[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited 

as State ex rel. Yeaples v. Gall, Slip Opinion No. 2014-Ohio-4724.] 

NOTICE

This slip opinion is subject to formal revision before it is 

published in an advance sheet of the Ohio Official Reports. 

Readers are requested to promptly notify the Reporter of 

Decisions, Supreme Court of Ohio, 65 South Front Street, 

Columbus, Ohio 43215, of any typographical or other formal 

errors in the opinion, in order that corrections may be made 

before the opinion is published. 

SLIP OPINION NO. 2014-OHIO-4724 

THE STATE EX REL. YEAPLES ET AL., APPELLEES, v. GALL, APPELLEE;

PRECISION DIRECTIONAL BORING, L.L.C., ET AL., APPELLANTS. 

[Until this opinion appears in the Ohio Official Reports advance sheets, 

it may be cited as State ex rel. Yeaples v. Gall, 

Slip Opinion No. 2014-Ohio-4724.] 

Venue—Civ.R. 3—Nominal parties—Writs of mandamus and procedendo 

denied. 

(No. 2013-0941—Submitted June 25, 2014—Decided October 28, 2014.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

No. 99454, 2013-Ohio-2207. 

_____________________ 

O’CONNOR, C.J.

{¶ 1} In this appeal, we are asked to determine whether the relatorsappellees are entitled to writs of mandamus and procedendo to compel the 

Cuyahoga County Common Pleas Court to vacate prior transfer orders and 

adjudicate relators’ claims on the merits. For the reasons that follow, we 
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2

must answer that question in the negative. Therefore, we reverse the 

appellate court’s judgment and deny relators’ request for the writs. 

RELEVANT BACKGROUND

{¶ 2} Relator-appellee Donald Yeaples was an employee of 

respondent-appellant Precision Directional Boring, L.L.C. Respondentappellant Gary Cole was Yeaples’s coworker at Precision. 

{¶ 3} In January 2010, Yeaples and Cole were on a job site in Summit 

County to identify residential connections for storm, sanitary, and water pipes 

potentially in the path of a planned water main. The job site was located in 

front of a private, residential driveway. The homeowner notified Yeaples 

that he needed to back out of the driveway. Yeaples relayed this information 

to Cole, who was operating an excavator. Yeaples then went to the rear of 

the excavator to direct the homeowner out of the driveway. While there, 

Yeaples was struck and injured by the excavator. 

{¶ 4} In January 2012, Yeaples and his wife, relator Debra Yeaples, 

commenced an action in the Cuyahoga County Common Pleas Court against 

Precision, Cole, and various John Does, asserting claims for workplace 

intentional tort, negligence, violation of Ohio’s frequenter statute, R.C. 

4101.11, and loss of consortium. Relevant to this appeal is Count I, entitled 

“Workplace Intentional Tort,” against Precision and Cole. 

{¶ 5} In February 2012, Precision moved to dismiss the complaint or 

to transfer for improper venue. Cole, as a resident of Cuyahoga County, is 

the only party with a connection to that forum. Precision has its principal 

place of business in Medina County, and the Yeapleses are residents of 

Lorain County. 

{¶ 6} Precision argued that Cole was immune from suit under R.C. 

4123.741, which precludes recovery of damages from a co-employee for an 

injury received in the course of and arising out of the employment. Precision 
January Term, 2014 

3

asserted that because the complaint failed to allege that Cole had committed 

an intentional tort, Cole was not a proper defendant and therefore his 

residence was an improper basis for venue. 

{¶ 7} In March 2012, the Cuyahoga County Common Pleas Court 

granted Precision’s motion and transferred the case to the Medina County 

Common Pleas Court. The journal entry effectuating this ruling did not 

contain the court’s reasoning for the order. 

{¶ 8} In May 2012, the Yeapleses moved the Medina County Court of 

Common Pleas to refuse the transfer of venue. After a hearing, the Medina 

County court ordered that the case be transferred back to Cuyahoga County. 

In support of its decision, the court found that the complaint broadly stated a 

claim for a workplace intentional tort against Cole, which, the court 

concluded, might fall outside the immunity provided to a co-employee by the 

workers’ compensation statute. The court concluded that Cole was more than 

a nominal defendant and therefore that venue was proper in Cuyahoga 

County. 

