IN THE SUPREME COURT OF OHIO. HIGHLAND LOCAL SCHOOLS ) Case No BOARD OF EDUCATION, Original Action in Mandamus and Relator,

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1 IN THE SUPREME COURT OF OHIO HIGHLAND LOCAL SCHOOLS ) Case No BOARD OF EDUCATION, Original Action in Mandamus and Relator, Prohibition Arising From Cuyahoga County Common Pleas vs. Court Case No JUDGE NANCY MARGARET RUSSO, Respondent. RESPONDENT'S MOTION TO DISMISS WILLIAM D. MASON, Prosecuting Attorney of Cuyahoga County, Ohio CHARLES E. HANNAN * ( ) Assistant Prosecuting Attorney * Counsel ofrecord The Justice Center, Courts Tower, 8"' Floor 1200 Ontario Street Cleveland, Ohio Tel: (216) /Fax: (216) P4CEH&cuvahogacounty.us COUNSEL FOR RESPONDENT JUDGE NANCY MARGARET RUSSO APR SUPR nt 0 F0HIO

2 IN THE SUPREME COURT OF OHIO HIGHLAND LOCAL SCHOOLS BOARD OF EDUCATION, vs. Relator, JUDGE NANCY MARGARET RUSSO, Respondent. Case No Original Action in Mandamus and Prohibition Arising From Cuyahoga County Common Pleas Court Case No RESPONDENT'S MOTION TO DISMISS Pursuant to S.Ct.Prac.R. X, Section 5, respondent Judge Nancy Margaret Russo ("respondent") respectfully moves this Court to dismiss the Emergency Complaint for a Writ of Mandamus and Prohibition and this cause. The grounds in support of this motion are that the complaint fails to state a claim upon which relief can be granted. A memorandum in support of this motion is attached hereto and incorporated herein. Respectfully submitted, WILLIAM D. MASON, Prosecuting Attorney of Cuyahoga County, Ohio By: CHARLES E. HANNAN * ( ) Assistant Prosecuting Attorney * Counsel of Record The Justice Center, Courts Tower, 8"' Floor 1200 Ontario Street Cleveland, Ohio Tel: (216) /Fax: (216) P4CEH(a),cuyahogacounty.us COUNSEL FOR RESPONDENT JUDGE NANCY MARGARET RUSSO

3 IN THE SUPREME COURT OF OHIO HIGHLAND LOCAL SCHOOLS ) Case No BOARD OF EDUCATION, ) ) Original Action in Mandamus and Relator, ) Prohibition Arising From ) Cuyahoga County Common Pleas vs. ) Court Case No ) JUDGE NANCY MARGARET RUSSO, ) MEMORANDUM IN SUPPORT OF ) RESPONDENT'S MOTION TO Respondent. ) DISMISS ) STATEMENT OF FACTS AND PROCEEDINGS Relator Highland Local Schools Board of Education ("relator") is a defendant in the underlying Common Pleas case styled, Helen Doyle, Individually and as Guardian, etc. vs. Medical Mutual of Ohio, et al., Cuyahoga County Common Pleas Court Case No Trial in that case is scheduled to begin on Monday, April 16, On Thursday, April 12, 2007, however, relator filed this original action in mandamus and prohibition against respondent Judge Nancy Margaret Russo ("respondent"). Relator's claim in mandamus improperly seeks an intrastate transfer of the case from Cuyahoga County to either Morrow County or Richland County. Relator's claim in prohibition improperly seeks to prevent that trial from going forward on April 16, Because relator's action is utterly without merit, respondent respectfully urges this Court to dismiss the Complaint and this cause pursuant to S.Ct.Prac.R. X, Section 5. The facts relevant to this action are that plaintiffs filed the underlying civil action in the Cuyahoga County Common Pleas Court against defendants Medical Mutual of Ohio; Ohio Ski Slopes hic.; and relator Highland Local Schools Board of Education. See "Emergency Complaint for a Writ of Mandamus and Prohibition and request for Expedited Consideration" 1

