending."
(Emphasis added.)
{¶ 16} R.C.
{¶ 17} R.C.
"A retired judge to whom a referral is made under this section shalltry all of the issues in the action or proceeding, shall prepare relevantfindings of fact and conclusions of law, and shall enter a judgment inthe action or proceeding in the same manner as if he were an active judgeof the court. A retired judge to whom a submission is made under thissection shall try the specific issue or question submitted, shall preparerelevant findings of fact or conclusions of law, shall make adetermination on the issue or question submitted, and shall file thefindings, conclusions, and determination with the clerk of the court inwhich the action or proceeding is pending. Any judgment entered, and anyfinding of fact, conclusion of law, or determination of an issue orquestion made, by a retired judge in accordance with this section shallhave the same force and effect as if it had been entered or made by anactive judge of the court, and any appeal from the judgment, finding,conclusion, or determination shall be made as if the judgment had beenentered, or the finding, conclusion, or determination had been made, byan active judge of the court."
{¶ 18} The need for judicial interpretation of statutes could easily be limited if drafters avoid the use of all-inclusive terms like "all powers" or "entirety" in statutory construction, where other portions of the statute list or outline the expressed specific powers. R.C. 2701.10(D)is unfortunately a limiting section, in that it delineates those powers the Ohio legislature intended to convey, and fails to outline the use of jurors by retired judges.