{¶ 9} In August 2012, with the action pending again before the 

Cuyahoga County Common Pleas Court, Precision and Cole moved the court 

to refuse venue and reaffirm its prior ruling transferring the action. 

Respondent Judge Steven E. Gall of the Cuyahoga County court granted the 

motion and ordered that the case be transferred back to Medina County, 

stating, “Pursuant to the court’s prior order, venue is not proper in Cuyahoga 

County * * *.” 

{¶ 10} While the case remained pending before the Medina County 

Common Pleas Court for a second time, the Yeapleses filed a complaint in 

the Eighth District Court of Appeals seeking writs of mandamus and 

procedendo to compel Judge Gall of the Cuyahoga County Common Pleas 
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4

Court to vacate that court’s transfer orders and adjudicate the underlying 

action on the merits. 

{¶ 11} At the same time, the Yeapleses moved the Medina County 

court to stay the underlying case. In February 2013, the Medina County court 

declined to accept or reject transfer of the case until the resolution of the 

Yeapleses’ writ action by the appellate court. 

{¶ 12} In the writ action in the court of appeals, all parties moved for 

summary judgment. In May 2013, the appellate court granted the Yeapleses’ 

motion for summary judgment and issued the writs of mandamus and 

procedendo. 

{¶ 13} The appellate court concluded that the Yeapleses had stated a 

workplace-intentional-tort claim against Cole in the underlying case because 

the allegations in that count were directed against “defendants” in the plural 

form. 2013-Ohio-2207, at ¶ 10, 19. Thus, it concluded that Cole was more 

than a nominal defendant and that venue was proper in Cuyahoga County. 

{¶ 14} In light of the appellate court’s decision issuing the writs, the 

Medina County court rejected the venue transfer. Precision and Cole filed a 

motion for reconsideration of that order, informing the Medina County court 

that they had appealed to this court. The Medina County court granted the 

motion for reconsideration and stayed its prior order refusing the venue 

transfer until this court could resolve the appeal. 

{¶ 15} This cause is now before the court on an appeal as of right by 

respondents Precision and Cole. Judge Gall did not appeal but filed a brief 

adopting appellants’ arguments. 

ANALYSIS

{¶ 16} Respondents argue that the appellate court should have denied 

the writs because Ohio does not recognize a cause of action against a 

coworker analogous to the workplace intentional tort codified in R.C. 
January Term, 2014 

5

2745.01 for claims against an employer.1 Because there is no such cause of 

action, respondents argue, Cole is a nominal party and venue is not proper in 

Cuyahoga County.2 

{¶ 17} In response, the Yeapleses contend that Ohio law permits an 

intentional-tort claim against a co-employee notwithstanding the immunity 

provision set forth in R.C. 4123.741. That provision, for which the Yeapleses 

contend an exception was established in Blankenship v. Cincinnati Milacron 

Chems., Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982), and its progeny, 

exempts employees from liability for work-related injuries to other 

employees.3 The Yeapleses argue that their allegations state a potentially 

 1

 R.C. 2745.01 states: 

(A) In an action brought against an employer by an employee, or 

by the dependent survivors of a deceased employee, for damages resulting 

from an intentional tort committed by the employer during the course of 

employment, the employer shall not be liable unless the plaintiff proves 

that the employer committed the tortious act with the intent to injure 

another or with the belief that the injury was substantially certain to occur. 

(B) As used in this section, “substantially certain” means that an 

employer acts with deliberate intent to cause an employee to suffer an 

injury, a disease, a condition, or death. 

2

 Respondents also argue that because Judge Gall’s order transferring the action to Medina 

County had been completely performed, there is no action pending in the Cuyahoga County 

Common Pleas Court and, therefore, that the Court of Appeals for Cuyahoga County lacks 

jurisdiction to issue the writs. Respondents contend, therefore, that the writ action is moot. 

We do not agree that the appeal can be resolved on such a procedural detail. 

