State ex rel. L.M. v. Goldberg

2023 Ohio 537

• Court: Ohio Court of Appeals
• Decided: February 17, 2023
• Docket: 112412
• Status: Published

Opinion

[Cite as State ex rel. L.M. v. Goldberg, 2023-Ohio-537.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE EX REL., L.M., :

Relator, : No. 112412 v. :

THE HONORABLE JUDGE : FRANCINE B. GOLDBERG, : Respondent.

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DENIED DATED: February 17, 2023

Writ of Mandamus Order No. 562118

Appearances:

Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole A. Cruz, and Kelley R. Tauring, for relator.

LISA B. FORBES, P.J.:

L.M., the relator, has filed a complaint for a writ of mandamus. L.M.

seeks a peremptory writ of mandamus, or an alternative writ of mandamus, that

requires Judge Francine B. Goldberg to continue a trial scheduled to commence

February 15, 2023. Following a complete review of the complaint and the attached

documents, we deny the requested writ. I. Facts

The following facts are gleaned from L.M.’s complaint for a writ of

mandamus. On October 27, 2021, L.M. filed her complaint for divorce, through

counsel, in Cuyahoga C.P. No. DR-21-387547. On December 29, 2022, L.M.’s

counsel filed a motion to withdraw as counsel. On December 30, 2022, Judge

Goldberg granted counsel’s motion to withdraw as counsel for L.M. On January 27,

2023, L.M. filed a pro se motion to continue trial set for February 15, 2023, and

February 16, 2023. On February 8, 2023, Judge Goldberg denied L.M.’s motion to

continue trial set for February 15 and 16. On February 8, 2023, L.M.’s newly

obtained counsel filed a notice of appearance and a motion for continuance of the

trial set for February 15 and 16. On February 9, 2023, Judge Goldberg denied the

motion for continuance filed by L.M.’s second counsel. L.M. electronically filed her

complaint for a peremptory writ of mandamus or alternative writ of mandamus on

February 14, 2023, at 10:40 p.m., the day before the trial was scheduled to begin.

L.M. alleges that she had a clear legal right to have her request for a continuance

granted and that by denying the motion for continuance, Judge Goldberg failed to

fulfill a clear legal duty.

II. Law and Analysis

A. Standards Applicable to Mandamus

The requisites for mandamus are well established: (1) the relator

possesses 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 other adequate remedy in the ordinary course of the law. In addition, mandamus may not

control judicial discretion, even if the exercise of judicial discretion is grossly

abused. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 676 N.E. 108 (1997); State

ex rel. Board Walk Shopping Ctr., Inc. v. Court of Appeals, 56 Ohio St.3d 33, 564

N.E.2d 86 (1990); State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914

(1987). Moreover, mandamus is an extraordinary remedy, which is to be exercised

with caution and only when the right is clear. It should not issue in doubtful cases.

State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel.

Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953); State ex rel.

Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (1993).

B. Legal Analysis

Herein, we find that L.M. has failed to establish each prong of the

three-part test applicable to a complaint for a writ of mandamus. Initially, L.M. has

failed to establish that she possesses a clear legal right to a continuance of the dates

set for trial or that Judge Goldberg possesses a clear legal duty to grant a

continuance. Pursuant to Sup.R. 41(A), the continuance of a scheduled trial or

hearing is a matter within the sound discretion of the trial court for good cause

shown. To require Judge Goldberg to grant a continuance at this juncture of legal

proceedings would trample on her judicial discretion, and as previously stated,

mandamus may not be employed to control judicial discretion, even if the exercise

of judicial discretion constitutes gross abuse. State ex rel. Richfield v. Laria, 138

Ohio St.3d 168, 2014-Ohio-243, 4 N.E.3d 1040; State ex rel. Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510; Patterson v. Cuyahoga Cty.

Common Pleas Court, 8th Dist. Cuyahoga No. 107755, 2019-Ohio-110.

Finally, the fact that a postjudgment appeal may be time consuming

and expensive to pursue does not render an appeal inadequate so as to justify

extraordinary relief through mandamus. State ex rel. Banc One Corp. v. Walker, 86

Ohio St.3d 169, 712 N.E.2d 742 (1999); Fraiberg v. Cuyahoga Cty. Court of

Common Pleas, 76 Ohio St.3d 374, 667 N.E.2d 1189 (1996); State ex rel. Gillivan v.

Bd. of Tax Appeals, 70 Ohio St.3d 196, 200, 638 N.E.2d 74 (1994). See also

Stalnaker v. Stalnaker, 9th Dist. Summit No. 29838, 2023-Ohio-61 (following trial,

an appeal may be filed that challenges the failure of the trial court to grant a

continuance based upon an abuse-of-discretion argument).

Accordingly, we deny the request for a peremptory writ of mandamus

or an alternative writ of mandamus. Costs to L.M. The court directs the clerk of

courts to serve all parties with notice of this judgment and the date of entry upon the

journal as required by Civ.R. 58(B).

Writ denied.

_______________________________ LISA B. FORBES, PRESIDING JUDGE

EMANUELLA D. GROVES, J., and MICHAEL JOHN RYAN, J., CONCUR