State ex rel. LTV Steel Co. v. Gwin - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. LTV Steel Company v. Gwin, Judge, et al.
[Cite as State ex rel. LTV Steel Co. v. Gwin (1992),
Ohio St.3d .]
Writ of prohibition to prohibit court of appeals judges
from remanding case for a new trial -- Writ denied,
when.
(No. 91-401 -- Submitted April 27, 1992 -- Decided July
22, 1992.)
In Prohibition.
Relator, LTV Steel, is a self-insured employer for the
purpose of workers' compensation laws and the appellee in Stark
County Court of Appeals case No. CA-8171, the appeal of a jury
verdict denying Ruth Mulig's claim for death benefits. Relator
seeks a writ to prohibit respondents, Stark County Court of
Appeals Judges W. Scott Gwin, John R. Milligan, Jr., and Irene
Balogh Smart, from remanding case No. CA-8171 for a new trial.
Case No. CA-8171 came before respondents after the Ohio
Industrial Commission allowed Mulig's claim, and relator
appealed to the Stark County Court of Common Pleas pursuant to
R.C. 4123.519. A jury heard the matter pursuant to R.C.
4123.519(C) and determined that Mulig was not entitled to
benefits. Mulig appealed the verdict, and her appeal became
case No. CA-8171. The Administrator of the Bureau of Workers'
Compensation ("bureau") appealed the verdict separately,
however, and his appeal was assigned case No. CA-8173.
On July 6, 1990, relator moved the court of appeals to
dismiss case No. CA-8171 pursuant to App. R. 18(C) because
Mulig had not filed a brief. Mulig responded by filing two
motions -- one to join in the administrator's brief in case No.
CA-8173, the other to consolidate case Nos. CA-8171 and
CA-8173. Relator opposed the motion to consolidate, arguing
that Mulig could not assert the single assignment of error in
the administrator's brief, an attack on the admission of
evidence, because she had not objected to the admission of this
evidence at trial.
On July 16, 1990, Court of Appeals Judge Norman J. Putman
granted Mulig's motion to join in the administrator's brief.
However, on July 20, 1990, Judge Putman and respondent Judge
Milligan dismissed Mulig's appeal in case No. CA-8171 and also

overruled Mulig's motion to consolidate. Mulig did not appeal
the July 20 judgment or move the court, pursuant to App. R. 26,
to reconsider. Thus, relator maintains that the dismissal
became final thirty days later. See App.R. 4(A).
On December 24, 1990, however, respondents, in effect,
reconsidered case No. CA-8171 sua sponte in the course of
deciding the administrator's appeal in case No. CA-8173.
Respondents explained:
"Upon careful consideration of the record and the
chronology of the motions filed in these two separate appeals,
we find [that] our dismissal of * * * [Mulig's] appeal
(CA-8171) and overruling of the motion to consolidate were
improvident, and we therefore reinstate Case No. CA-8171 and
consolidate the same with Case No. CA-8173. See Board of
Commrs. of Mercer Co. v. Deitsch (1916), 94 Ohio St. 1, 4 [113
N.E.2d 745]; Porter, Exr. v. Lerch (1934), 129 Ohio St. 47
[58-59, 1 O.O. 356, 361, 193 N.E. 766, 771] (['] A court of
appeals has control over its judgments during the term in which
they are rendered.'). This result allows us to follow 'a basic
tenet of Ohio jurisprudence that cases should be determined on
their merits and not on mere procedural technicalities.' See
Barksdale v. Van's Auto Sales, Inc. (1988), 38 Ohio St.3d 127
[128, 527 N.E.2d 284, 285]; State v. Herzing (1985), 18 Ohio
St.3d 337 [18 OBR 379, 481 N.E.2d 593]." Mayfield v. LTV Steel
Co. (Dec. 24, 1990), Stark App. Nos. CA-8171 and CA-8173,
unreported, at 3.
Respondents then determined that the trial court had erred
by allowing the bureau's medical expert to be cross-examined on
the basis of an unauthenticated medical treatise and by
admitting the treatise into the record. As a result,
respondents reversed the trial court judgment denying Mulig's
benefits and remanded case Nos. CA-8173 and CA-8171 for a new
trial. Relator and respondents agree that Mulig is essential
to retrial.
Relator's request for reconsideration of the December 24
judgment was overruled. Relator then appealed to this court,
but its motions to certify the record were overruled. (1991),
60 Ohio St.3d 702, 573 N.E.2d 118. Relator also filed this
original action in which Patrick Mihm, the current
administrator of the bureau, seeks to intervene as a respondent.

