[Cite as State ex rel. Gallagher v. Collier-Williams, 2022-Ohio-1177.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, EX REL., WILLIAM J. GALLAGHER, :
Relator, : No. 111229 v. :
JUDGE CASSANDRA COLLIER-WILLIAMS, :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: COMPLAINT DISMISSED DATED: April 4, 2022
Writ of Mandamus and/or Prohibition Motion No. 552663 Order No. 553300
Appearances:
Brian J. Halligan, for relator.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Matthew D. Greenwell, Assistant Prosecuting Attorney, for respondent.
EILEEN T. GALLAGHER, P.J.:
Relator, William J. Gallagher (“Gallagher”), seeks writs of mandamus
and/or prohibition directing respondent, Judge Cassandra Collier-Williams, to vacate her order striking Gallagher’s jury demand in an underlying civil case,
Gallagher v. Cochran, Cuyahoga C.P. No. CV-18-908626. For the following
reasons, we grant respondent’s motion to dismiss, deny the requested writs, and
dismiss the complaint.
I. Background
On January 28, 2022, Gallagher filed a complaint for writs of
mandamus and/or prohibition asserting the following. He is the plaintiff in a civil
action pending before respondent. The action was the subject of a previous appeal
to this court after respondent granted summary judgment in favor of the defendants,
Edward W. Cochran (“Cochran”) and Cleveland Plating, L.L.C. (“Cleveland
Plating”), on all of Gallagher’s claims. This court reversed the grant of summary
judgment for two out of five claims and remanded the case back to respondent.
Williams v. Cochran, 8th Dist. Cuyahoga No. 109081, 2020-Ohio-4917. In the
instant complaint, Gallagher gave a detailed factual history of the dispute between
the parties in the underlying case. This will be summarized here, but a more detailed
factual summary can be found in the appellate decision cited above.
Gallagher was employed by Barker Products Company (“Barker”). The
company was experiencing financial difficulty, and Gallagher loaned Barker
approximately $400,000 over several years. Barker’s accountant informed the
ownership and management teams of a potential investor, Cochran. During
negotiations for the sale of the business, Gallagher claims certain representations
were made to him by Barker’s then-accountant and Cochran. The assets of Barker were eventually purchased at foreclosure sale by Cochran and another individual.
They formed a new company, Cleveland Plating, and began operating in Barker’s
former business premises. Gallagher claims that he was promised the ability to
recoup the money he advanced to Barker plus interest through an equity share in
the company or through employment. He received neither. Relevant to this action,
he sued Cochran and Cleveland Plating in the Cuyahoga County Common Pleas
Court at the end of 2018. Respondent is the judge presiding over that case.
In the underlying suit, Cochran alleged, among other things, that
Gallagher’s claims ran afoul of the statute of frauds. Summary judgment was
granted in Cochran’s favor on all five claims for relief raised by Gallagher. Gallagher
then appealed.
On appeal, this court analyzed the application of the statute of frauds to
Gallagher’s claims:
We will begin with a discussion of the statute of frauds and explain why material facts exist that lead us to the conclusion that the statute does not automatically grant Cochran victory.
R.C. 1335.05 contains Ohio’s Statute of Frauds. The statute provides, in relevant part:
No action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt, default, or miscarriage of another person * * * or upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized. Stated plainly, when applied to this case, Cochran cannot have promised to pay Barker Products’ debts to Gallagher unless Cochran or Cleveland Plating agreed to that in writing. Neither party suggests that Cochran did agree to assume Barker Products’ debts in writing. Cochran argues as a result that all of Gallagher’s claims against him fail. However, Gallagher’s claims allege not that Cochran agreed to pay him directly, but that Gallagher was promised an equity stake in the company or employment to reimburse him for his debts. As a result, the statute of frauds debt provision is not implicated.
Cochran also argues more specifically that Gallagher’s first claim fails under the statute because those claims cannot be completed in a year. We disagree.
In Gallagher’s first claim he alleges that Cochran promised him he would be repaid over time through employment and an equity share. It is possible for an equity sharehold to be given to a person or to reach the required value in less than a year, therefore the statute of frauds is not implicated. The question of employment requires slightly more analysis.
