[Cite as State ex rel. J.H. v. Jones, 2023-Ohio-1902.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE EX REL. J.H., :

Relator, :

No. 112825

v. :

JUDGE TONYA R. JONES, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DENIED

DATED: June 7, 2023

Writ of Mandamus

Order No. 564988

Appearances:

Stafford Law Co., L.P.A., Joseph G. Stafford, and Nicole A. 

Cruz, for relator.

MARY EILEEN KILBANE, J.:

On June 6, 2023, the relator, J.H., the defendant in the underlying case, 

C.H. v. J.H., Cuyahoga D.R. No. DR-17-369147, filed this mandamus action against 

the respondent, Judge Tonya R. Jones, to compel the judge to grant a continuance 
for a trial scheduled in the underlying case for June 7, 2023. For the following 

reasons, this court denies the application for a writ of mandamus.

The attorney for the relator also represents the defendant in J.S. v. A.S., 

Cuyahoga D.R. No. DR-19-375930. The judge in that case on January 26, 2023, 

scheduled trial dates for June 5-9, 2023.

In the underlying case, a March 8, 2023 magistrate’s order denied 

relator’s attorney’s motion to continue an April 4, 2023 trial date. Relator’s attorney 

then moved the respondent to set aside the magistrate’s order. In a March 27, 2023 

order, the judge first noted the difficulties the relator’s attorney had in setting trial 

dates. The magistrate had noted there had been “multiple attempts to secure 

mutually agreed upon date(s)” but relator’s attorney “has consistently represented 

that he is unavailable to reschedule the matter. Neither the Guardian ad litem nor 

Counsel for Plaintiff/Father have presented the same problem to the Court.” The

judge continued that in efforts to schedule the trial, relator’s attorney “either did not 

respond to attempts to secure dates or only offered available dates well outside of 

the scheduling window proposed by the Court.” Nevertheless, the respondent judge 

granted the relator’s attorney’s motion to set aside the magistrate’s order and then 

ordered that the “in-person trial is rescheduled to the mutually agreed upon dates 

of June 7, 2023, June 8, 2023, August 2, 2023, and August 3, 2023.” The order 

concluded: 

COUNSEL WILL NOT BE EXCUSED TO ATTEND OTHER COURT 

COMMITMENTS AND SHALL PROVIDE SUBSTITUTE COUNSEL IF 
(S)HE IS UNABLE TO APPEAR. NO FURTHER CONTINUANCES 

WILL BE GRANTED ABSENT AN EMERGENCY SITUATION.

Relator’s attorney now represents that the respondent judge knew 

about the conflict and that the respondent judge said she would not go forward with 

the June dates unless she could get relator’s attorney released from the trial in 

DR-19-375390. On June 1, 2023, the respondent judge issued a sua sponte order 

confirming that the trial of the underlying case would go forward on June 7, 2023. 

In doing so, she reiterated the relevant portions of her March 27, 2023 journal entry 

and that all counsel had agreed to this date.

On June 2, 2023, relator’s attorney moved to continue the hearing date 

because of the conflict. The respondent judge denied the motion noting that the 

dates were mutually agreed upon dates. Relator’s attorney moved for 

reconsideration, arguing that there was no certainty in the date, and commenced 

this writ action.

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

have a clear legal right to the requested relief, (2) the respondent must have a clear 

legal duty to perform the requested relief, and (3) there must be no adequate remedy 

at law. Additionally, although mandamus may be used to compel a court to exercise 

judgment or to discharge a function, it may not control judicial discretion, even if 

that discretion is grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 

515 N.E.2d 914 (1987). Mandamus does not lie to correct errors and procedural 

irregularities in the course of a case. State ex rel. Jerninghan v. Gaughan, 8th Dist. 
Cuyahoga No. 67787, 1994 Ohio App. LEXIS 6227 (Sept. 26, 1994). Moreover, 

mandamus is an extraordinary remedy that 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 (8th Dist.1993).

Additionally, the court has discretion in issuing the writ. In State ex 

rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), 

paragraph seven of the syllabus, the Supreme Court of Ohio ruled that “in 

considering the allowance or denial of the writ of mandamus on the merits, [the 

court] will exercise sound, legal and judicial discretion based upon all the facts and 

circumstances in the individual case and the justice to be done.” The court 

elaborated that in exercising that discretion the court should consider

the exigency which calls for the exercise of such discretion, the nature 

and extent of the wrong or injury which would follow a refusal of the 

writ, and other facts which have a bearing on the particular case. * * * 

Among the facts and circumstances which the court will consider are 

the applicant’s rights, the interests of third persons, the importance or 

unimportance of the case, the applicant’s conduct, the equity and 

justice of the relator’s case, public policy and the public’s interest, 

whether the performance of the act by the respondent would give the 

relator any effective relief, and whether such act would be impossible, 

illegal, or useless.

Id. at 161-162. See also State ex rel. Bennett v. Lime, 55 Ohio St.2d 62, 378 N.E.2d 

152 (1978); State ex rel. Dollison v. Reddy, 55 Ohio St.2d 59, 378 N.E.2d 150 (1978); 
and State ex rel. Mettler v. Commrs. of Athens Cty., 139 Ohio St. 86, 38 N.E.2d 393

(1941).

Relator’s attorney argues that Sup.R. 41 and Smith v. Dartt, 6th Dist. 

Lucas No. L-05-1124, 2005-Ohio-1885, have created a mandatory duty enforceable 

in mandamus to compel a continuance when there is a conflict between trial dates; 

the case that was first set for trial shall have priority. This court examined this issue 

in State ex rel. E.M. v. Jones, 8th Dist. Cuyahoga No. 111402, 2022-Ohio-1178. This 

court denied the writ of mandamus because the relator had not complied with the 

requirement of Sup.R. 41(B)(1) that the continuance motion must be filed not less 

than 30 days prior to trial.

So too in the present case, despite the respondent judge setting the 

trial dates on March 27, 2023, relator’s attorney waited more than two months until 

five days before trial to file the motion for continuance. In Jones at ¶ 5, this court 

noted:

“‘If the attorney chooses to delay a motion for continuance because of 

expectation that the scheduling conflict will be resolved, it is done at 

the risk that no continuance will be granted in the later-set case. A court 

may exercise its discretion in deciding whether a motion for a 

continuance was timely made, and if it holds that the motion was not 

timely, it may proceed to adjudication of the case ex parte.’”

Id., quoting Timeoni v. Ciancibelli, 11th Dist. Ashtabula No. 2006-A0077, 2007-

Ohio-2312, ¶ 25, quoting Wheaton Industries, Inc. v. Fashion Two Twenty, Inc., 

11th Dist. Portage No. 90-P-2185, 1993 Ohio App. LEXIS 4066, 7 (Aug. 20, 1993). 

See also Touche Ross & Co. v. Landskroner, 20 Ohio App.3d 354, 486 N.E.2d 850 
(8th Dist.1984) (The trial court did not abuse its discretion in denying an untimely 

motion for continuance when counsel was aware of the conflict more than one 

month prior to trial.); Alex N. Sill Co. v. Fazio, 2 Ohio App.3d 65, 440 N.E.2d 807 

(8th Dist.1981).

Accordingly, this court denies the application for a writ of mandamus. 

Relator to pay costs. This court directs the clerk of courts to serve all parties notice 

of the judgment and its date of entry upon the journal as required by Civ.R. 58(B)

Writ denied.

MARY EILEEN KILBANE, JUDGE

MICHELLE J. SHEEHAN, P.J., and

EMANUELLA D. GROVES, J., CONCUR