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

ex rel. Huntington Natl. Bank v. Kontos, Slip Opinion No. 2015-Ohio-5190.] 

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. 2015-OHIO-5190

THE STATE EX REL. HUNTINGTON NATIONAL BANK, APPELLANT, v. KONTOS,

JUDGE, APPELLEE, ET AL. 

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

may be cited as State ex rel. Huntington Natl. Bank v. Kontos, 

Slip Opinion No. 2015-Ohio-5190.] 

Prohibition—Procedendo—Appeal is adequate remedy in the ordinary course of 

the law—Judge’s jurisdiction to order evidentiary hearing was not patently 

and unambiguously lacking—Court of appeals’ dismissal of complaint for 

writs of prohibition and procedendo affirmed. 

(No. 2014-0656—Submitted July 7, 2015—Decided December 15, 2015.) 

APPEAL from the Court of Appeals for Trumbull County, No. 2013-T-0089,

2014-Ohio-1374. 

_____________________ 

Per Curiam.

{¶ 1} We affirm the Eleventh District Court of Appeals’ dismissal of a 

complaint for writs of prohibition and procedendo by relator-appellant, Huntington 
SUPREME COURT OF OHIO

2

National Bank, against respondent-appellee, Trumbull County Common Pleas 

Court Judge Peter J. Kontos. Huntington argues that a remand order from the court 

of appeals precludes Judge Kontos from assigning the underlying breach-ofcontract case to a magistrate for an evidentiary hearing and from using evidence 

adduced at that hearing to determine damages. 

{¶ 2} Because Huntington has an adequate remedy at law by way of appeal 

and because Judge Kontos’s jurisdiction to order the evidentiary hearing and to 

determine damages based on new evidence is not patently and unambiguously 

lacking, the court of appeals was correct to dismiss the case, and we affirm. 

Facts 

{¶ 3} In 2006, W. Thomas James and others filed a complaint for breach of 

contract against Sky Bank—predecessor in interest to the current relator-appellant, 

Huntington—as well as claims against other parties. James’s claim against the bank 

arose out of a construction loan for a funeral home that James was having built. 

James alleged that the bank had breached the terms governing the disbursement of 

funds to the general contractor, causing the contractor to quit before the building 

was completed. On October 1, 2010, Judge Kontos issued a judgment against the 

bank for breach of contract and awarded damages. 

{¶ 4} The bank filed a timely appeal, and the court of appeals reversed the 

judgment of the trial court on the issue of the proper standard for calculating 

damages and remanded for a recalculation. James v. Sky Bank, 11th Dist. Trumbull 

No. 2010-T-0116, 2012-Ohio-3883. Specifically, the court of appeals held that 

James, in his breach-of-contract action, was required to present evidence sufficient 

to prove that the breach proximately resulted in damages that can be determined to 

a reasonable certainty. Id. at ¶ 31-33, 47-55. The court further held that “additional 

expenditures after the contractor stopped work are not the proper measure of 

damages caused by the bank’s improper disbursement of funds.” Id. at ¶ 52. 

Rather, the court of appeals stated, “[T]he proper measure of damages under the 
January Term, 2015 

3

circumstances of this case would be the difference between the funds the bank 

improperly released to the contractor ($635,000) for the work the contractor 

claimed it had performed, and the actual value of that work (in materials and 

labor).”1

 Id. at ¶ 53. 

{¶ 5} In its order remanding the case, the court of appeals instructed Judge 

Kontos to apply the standard it had articulated for calculating damages to the record 

and to determine if the evidence justified any damages. Specifically, the court 

stated: “It is unclear whether the difference between the funds released to [the 

contractor] and the actual value of the work completed by [the contractor] could be 

ascertained from the evidence presented.” Id. at ¶ 54. “On remand, the trial court 

is to recalculate damages applying the proper measurement set forth in this opinion 

based on the evidence contained on [sic] the record.” Id. at ¶ 61. 

{¶ 6} On remand, after briefing and a hearing, Judge Kontos issued a 

judgment entry stating, “Having now reviewed the record of the trial proceedings, 

the Court finds that it is unable to arrive at a proper measure of damages as 

enunciated by the Court of Appeals without additional testimony.” Judge Kontos 

ordered that a new evidentiary hearing on damages would be held before his 

magistrate. 

{¶ 7} Huntington filed this action in procedendo and prohibition in the court 

of appeals at the same time that it filed a notice of appeal of the trial court’s order 

that a new evidentiary hearing be held. The court of appeals dismissed 

Huntington’s appeal because the trial court’s judgment entry ordering a new 

hearing was not a final appealable order. James v. Sky Bank, 11th Dist. Trumbull 

No. 2013-T-0087, 2014-Ohio-1159. 

 

1

 The court of appeals’ holding on the merits is not at issue here, and the court need take no position 

on it. 
SUPREME COURT OF OHIO

4

{¶ 8} In response to the procedendo and prohibition petition, Judge Kontos 

filed a motion to dismiss under Civ.R. 12(B), which the court of appeals granted, 

finding that Huntington has an adequate remedy by way of appeal and that the trial 

court did not exceed its jurisdiction by ordering an evidentiary hearing. 