4 (hereafter "Complaint") at para. 4. The case was assigned to the docket of respondent Judge Russo. According to relator's Complaint, "Plaintiffs' position was that Medical Mutual's principal place of business was Cuyahoga County." See Complaint at para. 7. Indeed, relator's Complaint concedes that "Medical Mutual has an apparent principal place of business in Cuyahoga County," id., though relator says that Medical Mutual assigned its rights to Primax Recoveries, Inc., an Illinois corporation, and disputed venue. Id. Nevertheless, defendants Ohio Ski Slopes Inc. and relator Highland Local Schools Board of Education (but not defendant Medical Mutual or Primax) filed a joint motion for transfer of venue on August 14, See Complaint at para. 6. Respondent Judge Russo denied that motion on August 25, See Complaint at para. 7. Relator alleges that respondent denied relator leave to file a motion for summary judgment. See Complaint at para. 5. Trial for the case is scheduled to begin on April 16, See Complaint at paras. 1, 13. Relator's counsel says that he leamed in early Apri12007 that the plaintiffs had or were about to dismiss their claims against defendants Medical Mutual/Primax and Ohio Ski Slopes Inc., leaving relator as the only remaining defendant in the case. See Complaint at paras On Apri19, 2007, relator filed a motion to disnuss or, in the alternative, renewed motion for transfer of venue requesting that this case be dismissed or transferred to Morrow or Richland County. See Complaint at paras Respondent informed relator's counsel on April 9, 2007 that both motions were overruled and that the case was proceeding to trial as scheduled on April 16, On April 12, 2007, relator filed this original action in mandamus and prohibition. 2

5 For the reasons discussed hereafter, respondent respectfully submits that relator's claims in mandamus and prohibition fail as a matter of law such that the Complaint and this cause should be dismissed pursuant to S.Ct.Prac.R. X, Section 5. ARGUMENT AND LAW 1. RELATOR'S COMPLAINT IN MANDAMUS FAILS AS A MATTER OF LAW. Relator's claim in mandamus fails as a matter of law because there is no clear legal right or clear legal duty to order an intrastate venue transfer from Cuyahoga County to either Morrow or Richland County and appeal following judgment is an adequate remedy at law in any event. Because relator's claim in mandamus fails as a matter of law, the claim should be dismissed pursuant to S.Ct.Prac.R. X, Section 5. To obtain a writ of mandamus, the relator must show that (1) relator has a clear legal right to have Judge Russo transfer the case from Cuyahoga County to either Morrow or Richland County; (2) Judge Russo was under a clear legal duty to transfer the case from Cuyahoga County to either Morrow or Richland County; (3) relator has no plain and adequate remedy in the ordinary course of the law. See State ex rel. MetroHealth Medical Center v. Sutula, 110 Ohio St.3d 201, 2006-Ohio-4249, 852 N.E.2d 722, at 8; State ex rel. Union Cty. Veterans Service Comm. v. Parrott, 108 Ohio St.3d 302, 2006-Ohio-92, 843 N.E.2d 750, at 8. For the reasons that follow, however, relator's claim in mandamus failed as a matter of law. First, relator's Complaint confirms that relator cannot establish either any clear legal right or clear legal duty to transfer the case from Cuyahoga County to either Morrow or Richland County. Ohio Civil Rule 3(B) provides as follows, in relevant part: Any action may be venued, commenced, and decided in any court in any county. *** Proper venue lies in any one or more of the following counties: *** 3

6 (2) The county in which the defendant has his or her principal place of business *x* Ohio Civil Rule 3(E) further provides: In any action, brought by one or more plaintiffs against one or more defendant involving one or more claims for relief, the forum shall be deemed a proper forum, and venue in the forum shall be proper, if the venue is proper as to any one party other than a nominal party, or as to any one claim for relief. Neither the dismissal of any claim nor of any party except an indispensable party shall affect the jurisdiction of the court over the remaining parties. In this case, relator's Complaint concedes that the plaintiffs below alleged that the principal place of business for defendant Medical Mutual of Ohio was Cuyahoga County. See Complaint at para. 7. hideed, relator concedes that "Medical Mutual has an apparent principal place of business in Cuyahoga County." Id. Thus venue in Cuyahoga County was proper as to defendant Medical Mutual of Ohio pursuant to Ohio Civil Rule 3(B)(2). Because Cuyahoga County was a proper venue as to that defendant, it was likewise proper as to the other defendants pursuant to Ohio Civil Rule 3(E). And under Ohio Civil Rule 3(E), any subsequent dismissal of defendant Medical Mutual of Ohio would not "affect the jurisdiction of the court over the remaining parties." Because venue was proper in Cuyahoga County, there was no basis for an intrastate transfer to another county as demanded by relator. Ohio Civil Rule 3(C) provides as follows, in relevant part: (1) When an action has been commenced in a county other than stated to be proper in division (B) of this rule, upon timely assertion of the defense of improper venue as provided in Civ.R. 12, the court shall transfer the action to a county stated to be proper in division (B) of this rule. (Emphasis added.) 4