3

 R.C. 4123.741 states: 

No employee of any employer, as defined in division (B) of 

section 4123.01 of the Revised Code, shall be liable to respond in damages 

at common law or by statute for any injury or occupational disease, 

received or contracted by any other employee of such employer in the 

course of and arising out of the latter employee’s employment, or for any 

death resulting from such injury or occupational disease, on the condition 

that such injury, occupational disease, or death is found to be compensable 

under sections 4123.01 to 4123.94, inclusive, of the Revised Code. 
SUPREME COURT OF OHIO

6

viable claim against Cole and establish that he is more than a nominal 

defendant and therefore that their choice of forum should govern the action. 

{¶ 18} This court need only determine whether the relators are 

entitled to the issuance of the writs. See State ex rel. Pressley v. Indus. 

Comm., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), at paragraph ten of the 

syllabus. To reach that conclusion, we need not tread into the complex 

workers’ compensation milieu to determine whether Ohio recognizes the 

workplace intentional tort against a co-employee, because relators have not 

established the requisite elements for the writs to issue. 

{¶ 19} To be entitled to a writ of mandamus, relators must establish 

(1) a clear legal right to the requested relief, (2) a clear legal duty on the part 

of the relevant agency or governmental unit to provide it, and (3) the lack of 

an adequate remedy in the ordinary course of the law. State ex rel. Waters v. 

Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Relators 

must prove that they are entitled to the writ by clear and convincing evidence. 

Id. at ¶ 13. 

{¶ 20} Similarly, to be entitled to a writ of procedendo, relators must 

establish (1) a clear legal right to require respondent to proceed, (2) a clear 

legal duty by the respondent judge to proceed, and (3) the lack of an adequate 

remedy in the ordinary course of the law. State ex rel. Weiss v. Hoover, 84 

Ohio St.3d 530, 531, 705 N.E.2d 1227 (1999). “A writ of procedendo is 

appropriate when a court has either refused to render a judgment or has 

unnecessarily delayed proceeding to judgment.” Id. at 532. 

{¶ 21} Regarding the first requirement for either writ to issue, the 

Yeapleses must establish a clear legal right to the vacation of the Cuyahoga 

County court’s transfer orders and to an order compelling that court to 

adjudicate the merits of the case. If Cole is more than a nominal party, venue 

is proper in Cuyahoga County and the Yeapleses have established a clear 
January Term, 2014 

7

legal right to have the case adjudicated there. Civ.R. 3(E).4 But the vacation 

of the transfer orders would be warranted only if it were clear that Cole was 

more than a nominal defendant. We hold that he is not. 

{¶ 22} “Nominal party” is not defined in the Civil Rules. “[F]or 

purposes of Civ.R. 3(E), it may be said that a ‘nominal party’ is one whose 

presence in the action is either: (1) merely formal; or, (2) unnecessary for a 

just and proper resolution of the claim(s) presented.” Smith v. Inland 

Paperboard & Packaging, Inc., 11th Dist. Portage No. 2007-P-0088, 2008-

Ohio-6984, ¶ 41. 

{¶ 23} Here, the appellate court found that “the consistent and 

repeated use of ‘defendants’ in the plural shows that the relators intended to 

include Cole in Count 1 as a tortfeasor and not just as a nominal party.” 

2013-Ohio-2207, ¶ 10. We do not find the use of the word “defendants” in 

its plural form here to be determinative of whether a viable cause of action is 

alleged against one of the defendants when the allegations, by their nature, 

cannot be said to logically extend to both defendants. 

{¶ 24} For example, the Yeapleses allege that “Defendants instructed

and required Yeaples to work with” equipment alleged to be in a defective 

and unsafe condition (emphasis added) and that “Defendants deliberately 

required Plaintiff, Yeaples, to engage in an activity which was known to be 

‘substantially certain’ to cause injury * * *” (emphasis added). Yet there is 

no allegation that Cole was a supervisor or manager or exercised authority 

over Yeaples to require or instruct him to do anything. And there is no 

allegation that Cole acted outside his role as Yeaples’s coworker to 

 4

 Pursuant to Civ.R. 3(E), in an action involving more than one defendant, “venue in the 

forum shall be proper, if the venue is proper as to any one party other than a nominal party.” 

Because Cole is the only party with a connection to Cuyahoga County, venue is not proper 

there if he is a nominal party. 
SUPREME COURT OF OHIO

8

personally exercise authority over Yeaples. As the amended complaint 

makes clear, the focus of the Yeapleses’ workplace-tort claim is Precision. 