Gallagher was promised a lifetime contract by Dagley [a majority shareholder of Barker] to work at Barker Products. Cochran argues that Gallagher is asserting Cochran also offered him a lifetime contract, or at least that Cochran agreed to continue employing Gallagher on his lifetime contract. Cochran argues that this supposed oral contract would therefore be void under the statute of frauds. However, neither Gallagher’s complaint nor his affidavit imply that he is alleging Cochran offered him a lifetime position, merely that he offered him a position at Barker Products. Rather than decide whether a lifetime contract fails under the statute of frauds, we instead can say definitively that a period of employment can be completed within a year. The statute of frauds does not bar Gallagher’s claim for breach of contract.
We find that the statute of frauds does not bar any part of the complaint.
Gallagher, 8th Dist. Cuyahoga No. 109081, 2020-Ohio-4917, ¶ 34-40. This court
later observed in the opinion addressing Gallagher’s first claim for relief: “this claim
survives the statute of frauds because Gallagher is referring to a) a promise of employment and b) a promise of an equity shareholder position. Gallagher is not
referring to a strict repayment of another’s debt that would violate the statute.” Id.
at ¶ 47. Further, in denying Cochran’s motion for reconsideration, this court stated,
“According to Gallagher’s claim, Cochran is not obligated to do anything more than
grant him an equity share and employment.” Id., reconsideration denied (Nov. 13.
2020), Motion No. 541992.
After the reversal of summary judgment on two counts in Gallagher’s
complaint, Gallagher alleges that Cochran filed a motion to strike Gallagher’s jury
demand made in his complaint, which respondent granted on January 18, 2022. In
part, respondent held
The Court of Appeals found that the Statute of Frauds does not bar any part of the Plaintiff's Complaint. The Court based that conclusion on their determination that Plaintiff’s claims “allege not that Cochran agreed to pay him directly, but that Gallagher was promised an equity stake in the company or employment to reimburse him for his debts. As a result, the Statute of Frauds debt provision is not implicated.” Gallagher v. Cochran, 8th Dist. Cuyahoga No. 109081, 2020- Ohio4917, ¶ 36. Furthermore, the Court held that it “is possible for an equity sharehold to be given to a person or to reach the required value in less than a year”, as well as a “period of employment can be completed within a year.” Id. at ¶ 39. Therefore, the “Statute of Frauds does not bar any part of the complaint.” Id. at ¶ 40.
Gallagher, Cuyahoga C.P. CV-18-908626, order striking jury demand, 2 (Jan. 18,
2022).
The instant complaint for writs of mandamus and/or prohibition
followed. The complaint alleged that respondent’s decision was based on the
statute of frauds, which this court found did not apply to the claims and was contrary
to and ignored the mandate of this court announced in Gallagher recited above. In
accordance with a briefing schedule issued by this court, respondent filed a motion
to dismiss on February 28, 2022. There, she argued that Gallagher was not entitled
to a jury trial because he was left with claims sounding only in equity once the case
was remanded back from this court. Gallagher timely filed a brief in opposition.
II. Law and Analysis
Gallagher’s complaint and briefing argued that respondent has failed to
follow a mandate of a superior court and deprived him of his right to a jury trial.
A. Standards Applicable to this Action
Gallagher seeks a writ of mandamus. Mandamus may issue where
relators show, by clear and convincing evidence, that (1) they have a clear legal right
to the requested relief, (2) the respondent has a clear legal duty to provide the
requested relief, and (3) there is no other adequate remedy in the ordinary course of
the law. State ex rel. Fire Rock, Ltd. v. Ohio DOC, 163 Ohio St.3d 277, 2021-Ohio-
673, 169 N.E.3d 665, ¶ 5, citing State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55,
2012-Ohio-69, 960 N.E.2d 452, ¶ 6. “The writ of mandamus is not granted by right.
It is a high prerogative writ, and its issuance rests in the sound discretion of the
court.” Patton v. Springfield Bd. of Edn., 40 Ohio St.3d 14, 15, 531 N.E.2d 310
(1988). “A writ of prohibition can issue in a case where the trial court has
disregarded the mandate of a superior court in a prior appeal in the same case.”