7 But this provision applies only when an action has not been commenced in a proper venue under Civil Rule 3(B). Because venue in Cuyahoga County was proper under Civil Rule 3(B)(2), Civil Rule 3(C)(1) is inapplicable as a matter of law. Nor does Ohio law permit the intrastate venue transfer demanded by relator here. Ohio Civil Rule 3(C)(4) provides: Upon motion of any party or upon its own motion the court may transfer any action to an adjoining county within this state when it appears that a fair and impartial trial cannot be had in the county in which the suit is pending. In State ex rel. Smith v. Cuyahoga County Court of Common Pleas, 106 Ohio St.3d 151, 2005-Ohio-4103, 832 N.E.2d 1206, the Supreme Court of Ohio confinned that Ohio law does not permit intrastate transfers from one Ohio county to another. Id. at 15. The court stated: Civ.R. 3, governing venue, recognizes that transfer of a case from one proper venue to another proper venue within the state for means of convenience is unnecessary in a geographically small state such as Ohio, and that any inconvenience to witnesses in such a situation could be remedies by the use of depositions. Id. (emphasis in original). And in tenns that are readily applicable here, the court said: The uncontroverted evidence establishes that Smith's medical-malpractice case was properly venued in Cuyahoga County because Cleveland Clinic's principal place of business is located there. Civ.R. 3(B)(2). And because the Cleveland Clinic raised no issue and introduced no evidence that it would be unable to receive a fair trial in Cuyahoga County, the Cuyahoga County court erred in transferring the medical-malpractice case to Wayne County. Even if the Cleveland Clinic had introduced such evidence, the Cuyahoga County court still erred in transferring the case because Wayne County does not adjoin Cuyahoga County. See Civ.R. 3(C)(4) ("Upon motion of any party or upon its own motion the court may transfer any action to an adjoining county within this state when it appears that a fair and impartial trial cannot be had in the county in which the suit is pending.") Id. at 16 (emphasis in original). Likewise here, the plaintiffs' case was properly venued in Cuyahoga County under Civ.R. 3(B)(2) because defendant Medical Mutual's principal place of business was alleged to be 5

8 located there, regardless of whether the case alternatively could have been filed in some other Ohio venue. As noted previously, any subsequent dismissal of defendant Medical Mutual did not affect venue in Cuyahoga County under Civ.R. 3(E). Notwithstanding relator's assertion that Cuyahoga County is an inconvenient venue for witnesses, see Complaint at para. 12, State ex rel. Smith v. Cuyahoga County Court of Common Pleas establishes that this properly venued case cannot be transferred intrastate as a convenience. Relator has not alleged much less shown that a fair and impartial trial cannot be had in Cuyahoga County, so there are no grounds for transfer under Civ.R. 3(C)(4). And because neither Morrow or Richland Counties are adjoining counties to Cuyahoga County, there is no basis whatsoever for the writ of mandamus demanded by relator in this case. While relator's failure to show either a clear legal right or clear legal duty for an intrastate venue transfer is grounds alone to deny extraordinary relief in mandamus, relator's claim fails additionally and alternatively because relator fails to that it lacks an adequate remedy in the ordinary course of the law to contest the trial court's allegedly erroneous venue rulings. In State ex rel. Dannaher v. Crawford, 78 Ohio St.3d 391, 1997-Ohio-72, 678 N.E.2d 549, the Supreme Court of Ohio said: "Although an order changing venue does not constitute a final appealable order, it is reviewable after a final judgment is entered in the action." Id. at 395, 1997-Ohio-72, 678 N.E.2d 549. See, also, State ex rel. Lyons v. Zaleski, 75 Ohio St.3d 623, 625, 1996-Ohio-267, 665 N.E.2d 212. Consequently, "[e]xtraordinary relief in mandamus or prohibition generally does not lie to challenge a decision on a motion to change venue because appeal following a nal judgment provides an adequate legal remedy." State ex rel. Banc One Corp. v. Walker, 86 Ohio St.3d 169, 173, 1999-Ohio-151, 712 N.E.2d 742. See, also, State ex rel. Lyons v. Zaleski, supra, 75 Ohio 6