{¶ 25} The first amended complaint5

 clarifies that the allegations are 

primarily directed to Precision and eliminates much of the usage of the plural 

form of “Defendants.” Comparing the two versions of the pleading, the 

corresponding allegations of the amended complaint state: “Defendant 

Precision failed to properly instruct and/or train its employees * * *” 

(emphasis added) and “Defendant Precision deliberately required Plaintiff 

Yeaples to engage in an activity that was known to be ‘substantially certain’ 

to end in an injury or fatality * * *” (emphasis added). References to Cole in 

these material allegations have been removed. 

{¶ 26} Having reviewed the complaints and the allegations therein, 

we find it clear that whether Cole is present in the case or not, the Yeapleses’ 

allegations relate primarily to Precision’s actions and therefore to Precision’s 

liability. There is no showing that Cole’s presence in the case as a party is 

necessary for a just and proper resolution of the claims presented. Thus, Cole 

is a nominal party, and venue cannot be based solely on his residence.6

 We 

recognize that the appellate court concluded that R.C. 4123.741 did not 

 5

 It is unclear from the record whether the original or first amended complaint governs 

because Precision and Cole moved to strike the amended complaint as improperly filed 

without leave. It appears that the motion has not yet been resolved. By the appellate court’s 

reliance on the use in the allegations of the term “Defendants” in plural form, and the 

absence, or significant reduction, of that usage in the first amended complaint, we assume 

that the appellate court looked to the allegations in the original complaint. Regardless of 

which version of the complaint governs, we address both here so as to avoid any confusion 

on which our decision is based. 

6

 The dissent misleadingly suggests that the Cuyahoga County Common Pleas Court did not 

find that Cole was a nominal party. Although we may not have the advantage of an opinion 

from the Cuyahoga County Common Pleas Court, that court specifically held that venue was 

not proper in Cuyahoga County in response to arguments from the parties regarding whether 

Cole was a nominal party. And Judge Gall argued in a motion for summary judgment in the 

writ action that venue was not proper in Cuyahoga County because Cole was a nominal 

party. 
January Term, 2014 

9

preclude an intentional-tort claim against a fellow employee and that “it is 

possible and permissible to state an intentional-tort claim against a coemployee.” 2013-Ohio-2207, ¶ 11. But there is no question that the 

Yeapleses did not state a traditional intentional-tort claim, such as assault or 

battery, against Cole. The only type of tort alleged against Cole is a 

“workplace intentional tort,” which, the Yeapleses argue, is permitted as a 

species of common-law torts and recognized in Blankenship and its progeny. 

{¶ 27} But even assuming that such a tort against a co-employee is 

recognized in Ohio’s workers’ compensation law, the allegations in Count I 

of the complaint do not sufficiently state a claim against Cole to demonstrate 

a clear legal right to the requested writ. Thus, without reaching the question 

of whether such a cause of action exists, and without determining the 

sufficiency of the pleadings for the purposes of Civ.R. 8 or a motion to 

dismiss under Civ.R. 12(B)(6), we conclude that the Yeapleses’ allegations in 

Count I do not state a claim whose resolution requires Cole’s presence. 

{¶ 28} Because Cole is a nominal party, venue is not proper in 

Cuyahoga County. Therefore, the Yeapleses cannot establish a clear legal 

right to the vacation of that court’s orders transferring venue. 

{¶ 29} Even if the Yeapleses did state a viable claim against Cole and 

establish a clear legal right to proper venue in Cuyahoga County, the 

Yeapleses failed to establish the second requirement for entitlement to the 

writs of mandamus and procedendo: that Judge Gall is under a clear legal 

duty to perform the actions requested. 

{¶ 30} Venue is not improper in Medina County. Venue is always 

proper in a county in which a defendant—other than a nominal defendant—

resides. Civ.R. 3(E). Ohio does not recognize the applicability of forum non 

conveniens as a basis for intrastate transfers of venue. State ex rel. Lyons v. 