State ex rel. Evans v. McGrath, 10th Dist. Franklin No. 16AP-238, 2016-Ohio-8348,
¶ 7, citing State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986,
915 N.E.2d 633. To be entitled to a writ of prohibition, a relator must show that “(1)
the respondent against whom it is sought is about to exercise judicial power, (2) the
exercise of such power is unauthorized by law, and (3) there is no adequate remedy
at law.” O’Donnell Constr. Co. v. Mannen, 8th Dist. Cuyahoga No. 88717, 2006-
Ohio-6601, ¶ 8, citing State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d
239 (1989). Where a respondent patently and unambiguously lacks jurisdiction, a
court does not consider whether the relator possesses an adequate remedy at law.
Id.
The complaint is before this court on respondent’s motion to dismiss
pursuant to Civ.R. 12(B)(6), failure to state a claim for which relief can be granted.
Under this standard, “[a] court can dismiss [an original] action * * * if, after all
factual allegations of the complaint are presumed true and all reasonable inferences
are made in the relator’s favor, it appears beyond doubt that he can prove no set of
facts entitling him to the requested writ * * *.” State ex rel. Russell v. Thornton, 111
Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 9.
B. Failure to Follow the Mandate of a Superior Court
When an inferior tribunal refuses to follow the mandate of superior
one, mandamus or prohibition may lie. “[I]n Ohio, it is recognized that a writ of mandamus is an appropriate remedy to require a lower court to comply with an
appellate court’s mandate directed to that court.” State ex rel. Heck v. Kessler, 72
Ohio St.3d 98, 100, 647 N.E.2d 792 (1995), citing State ex rel. Potain v. Mathews,
59 Ohio St.2d 29, 391 N.E.2d 343 (1979); State ex rel. Schneider v. Brewer, 155 Ohio
St. 203, 98 N.E.2d 2 (1951). See also State ex rel. Smith v. O'Connor, 71 Ohio St.3d
660, 662, 646 N.E.2d 1115 (1995) (stating that either mandamus or prohibition is an
appropriate remedy to prevent a court from deviating from a mandate of a superior
court.) Where this is at issue in an action, the general requirement that a relator
must lack an adequate remedy at law is not a bar to relief in mandamus because “[t]o
hold otherwise might lead to the result of a lower court perpetually refusing a
superior court’s mandate, necessitating repeated, ineffective appeals.” Id. at 102.
Further, mandamus may not be used to control judicial discretion, but a court “‘has
no discretion to disregard the mandate of a superior court in a proper appeal in the
same case.’” (Emphasis sic.) Id. at 102, quoting Nolan v. Nolan, 11 Ohio St.3d 1,
462 N.E.2d 410 (1984), syllabus. However, “the use of a writ of mandamus to
enforce an appellate court’s mandate is reserved for extreme cases of direct
disobedience.” State ex rel. Cowan v. Gallagher, 153 Ohio St.3d 13, 2018-Ohio-
1463, 100 N.E.3d 407, ¶ 12. A court does not consider the lack of an adequate
remedy at law when it is clear that a respondent is disregarding a mandate of a
superior court. This makes the analysis similar to prohibition because a court does
not have jurisdiction to disregard the mandate of a superior court for the purposes of both mandamus and prohibition. See generally State ex rel. Jelinek v. Schneider,
127 Ohio St.3d 332, 2010-Ohio-5986, 939 N.E.2d 847, ¶ 12.
It is not clear from the record in this case that respondent is
disregarding the mandate of this court as set forth in Gallagher, 8th Dist. Cuyahoga
No. 109081, 2020-Ohio-4917. This court, on summary judgment construing all
reasonable inference in favor of the nonmoving party, applied the statute of frauds
to Gallagher’s claims and determined that Gallagher was seeking (1) an equity
interest in a business or (2) employment at the same business. Id. at ¶ 37. When
Gallagher’s claims were viewed in this manner, this court found that the statute of
frauds did not necessarily prevent Gallagher from succeeding in the action or
prevent Gallagher from recovering on the two claims for relief that survived
summary judgment. Respondent read this court’s analysis as winnowing down
Gallagher’s possible forms of relief to those that do not run afoul of the statute of
frauds: employment at and an equity stake in Cleveland plating. Whether correct or
not, respondent has determined that these are claims that sound in equity for
specific performance.