9 St.3d at 625, 1996-Ohio-267, 665 N.E.2d 212. In the instant case, relator's Complaint does not state any set of facts to establish that relator lacks an adequate remedy at law. Relator's Complaint confirms that the underlying case is proceeding in Cuyahoga County alone. Because there is no prospect of simultaneous multiple actions, appeal following final judgment is an adequate remedy at law. See State ex rel. Banc One Corp. v. Walker, 86 Ohio St.3d at 173, 1999-Ohio-151, 712 N.E.2d 742; State ex rel. Lyons v. Zaleski, 75 Ohio St.3d at 625, 1996-Ohio-267, 665 N.E.2d 212. Contrast State ex rel. Starner v. DeHoff (1985), 18 Ohio St.3d 163, 480 N.E.2d 449 (no adequate remedy because separate actions would have proceeded in Holmes and Stark county courts). Relator's reliance on State ex rel. Ohio State Racing Comm. v. Walton (1988), 37 Ohio St.3d 246, 525 N.E.2d 756, is misplaced. See relator's Memorandum in Support at pp In that case involving daily tax abatements for each racing day, the court held that the potential need to pursue a claim for a refund under R.C (B) as an additional remedy caused appeal alone to be an inadequate remedy under those circumstances. See 37 Ohio St.3d at 248, 525 N.E.2d 756. By contrast, there is no indication from relator's Complaint that any additional remedy would be necessary here even if there were a reversal on appeal. Because no additional remedy would be necessary, appeal is an adequate remedy at law that precludes extraordinary relief in mandamus. See State ex rel. Banc One Corp. v. Walker, 86 Ohio St.3d at 173, 1999-Ohio-151, 712 N.E.2d 742; State ex rel. Lyons v. Zaleski, 75 Ohio St.3d at , 1996-Ohio-267, 665 N.E.2d 212. Relator maintains that appeal is not adequate, complaining that it will have to try the case before it can take an appeal. See Complaint at para. 16. But the mere fact that there may be time 7

10 and expense incurred before an appeal to contest the venue rulings is taken does not make appeal an inadequate legal remedy. See State ex rel. Banc One Corp. v. Walker, 86 Ohio St.3d at , 1999-Ohio-151, 712 N.E.2d 742; State ex rel. Dannaher v. Crawford, 78 Ohio St.3d at , 1997-Ohio-72, 678 N.E.2d 549. "The fact that postjudgment appeal may be timeconsuming and expensive does not render appeal inadequate so as to justify extraordinary relief." Fraiberg v. Cuyahoga Cty. Court of Common Pleas, Domestic Relations Div. (1996), 76 Ohio St.3d 374, 379, 667 N.E.2d In short, relator's Complaint utterly fails to establish grounds for extraordinary relief in mandamus. Accordingly, relator's claim and this cause should be dismissed pursuant to S.Ct.Prac.R. X, Section 5. II. RELATOR'S COMPLAINT IN PROHIBITION FAILS AS A MATTER OF LAW. Relator's claim in prohibition likewise fails as a matter of law. Relator's Complaint utterly fails to establish any unauthorized exercise of judicial power or the lack of any adequate remedy at law. Because respondent does not patently and unambiguously lack jurisdiction to conduct judicial proceedings, relator's claim in prohibition and this cause should be dismissed pursuant to S.Ct.Prac.R. X, Section 5. It will be recalled that an action in prohibition tests only the jurisdiction of the lower court. See State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 2001-Ohio-15, 740 N.E.2d 265; State ex rel. Staton v. Common Pleas Court (1965), 5 Ohio St.2d 17, 21, 213 N.E.2d 164. "Jurisdiction" means the court's constitutional or statutory power to adjudicate a case and encompasses jurisdiction over the subject matter, the person, and the particular case. See Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, at