Zaleski, 75 Ohio St.3d 623, 624, 665 N.E.2d 212 (1996). If venue is proper, 
SUPREME COURT OF OHIO

10

a trial court must accept venue. Civ.R. 3. But a court may transfer an action 

to an adjoining county if a fair and impartial trial cannot be had where the 

action is pending. Civ.R. 3(C)(4). 

{¶ 31} Here, Medina and Cuyahoga Counties are adjoining counties, 

but there is no evidence that any party sought, or the court ordered, a transfer 

because Cuyahoga County was not a fair and impartial venue. Therefore, 

because venue is proper in Medina County and there is no allegation that a 

trial in Medina County would not be fair and impartial, the Yeaples have not 

established a clear legal duty for the court to issue the writs. 

{¶ 32} The third requirement for the writs—the lack of an adequate 

remedy in the ordinary course of the law—also fails because appeal 

following a final judgment is sufficient here. 

{¶ 33} “Extraordinary relief in mandamus or prohibition generally 

does not lie to challenge a decision on a motion to change venue because 

appeal following a final judgment provides an adequate legal remedy.” State 

ex rel. Banc One Corp. v. Walker, 86 Ohio St.3d 169, 173, 712 N.E.2d 742 

(1999); Lyons, 75 Ohio St.3d at 625. An appeal is inadequate if not complete 

in nature, beneficial, and speedy. Id. 

{¶ 34} The dissenting opinion’s purported concern with legal 

expenses and dead witnesses appears to be a fiction, for there is no support 

for those “facts” in the record. But even if there were support in the record, 

the concerns are misplaced. First, a party’s litigation strategy does not 

inform whether there exists an adequate remedy at law. Second, “[t]he mere 

fact that postjudgment appeal may be expensive to pursue does not render 

appeal inadequate so as to satisfy extraordinary relief.” Banc One Corp., 86 

Ohio St.3d at 173-174. 

{¶ 35} The appellate court relied on State ex rel. Smith v. Cuyahoga 

Cty. Court of Common Pleas, 106 Ohio St.3d 151, 2005-Ohio-4103, 832 
January Term, 2014 

11

N.E.2d 1206, to conclude that appeal would not be an adequate legal remedy 

here. We do not agree that Smith is apposite. 

{¶ 36} In Smith, the Cuyahoga County court transferred the case to 

Wayne County because a substantial portion of the underlying facts occurred 

there. After a partial settlement, the plaintiff dismissed the remaining claims 

without prejudice. Plaintiff recommenced the action in Cuyahoga County, 

and again, the Cuyahoga County court transferred the case to Wayne County. 

This time, the Wayne County court granted a motion to refuse the transfer 

and returned the case to Cuyahoga County. Despite venue being proper in 

Cuyahoga County, that court transferred it a third time to Wayne County. 

Plaintiff then filed a mandamus action to compel the Cuyahoga County court 

to vacate its transfer orders and adjudicate the case. 

{¶ 37} The appellate court here found the procedural postures of 

Smith and this case indistinguishable. 2013-Ohio-2207, ¶ 17. But there are 

two key differences. 

{¶ 38} First, in Smith, venue was proper in either Cuyahoga or Wayne 

Counties, and plaintiff therefore established a clear legal right to the relief 

requested by the writ. Smith at ¶ 9. Here, however, venue is not proper in 

Cuyahoga County, because Cole is only a nominal defendant. 

{¶ 39} Second, in Smith, both the Cuyahoga County and Wayne 

County courts refused to exercise jurisdiction over the case and neither court 

would proceed to judgment without the writ. Smith, at ¶ 20. In contrast here, 

the Medina County court’s order stated only that it was declining to accept or 

reject transfer of the case “until such time as the Eighth District Court of 

Appeals adjudicates or dismisses the Plaintiffs’ original action.” Following 

the initiation of this appeal, the Medina County court went a step further and 

stayed that prior order refusing the venue transfer until this appeal is 

resolved. The order specifically stated, “The Clerk of Courts shall retain this 
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12

file until further order of the Court.” This pragmatic delay does not rise to 

the level of the refusal of jurisdiction present in Smith requiring the issuance 

of an extraordinary writ. The Medina County court retains the case and can 

resume the case following this court’s decision. Moreover, Medina County is 

the only forum of proper venue here. Thus, the Yeapleses cannot establish 

that an appeal following a final judgment would not be an adequate remedy. 