Willacy & LoPresti, Aubrey B. Willacy and Lisa A. Reid,
for relator.
Lee I. Fisher, Attorney General, Patrick A. Devine and
Robert A. Zimmerman, for respondents.
Lee I. Fisher, Attorney General, and Merl H. Wayman, for
the Administrator of the Bureau of Workers' Compensation.

Per Curiam. The administrator moved to intervene
pursuant to Civ.R. 24(A)(2), which allows intervention as of
right when the applicant claims an interest that may be
impaired by the disposition of the action, and the interest is
not adequately protected by existing parties. We agree that
the administrator has an interest in protecting the State
Surplus Fund, from which relator will likely seek reimbursement
of benefits it has already paid if Mulig's claim is ultimately
denied. See R.C. 4123.519(G) and 4123.515. The administrator

also has an interest in defending against the argument that he
lacked standing in the underlying case, which relator asserts
as a reason for allowing a writ of prohibition. Thus,
consistent with our liberal constuction of Civ.R. 24(A)(2),
Ohio Dept. of Admin. Serv., Office of Collective Bargaining v.
State Emp. Relations Bd. (1990), 54 Ohio St.3d 48, 51, 562
N.E.2d 125, 128, we grant the motion to intervene.
The main question in this case, however, is whether
relator has satisfied the standard for issuing a writ of
prohibition, which usually requires an imminent exercise of
unauthorized judicial authority and the absence of an adequate
remedy in the ordinary course of law. State ex rel. Tollis v.
Cuyahoga Cty. Court of Appeals (1988), 40 Ohio St.3d 145, 147,
532 N.E.2d 727, 729 This question is before us on relator's
motion for summary judgment, and the answer depends on our
resolution of four issues: (1) Are respondents about to
exercise jurisdiction? (2) Does relator have an adequate
remedy at law? (3) Did respondents completely lack
jursidiction to reverse the common pleas judgment as to Mulig,
such that a writ of prohibition should issue notwithstanding
the availability of an adequate remedy? and (4) Should a writ
of prohibition issue based on relator's arguments that the
administrator lacked standing in the underlying case or that
res judicata required dismissal of the administrator's appeal?
For the following reasons, we resolve these issues in
respondents' favor and, there being no dispute as to any
material fact, conclude that relator is not entitled to
judgment as a matter of law. Accordingly, we overrule the
motion for summary judgment. Moreover, because this
disposition eliminates all justification for a writ of
prohibition, we further deny the writ.
Imminent Exercise of Jurisdiction
Respondents argue that they have already exercised
jurisdiction by reversing and remanding case Nos. CA-8171 and
CA-8173 and that nothing remains for us to prohibit. They cite
State ex rel. Stefanick v. Marietta Mun. Court (1970), 21 Ohio
St.2d 102, 104-105, 50 O.O.2d 265, 266, 255 N.E.2d 634, 635, in
which we said:
"Prohibition is a preventive writ rather than a corrective
remedy and is designed to prevent a tribunal from proceeding in
a matter which it is not authorized to hear and determine. * *
* It cannot be used to review the regularity of an act already
performed. * * *" (Citations omitted.)
Stefanick states the rule generally applicable in
prohibition actions. However, relator argues that respondents
were completely without jurisdiction to act and, in such
situations, we have authority "not only to prevent excesses of
lower tribunals," but also "to correct the results thereof."
State ex rel. Adams v. Gusweiler (1972), 30 Ohio St.2d 326,
330, 59 O.O.2d 387, 389, 285 N.E.2d 22, 24. Accordingly, we
continue our review even though respondents have already
exercised the jursidiction relator challenges.
Adequate Remedy
Ordinarily, a writ of prohibition will not be granted
where an adequate remedy in the ordinary course of law is
available. State ex rel. Gilla v. Fellerhoff (1975), 44 Ohio
St.2d 86, 73 O.O.2d 328, 338 N.E.2d 522 (prohibition complaint