11 To obtain a writ of prohibition, the relator must show that (1) the court against whom the writ was sought was exercising or about to exercise judicial or quasi-judicial power; (2) the exercise of that power was unauthorized by law; and (3) denial of the writ would cause injury for which no other adequate remedy exists in the ordinary course of the law. See State ex rel. The Illuminating Co. v. Cuyahoga Cty. Court of Common Pleas, 97 Ohio St.3d 69, 2002-Ohio-5312, 776 N.E.2d 92,114. Absent a patent and unambiguous lack ofjurisdiction, however, a court of general jurisdiction can generally determine its own jurisdiction and a party challenging that jurisdiction has an adequate remedy by appeal. State ex rel. Nalls v. Russo, 96 Ohio St.3d 410, 2002-Ohio- 4907, 775 N.E.2d 522, at 18. "Prohibition will not issue as a substitute for appeal to review mere errors in judgment." Id. at 28. Thus "[a]ppeal, not prohibition, is the remedy for the correction of errors or irregularities of a court having proper jurisdiction." Smith v. Warren, 89 Ohio St.3d 467, 468, 2000-Ohio-223, 732 N.E.2d 992. Under such circumstances, the Supreme Court of Ohio need not expressly determine the underlying jurisdictional issue, for its review "is limited to whether jurisdiction is patently and unambiguously lacking." State ex rel. Shimko v. McMonagle, 92 Ohio St.3d 426, 431, Ohio-301, 751 N.E.2d 472 (emphasis in original; citations and intemal punctuation omitted). In the case at bar, relator cannot dispute that respondent Judge Russo has the basic statutory jurisdiction to hear the underlying tort lawsuit. See R.C Nor has relator shown that any exercise of judicial power is unauthorized by law. While relator again contests the trial court's venue rulings, the preceding discussion shows that the trial court's decision to retain the underlying case and not transfer venue from Cuyahoga to Morrow or Richland County 9

12 was correct and indeed mandated by this Court's decision in State ex rel. Smith v. Cuyahoga County Court of Common Pleas, 106 Ohio St.3d 151, 2005-Ohio-4103, 832 N.E.2d Moreover, Ohio Civil Rule 3(G) expressly declares that the venue provisions of Ohio Civil Rule 3 "are not jurisdictional." In State ex rel. Lyons v. Zaleski, 75 Ohio St.3d 623, Ohio-267, 665 N.E.2d 212, the court, citing Ohio Civil Rule 3(G), noted that Lyons's contention that Judge Zaleski failed to comply with Civil Rule 3 in transferring the underlying case to Sandusky County challenged venue and was not jurisdictional. See 75 Ohio St.3d at , 1996-Ohio-267, 665 N.E.2d 212. Thus relator's dispute over Judge Russo's venue ruling is ot a jurisdictional challenge in any case. Respondent Judge Russo is a court of general jurisdiction. Absent a patent and unambiguous lack of jurisdiction, respondent can determine her own jurisdiction and relator, even if it really were contesting that jurisdiction, has an adequate remedy by appeal. State ex rel. Nalls v. Russo, 96 Ohio St.3d 410, 2002-Ohio-4907, 775 N.E.2d 522, at 18. Relator assuredly has not shown that respondent is patently and unambiguously without jurisdiction to conduct these proceedings. And as was noted in the preceding discussion, appeal is plainly an adequate remedy in the ordinary course of the law in this case. Because relator has utterly failed to establish grounds for extraordinary relief in prohibition, its claim for extraordinary relief in prohibition and this cause should be dismissed pursuant to S.Ct.Prac.R. X, Section 5. 10

13 CONCLUSION For the reasons stated, respondent Judge Nancy Margaret Russo respectfully requests that this Court dismiss the Complaint in mandamus and prohibition and this cause pursuant to S.Ct.Prac.R. X, Section 5. Respectfully submitted, WILLIAM D. MASON, Prosecuting Attorney of Cuyahoga County, Ohio By: CHARLES E. HANNAN * ( ) Assistant Prosecuting Attorney * Counsel of Record The Justice Center, Courts Tower, 8th Floor 1200 Ontario Street Cleveland, Ohio Tel: (216) /Fax: (216) P4CEH@.cuyahogacounty.us COUNSEL FOR RESPONDENT JUDGE NANCY MARGARET RUSSO 11

14 PROOF OF SERVICE A true copy of the foregoing Respondent's Motion to Dismiss was served this ^^'3x! day of Apri12007, by regular U.S. Mail, postage prepaid, upon: Nicholas E. Subashi The Oakwood Building 2305 Far Hills Avenue Dayton, Ohio COUNSEL FOR RELATOR HIGHLAND LOCAL SCHOOLS BOARD OF EDUCATION CffARLES E. HANNAN * Assistant Prosecuting Attorney * Counsel of Record 12