CONCLUSION

{¶ 40} Because Cole’s status as a nominal party prevents the 

Yeapleses from establishing a clear legal right to the vacation of the transfer 

orders in Cuyahoga County or a clear legal duty by Judge Gall to perform 

that act, and because an appeal would provide an adequate remedy, we hold 

that the Yeapleses are not entitled to the extraordinary relief provided through 

the writs of mandamus and procedendo. We therefore reverse the decision of 

the Eighth District Court of Appeals and deny the relators’ request for the 

writs. We also reverse the appellate court’s judgment granting costs of the 

writ action to the relators. 

Judgment reversed. 

O’DONNELL, LANZINGER, KENNEDY, and FRENCH JJ., concur. 

PFEIFER, J., concurs in the judgment only. 

O’NEILL, J., dissents. 

_____________________ 

O’NEILL, J., dissenting.

{¶ 41} There are two issues that trouble me in this case. First, Donald 

and Debra Yeaples set forth in their original complaint a claim for intentional 

tort against the employer, Precision Directional Boring, L.L.C., and the 

coworker who was operating the excavator, Gary Cole, who is a resident of 

Cuyahoga County. Ohio is a notice-pleading state. Cincinnati v. Beretta 

U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 29. 
January Term, 2014 

13

The Yeapleses’ complaint clearly named Cole as a defendant and stated that 

it was based upon intentional tort. Pursuant to Civ.R. 8(A), this was adequate 

notice to allow the preparation of a sufficient defense. In Ohio, that is all that 

is required. Iacono v. Anderson Concrete Corp., 42 Ohio St.2d 88, 92, 326 

N.E.2d 267 (1975). 

{¶ 42} In their complaint, the Yeapleses added at paragraph 16: 

At all times mentioned herein, Defendants knew that if 

Yeaples was subjected to the hazardous and dangerous 

conditions surrounding use of the equipment, then harm to 

Yeaples was substantially certain to occur. 

{¶ 43} The high degree of specificity that the majority demands in 

this case is contrary to this court’s decision in Tulloh v. Goodyear Atomic 

Corp., 62 Ohio St.3d 541, 544, 584 N.E.2d 729 (1992), in which the court 

stated that it had to presume that “all factual allegations in the complaint are 

true and it must appear beyond doubt that the plaintiff can prove no set of 

facts warranting recovery” before dismissal was appropriate. 

{¶ 44} Simply stated, the Yeapleses’ complaint was sufficient to 

make Cole more than a nominal party in this action. Interestingly, neither the 

Cuyahoga County Common Pleas Court judge, nor the Medina County 

Common Pleas Court judge, nor the three Eighth District judges found that 

Cole was only a nominal party. There is no legal basis to find differently and 

overturn the Eighth District’s decision. Since he was an actual party, venue 

in Cuyahoga County was appropriate. 

{¶ 45} This brings me to the second issue that I have with the 

majority’s opinion. They conclude that the Yeapleses have an adequate 

remedy at law and therefore that it was improper for the Eighth District to 
SUPREME COURT OF OHIO

14

allow the writs of mandamus and procedendo. Being forced to expend 

$100,000 in trial preparation including expert witnesses in the wrong county, 

so that you can appeal three years later after your witnesses have all died, is 

not an adequate remedy at law. The filing of a petition for mandamus 

demanding that a trial judge do his or her job is the only adequate remedy at 

law. 

{¶ 46} I respectfully dissent. 

_____________________ 

Paul W. Flowers, Co., L.P.A., and Paul W. Flowers; and Bashein & 

Bashein Co., L.P.A., and W. Craig Bashein, for appellees Donald and Debra 

Yeaples. 

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and 

Charles E. Hannan, Assistant Prosecuting Attorney, for appellee Steven E. 

Gall. 

Weston Hurd, L.L.P., Shawn W. Maestle, and Carolyn M. Cappel, for 

appellants. 

Tucker Ellis, L.L.P., Benjamin C. Sassé, and Jeffrey C. Sindelar Jr., 

urging reversal for amicus curiae, Ohio Association of Civil Trial Attorneys.