dismissed because relator could appeal the judgment of the
court whose jurisdiction he attacked).
Relator asserts that it has no adequate remedy because we
overruled its motions to certify the record in case Nos.
CA-8171 and CA-8173. Relator overlooks that, like the
availablity of an appeal as of right, the availability of an
appeal by leave of court also constitutes an adequate remedy
and will prevent the issuance of extraordinary relief. See,
e.g., State ex rel. Cleveland v. Calandra (1980), 62 Ohio St.2d
121, 16 O.O.3d 143, 403 N.E.2d 989; State ex rel. Zoller v.
Talbert (1980), 62 Ohio St.2d 329, 16 O.O.3d 391, 405 N.E.2d
724; State ex rel. Leis v. Outcalt (1980), 62 Ohio St.2d 331,
16 O.O.3d 392, 405 N.E.2d 725; State ex rel. Corrigan v.
Griffin (1984), 14 Ohio St.3d 26, 14 OBR 328, 470 N.E.2d 894
(writs of mandamus denied because prosecuting attorney had
appeal by leave of court under R.C. 2945.67); contra, State ex
rel. Corrigan v. McAllister (1985), 18 Ohio St.3d 239, 240, 18
OBR 296, 297, 480 N.E.2d 783, 785.
In the past, our holdings have implied that such
discretionary appeals cease to be adequate once denied. See,
e.g., Calandra, supra, 62 Ohio St.2d at 122-123, 16 O.O.3d at
144, 403 N.E.2d at 990. We now reject this implication because
allowing appellants, after denial of such leave, to reinstitute
their appeals as extraordinary actions would, in effect, permit
a second appeal. We have routinely held that extraordinary
writs may not be used as a substitute for an otherwise barred
second appeal or to gain successive appellate reviews of the
same issue. State ex rel. Bargar v. Ross (1978), 53 Ohio St.2d
18, 7 O.O.3d 62, 371 N.E.2d 841 (mandamus); State ex rel.
Zakany v. Avellone (1979), 58 Ohio St.2d 25, 12 O.O.3d 14, 387
N.E.2d 1373; State ex rel. Celebrezze v. Butler Cty. Common
Pleas Court (1979), 60 Ohio St.2d 188, 14 O.O.3d 441, 398
N.E.2d 777; and Stefanick, supra (prohibition is not a
substitute for an appeal). Accordingly, we hold that relator
had an adequate remedy by way of its discretionary appeals to
this court, notwithstanding that relator's motions to certify
the record were overruled.
Lack of Judicial Authority
A writ of prohibition may issue, however, even if relator
had an adequate remedy by way of a discretionary appeal. The
availability of an adequate remedy becomes immaterial when an
inferior court has no jurisdiction whatsoever to act. State ex
rel. Easterday v. Zieba (1991), 58 Ohio St.3d 251, 569 N.E.2d
1028; Dept. of Adm. Serv., Office of Collective Bargaining,
supra; State. ex rel. Conner v. McGough (1989), 46 Ohio St.3d
188, 546 N.E.2d 407; State ex rel. Largent v. Fisher (1989), 43
Ohio St.3d 160, 540 N.E.2d 239; Adams, supra. Relator
maintains that respondents had no jurisdiction whatsoever to
reconsider case No. CA-8171 sua sponte because that judgment
became final when Mulig did not appeal.
Courts of appeal have jurisdiction to reconsider their
judgments on a timely motion filed pursuant to App.R. 26 until
an appeal as of right is filed in this court, or this court
rules on a motion to certify the record. See State v. Murphy
(1990), 49 Ohio St.3d 293, 551 N.E.2d 1292, and Cincinnati v.
Alcorn (1930), 122 Ohio St. 294, 171 N.E.2d 330 (Supreme Court
and court of appeals have concurrent jurisdiction over an

