State ex rel. Holden v. Swift

2023 Ohio 3580

• Court: Ohio Court of Appeals
• Decided: October 3, 2023
• Docket: 2023CA00098
• Status: Published

Opinion

[Cite as State ex rel. Holden v. Swift, 2023-Ohio-3580.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO, EX REL., : Hon. W. Scott Gwin, P.J. JAMES HOLDEN : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. Relator : : -vs- : Case No. 2023CA00098 : JUDGE THOMAS SWIFT : : OPINION Respondent

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Writ of Mandamus dismissed

DATE OF JUDGMENT ENTRY: October 3, 2023

APPEARANCES:

For - Relator For - Respondent

JAMES L. HOLDEN ROBERT DUFFRIN By and through counsel Assistant Stark County Prosecutor JAY F. CROOK 110 Central Plaza South, Suite 510 JAY F. CROOK, Canton, OH 44702 ATTORNEY AT LAW, LLC 30601 Euclid Avenue Wickliffe, OH 44092 [Cite as State ex rel. Holden v. Swift, 2023-Ohio-3580.]

Gwin, P.J.

{¶1} Relator James Holden filed a Petition for Writ of Mandamus against

Respondent Judge Thomas Swift, a visiting judge for the Stark County Probate Court.

The issue presented in Mr. Holden’s mandamus action is whether his attorney, Jay F.

Crook, was entitled to a continuance of a trial.

I. Background

{¶2} The underlying matter pending before the Stark County Probate Court

concerns a will contest. Respondent Judge Swift is serving as a visiting judge on the case.

This matter was scheduled for trial on August 21 and 22, 2023. On August 13, 2023,

Attorney Crook filed a motion via fax requesting a continuance of the trial date. Attorney

Crook sought a continuance due to the hospitalization of his mother. On August 18, 2023,

an employee at the Clerk of Courts left a message with Attorney Crook advising him the

case would proceed and that no further continuances would be granted.

{¶3} Mr. Holden asserts an undue burden was placed upon him since his counsel

was not available to participate in the trial. Mr. Holden explains, “[t]he action is even more

harmful when the fact that two continuances were granted to opposing counsel to allow

for sufficient recovery from surgery whereas a continuance was denied Relator’s counsel

during an ongoing medical crisis.” Petition for Writ of Mandamus, Aug. 21, 2023, p. 2. It

should be noted Judge Swift previously granted Attorney Crook a continuance to address

a family law case emergency resulting in the continuance of a May 5, 2023 hearing.

{¶4} Mr. Holden seeks mandamus relief from the alleged improper denial of

Attorney Crook’s request for a continuance. On September 5, 2023, Judge Swift filed a

Motion to Dismiss. Mr. Holden never responded to the motion. Stark County, Case No. 2023CA00098 3

II. Analysis

A. Writ of mandamus elements and Civ.R. 12(B)(6) standard

{¶5} A relator seeking mandamus relief “must establish (1) a clear legal right to

the requested relief, (2) a clear legal duty on the part of the respondent official or

government unit to provide it, and (3) the lack of an adequate remedy in the ordinary

course of the law.” State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-4563,

31 N.E.3d 608, ¶ 18, quoting State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-

Ohio-69, 960 N.E.2d 452, ¶ 6. “The relator must prove entitlement to the writ by clear and

convincing evidence.” Id., citing State ex rel. Cleveland Right to Life v. State Controlling

Bd., 138 Ohio St.3d 57, 2013-Ohio-5632, 3 N.E.3d 185, ¶ 2.

{¶6} Judge Swift seeks dismissal of the mandamus complaint under Civ.R.

12(B)(6). “For a court to dismiss a complaint pursuant to Civ.R. 12(B)(6), it must appear

beyond doubt from the complaint that the relator can prove no set of facts warranting

relief, after all factual allegations of the complaint are presumed true and all reasonable

inferences are made in the relator’s favor.” (Citation omitted.) State ex rel. Bandy v.

Gilson, 161 Ohio St.3d 237, 2020-Ohio-5222, 161 N.E.3d 672, ¶ 11.

B. Mandamus relief is unavailable to control judicial discretion.

{¶7} Mr. Holden does not have a clear legal right to the requested relief and

therefore, we dismiss his mandamus complaint under Civ.R. 12(B)(6). R.C. 2731.03

states: “The writ of mandamus may require an inferior tribunal to exercise its judgment,

or proceed to the discharge of any of its functions, but it cannot control judicial discretion.”

(Emphasis added.) “Granting or refusing to grant a motion for continuance rests within Stark County, Case No. 2023CA00098 4

the sound discretion of the court.” State ex rel. Buck v. McCabe, 140 Ohio St. 535, 537,

45 N.E.2d 763 (1942).

It is well-established that when a court has discretion to act, its only duty

is to exercise that discretion. State ex rel. Butler v. Demis (1981), 66 Ohio

St.2d 123, 20 O.O.3d 121, 420 N.E.2d 116. Although a writ of mandamus

may require an inferior tribunal to exercise its judgment or to proceed to

the discharge of its function, R.C. 2731.03, it may not control judicial

discretion, even if such discretion is grossly abused. R.C. 2731.03; State

ex rel. Sawyer v. O’Connor (1978), 54 Ohio St.2d 380, 8 O.O.3d 393, 377

N.E.2d 494, quoting State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 119,

515 N.E.2d 914 (1987).

{¶8} Thus, even if we found Judge Swift abused his discretion when he denied

Mr. Holden’s request for a continuance, mandamus relief is unavailable to address any

alleged abuse of that discretion.

III. Conclusion

{¶9} For these reasons, we grant Judge Swift’s Civ.R. 12(B)(6) Motion to

Dismiss. The clerk of courts is hereby directed to serve upon all parties not in default

notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B). Stark County, Case No. 2023CA00098 5

MOTION GRANTED.

WRIT DISMISSED.

COSTS TO RELATOR.

IT IS SO ORDERED.