Respondent’s interpretation of this court’s decision, as set forth above,
is consistent with how Gallagher’s claims were described by this court in Gallagher
when discussing the application of the statute of frauds. Respondent read this
court’s analysis and determined that the claims analyzed by this court in reference
to the statute of frauds seek specific performance — an equity interest in Cleveland
Plating and employment with Cleveland Plating sufficient to recoup Gallagher’s past loans. “‘[A]n action [for] specific performance is equitable in nature, so neither
party is entitled to a trial by jury.’” Hongosh v. Piszko, 8th Dist. Cuyahoga No.
45623, 1983 Ohio App. LEXIS 14504, 3-4 (May 19, 1983), quoting Pierce v.
Stewart, 61 Ohio St. 422, 56 N.E. 201 (1900), paragraph one of the syllabus.
This court’s mandate did not address the type of trial that should be
held on remand. The opinion in Gallagher remanded the matter for further
proceedings consistent with the opinion after finding there were genuine issues of
material fact. The Gallagher Court found that the statute of frauds did not bar these
claims. The types of recovery available to Gallagher were not addressed by this
court, and respondent’s interpretation, whether ultimately correct or not, is not so
far afield that this case represents the extraordinary situation where a respondent is
in direct disobedience of a superior court’s mandate. Respondent’s briefing has
demonstrated that she is not conclusively ignoring a mandate of this court, and
Gallagher’s complaint and briefing fail to demonstrate that she is. Therefore, we
find that respondent is not patently and unambiguously without jurisdiction to issue
the order as Gallagher has alleged.
Respondent’s decision also impacts important rights preserved by
rule, constitution, and statute in Ohio. Civ.R. 38(A) provides, “The right to trial by
jury shall be preserved to the parties inviolate.” See also Ohio Constitution, Article
I, Section 5. However, Civ.R. 39(A) goes on to state, in part, that “[t]he trial of all
issues so demanded shall be by jury, unless * * * the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not
exist.” R.C. 2311.04 also states,
Issues of law must be tried by the court, unless referred as provided in the Rules of Civil Procedure. Issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or unless all parties consent to a reference under the Rules of Civil Procedure.
All other issues of fact shall be tried by the court, subject to its power to order any issue to be tried by a jury, or referred.
In granting the motion to strike Gallagher’s jury demand, respondent
found that Gallagher’s claims sounded in equity. “‘Where a plaintiff seeks primarily
equitable relief with attendant and incidental money damages neither party is
entitled to a trial by jury.’” Tipp City v. Watson, 2d Dist. Miami No. 02CA43, 2003-
Ohio-4836, ¶ 17, quoting Pyromatics, Inc. v. Petruziello, 7 Ohio App.3d 131, 134,
454 N.E.2d 588 (8th Dist.1983), citing Converse v. Hawkins, 31 Ohio St. 209 (1877);
Rowland v. Entrekin, 27 Ohio St. 47 (1875); and Harden Chevrolet Co. v. Pickaway
Grain Co., 194 N.E.2d 177 (Pickaway C.P.1961). A trial court possesses discretion to
determine whether a certain matter is triable to a jury. Id., citing Murello Constr.
Co. v. Citizens Home Savs. Co., 29 Ohio App.3d 333, 334, 505 N.E.2d 637 (9th
Dist.1985).
We do not determine, at this juncture, whether respondent’s
interpretation is correct, but she possesses discretion to make that determination.
We further find that an appeal constitutes an adequate remedy at law
to vindicate a right to trial by jury. Courts in Ohio have found that an appeal from a final order constitutes an adequate remedy where a criminal defendant was denied
the right to trial by jury, precluding relief in mandamus. State ex rel. Norris v.
Watson, 11th Dist. Portage N0. 2001-P-0089, 2001-Ohio-3932; but see State v.
Court of Common Pleas of Lucas Cty., 6th Dist. Lucas No. L-80-197, 1980 Ohio App.