appealed judgment prior to attachment of Supreme Court's
exclusive jurisdiction). Moreover, by virtue of the
jurisdiction conferred by Section 3(B), Article IV, Ohio
Constitution, courts of appeals also have inherent authority,
in the furtherance of justice, to reconsider their judgments
sua sponte. Tuck v. Chapple (1926), 114 Ohio St. 155, 151 N.E.
48.
Tuck implies that this inherent authority exists forever.
However, Tuck does not mention Section 3(B)(3), Article IV,
Ohio Constitution, which provides that appellate judgments are
final unless appealed as of right or by a request for this
court's discretionary review pursuant to Section 2(B)(2),
Article IV, Ohio Constitution. The effect of this deadline is
clear -- if no such appeal is filed, the judgment is binding
and no longer subject to the court of appeals' jurisdiction to
reconsider. See Wigton v. Lavender (1984), 9 Ohio St.3d 40,
43, 9 OBR 129, 132, 457 N.E.2d 1172, 1175 ("an unappealed
judgment is final and the prevailing party may fully rely on
it").
Respondents cite Bd. of Commrs. of Mercer Cty. v. Deitsch
(1916), 94 Ohio St. 1, 4, 113 N.E. 745, and Porter v. Lerch
(1934), 129 Ohio 47, 58-59, 1 O.O. 356, 361, 193 N.E. 766, 771,
which state the principle that courts of appeals control their
judgments during the term in which they are rendered. The
"control" exercised in those cases, however, was to modify the
date of a judgment entry, not to reverse a prior entry of
dismissal. Respondents provide no precedent that establishes a
court of appeals' jurisdiction to reconsider a judgment after
the deadline in Section 3(B)(3), Article IV, Ohio Constitution.
Thus, relator is correct that respondents had no
jurisdiction to reconsider the judgment in case No. CA-8171 sua
sponte more than five months after the judgment was entered.
This does not mean, however, that respondents had no authority
whatsoever to issue the ruling they did in case No. CA-8173,
the administrator's appeal. In Wigton, supra, at syllabus, we
adopted the rule that:
"Where one party appeals from a judgment, a reversal as to
him will not justify a reversal against other nonappealing
parties unless the respective rights of the appealing party and
non-appealing parties are so interwoven or dependent on each
other as to require a reversal of the whole judgment."
(Emphasis added.)
Wigton recognized that the interests of two parties may be
so inseparable that if one party prevails on appeal and the
other party does not appeal at all, the appealing party could
be denied the fruits of its success unless relief is extended
to the non-appealing party. In particular, we approved in
Wigton of "permit[ting] the benefits of an appeal to inure to a
non-appealing party where a proper disposition of the case on
another trial is dependent on the further presence in the case
of the non-appealing part[y]." Id., 9 Ohio St.3d at 42, 9 OBR
at 131-132, 457 N.E.2d at 1175. Thus, Wigton acknowledged a
court of appeals' power to protect a prevailing appellant's
interests by providing a windfall to a nonappealing coparty, as
opposed to the defeated appellee.
Neither relator nor respondents cite Wigton, but it
applies here because the interests of Mulig and the

administrator are inseparable. As mentioned, the parties agree
that Mulig's participation is required for the administrator to
prove on retrial that she is entitled to benefits. If the
administrator fails in this regard, relator can claim
reimbursement from the State Surplus Fund. Thus, the
administrator will lose if Mulig doesn't win on retrial.
Moreover, because a court of appeals has authority to extend
its ruling to a party who does nothing to invoke its
jurisdiction, the court must also have authority to reach a
party whose appeal was dismissed on procedural grounds.
Thus, under Wigton, respondents had no need to reconsider
and reinstate case No. CA-8171 -- they already possessed the
power to make Mulig a beneficiary of the judgment in case No.
CA-8173, even though her appeal was not technically before the
court. Accordingly, we hold that while respondents had no
jurisdiction to reconsider the dismissal in case No. CA-8171,
they nevertheless had authority to include Mulig in the
reversal and remand of case No. CA-8173. The rule represented
by Easterday, supra, and cases preceding it, therefore, does
not apply, and the adequate remedy available to relator by way
of discretionary appeal is a sufficient basis for denying the
writ of prohibition.
Other Grounds for Issuing the Writ
Relator's last three arguments are (1) that the
administrator was not aggrieved by the common pleas judgment
denying Mulig benefits and, therefore, had no standing to
appeal, (2) that the administrator was not the real party in
interest before the common pleas court and, therefore, had no
standing to participate at trial as a coparty, and (3) that the
administrator and Mulig are in privity such that the dismissal
of case No. CA-8171 was binding on the administator and
required respondents to dismiss case No. CA-8173. These
arguments raise issues of standing and res judicata, which are
appealable as error; they do not attack respondents' appellate
jurisdiction. Thus, the adequate remedy available to relator
via discretionary appeal to this court also defeats these
arguments for issuing the writ of prohibition.
Accordingly, we hold that respondents had no jurisdiction
to reconsider case No. CA-8171 sua sponte, but that respondents
nevertheless had authority to issue the decision they did in
case No. CA-8173 and that relator had an adequate remedy in the
ordinary course of law. Thus, relator has failed to satisfy
the standard for issuing a writ of prohibition and is not
entitled to judgment as a matter of law. The motion for
summary judgment is, therefore, overruled, and there being no
other valid reason for granting a writ of prohibition, the writ
is denied.
Judgment accordingly.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown
and Resnick, JJ., concur.