LEXIS 12485, 3 (Oct. 24, 1980), citing Farmer v. Loofbourrow, 75 Idaho 88, 267
P.2d 113 (1954) (“[T]his court finds that mandamus is the appropriate means by
which relator may obtain the ends requested because the relator does not have an
adequate remedy at law by which it can obtain the requested jury trial.”).
In certain circumstances, an appeal may not represent an adequate
remedy at law and mandamus or prohibition may lie regardless of an appellate
remedy. “For a remedy at law to be adequate, the remedy should be complete in its
nature, beneficial and speedy.” State ex rel. Liberty Mills, Inc. v. Locker, 22 Ohio
St.3d 102, 104, 488 N.E.2d 883 (1986), citing State ex rel. Merydith Constr. Co., v.
Dean, 95 Ohio St. 108, 123 (1916).
For instance, when a court disregards a mandate from a superior
court, the Supreme Court of Ohio has found that appeal is an inadequate remedy.
Kessler, 72 Ohio St.3d 98, 100, 101, 647 N.E.2d 792 (1995) (“In cases where a lower
court refuses to follow a superior court’s mandate, appeal is an inadequate
remedy.”). However, this is not applicable to the present case because we found that
respondent is not in direct disobedience of this court’s mandate.
When addressing mandamus actions involving the right to a jury trial,
the Supreme Court of Ohio has not distinguished these types of actions from others where an appeal does not represent an adequate remedy. A right to jury trial was at
issue in a mandamus action where a clerk of a mayor’s court refused to accept a filing
with a jury demand. State ex rel. Office of the Montgomery Cty. Pub. Defender v.
Siroki, 108 Ohio St.3d 334, 2006-Ohio-1065, 843 N.E.2d 778. The court listed the
standard requirements for a writ of mandamus to issue. Id. at ¶ 5. It did not carve
out an exception as it did in Kessler. The same is true where a civil litigant claimed
a right to a referral of a case to a retired judge for a jury trial. State ex rel.
MetroHealth Med. Ctr. v. Sutula, 110 Ohio St.3d 201, 2006-Ohio-4249, 852 N.E.2d
722, ¶ 8-9.
Where a court is without jurisdiction to render a judgment,
mandamus or prohibition may lie to compel that court to vacate its judgment
regardless of whether a relator possesses a right to appeal. State ex rel. Ballard v.
O’Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (1990). However, that is not the case
here. Respondent possesses discretion to determine whether issues are triable to a
jury. Mandamus may not be used to control judicial discretion, even where that
discretion is grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 119,
515 N.E.2d 914 (1987). Prohibition also does not lie where a court has general
subject-matter jurisdiction and the ability to determine its own jurisdiction. State
ex rel. Jelinek, 127 Ohio St.3d 332, 2010-Ohio-5986, 939 N.E.2d 847, at ¶ 13,
quoting State ex rel. Plant v. Cosgrove, 119 Ohio St.3d 264, 2008-Ohio-3838, 893
N.E.2d 485, ¶ 5. After determining that respondent is not grossly disobeying a
mandate of this court, we find that Gallagher possesses an adequate remedy at law
by way of an appeal. “‘[C]ontentions that appeal from any subsequent adverse final
judgment would be inadequate due to time and expense are without merit.’” State
ex rel. Estate of Nichols v. Russo, 8th Dist. Cuyahoga No. 107508, 2018-Ohio-3416,
¶ 11, quoting State ex rel. Lyons v. Zaleski, 75 Ohio St.3d 623, 626, 665 N.E.2d 212
(1996), citing Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm., 74 Ohio St.3d 120,
124, 656 N.E.2d 684 (1995); State ex rel. Gillivan v. Bd. of Tax Appeals, 70 Ohio
St.3d 196, 200, 638 N.E.2d 74 (1994). Gallagher’s claims of added expense or
increase in time to resolve the matter are insufficient to justify departing from this
well-trodden path.
Respondent’s motion to dismiss Gallagher’s complaint is granted.
Costs assessed against relator. The clerk is directed to serve on the parties notice of
this judgment and its date of entry upon the journal. Civ.R. 58(B).
Complaint dismissed.
_______________________________ EILEEN T. GALLAGHER, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and CORNELIUS J. O’SULLIVAN, JR., J., CONCUR