{¶ 9} Huntington filed a timely appeal to this court. 

Analysis 

Motion for oral argument 

{¶ 10} Huntington has moved for oral argument. Oral argument in a direct 

appeal is discretionary. S.Ct.Prac.R. 17.02(A). In exercising this discretion, we 

consider whether the case involves a matter of great public importance, complex 

issues of law or fact, a substantial constitutional issue, or a conflict among the 

courts of appeals. State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio4563, 31 N.E.3d 608, ¶ 16, citing Appenzeller v. Miller, 136 Ohio St.3d 378, 2013-

Ohio-3719, 996 N.E.2d 919, ¶ 4, and cases cited therein. 

{¶ 11} None of these factors is mentioned in the request for oral argument, 

and the case involves a straightforward application of the standards for writs of 

prohibition and procedendo. The motion for oral argument is denied. 

Original action 

{¶ 12} Huntington argues that because Judge Kontos has determined that 

no evidence exists in the current record sufficient to award damages to James, under 

the court of appeals’ remand order, Judge Kontos has no choice but to issue 

judgment for Huntington and must be prohibited from conducting an evidentiary 

hearing on damages. Huntington therefore requested that the court of appeals issue 

a writ of procedendo ordering Judge Kontos to issue judgment in its favor and a 

writ of prohibition preventing him from conducting the hearing. Because the court 

of appeals correctly granted Judge Kontos’s motion to dismiss, we affirm. 

 
January Term, 2015 

5

Procedendo 

{¶ 13} To be entitled to a writ of procedendo, Huntington must show a clear 

legal right to require the trial court to proceed, a clear legal duty on the part of the 

trial court to proceed, and the lack of an adequate remedy in the ordinary course of 

the law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio 

St.3d 461, 462, 650 N.E.2d 899 (1995). A writ of procedendo is proper when a 

court has refused to enter judgment or has unnecessarily delayed in proceeding to 

judgment. State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 

180, 184, 652 N.E.2d 742 (1995). 

{¶ 14} Huntington is not entitled to a writ of procedendo. “An appeal is an 

adequate remedy in the ordinary course of law that precludes an action for * * * 

procedendo.” State ex rel. Ward v. Reed, 141 Ohio St.3d 50, 2014-Ohio-4512, 21 

N.E.3d 303, ¶ 12, citing State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 

Ohio St.3d 247, 250, 673 N.E.2d 1281 (1997), and State ex rel. Sevayega v. 

McMonagle, 122 Ohio St.3d 54, 2009-Ohio-2367, 907 N.E.2d 1180, ¶ 1. 

Huntington has a remedy in the ordinary course of the law in that it may appeal the 

trial court’s ruling on its objection to the additional hearing and evidence once the 

trial court has completed the hearing, redetermined damages, and issued a final 

order. 

{¶ 15} Therefore, the court of appeals was correct in dismissing 

Huntington’s claim for a writ of procedendo, and we affirm. 

Prohibition 

{¶ 16} To be entitled to a writ of prohibition, Huntington must establish that 

(1) in ordering the magistrate to conduct an evidentiary hearing, the trial court is 

about to or has exercised judicial power, (2) the exercise of that power is 

unauthorized by law, and (3) denying the writ would result in injury for which no 

other adequate remedy exists in the ordinary course of law. State ex rel. Bell v. 

Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 18, 23. The last 
SUPREME COURT OF OHIO

6

two elements can be met by a showing that the trial court “patently and 

unambiguously” lacked jurisdiction. Chesapeake Exploration, L.L.C. v. Oil & Gas 

Comm., 135 Ohio St.3d 204, 2013-Ohio-224, 985 N.E.2d 480, ¶ 11. 

{¶ 17} The court of appeals was correct in finding that Huntington is not 

entitled to a writ of prohibition. “ ‘[P]rohibition will [not] issue if the party seeking 

extraordinary relief has an adequate remedy in the ordinary course of law.’ ” State 

ex rel. Caskey v. Gano, 135 Ohio St.3d 175, 2013-Ohio-71, 985 N.E.2d 453, ¶ 2, 

quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 

1202, ¶ 12. An appeal is considered an adequate remedy that will preclude a writ 

of prohibition. “Unless a relator establishes a patent and unambiguous lack of 

jurisdiction, extraordinary relief in prohibition * * * will not issue, because the 

relator has an adequate remedy by appeal.” Id., citing State ex rel. Skyway Invest. 

Corp. v. Ashtabula Cty. Court of Common Pleas, 130 Ohio St.3d 220, 2011-Ohio5452, 957 N.E.2d 24, ¶ 10. 

{¶ 18} Huntington has a remedy in the ordinary course of the law in that it 

may appeal the trial court’s denial of its objection to the additional hearing and the 

taking of additional evidence once the trial court has completed the hearing, 

redetermined damages, and issued a final order. Huntington may argue at that time 

that the trial court exceeded the authority the court of appeals granted to it on 

remand. However, a writ of prohibition may issue even when there is an adequate 

remedy at law if the lack of jurisdiction is “patent and unambiguous.” Chesapeake 

Exploration at ¶ 11. 

{¶ 19} A court having general subject-matter jurisdiction can determine its 

own jurisdiction, and a party contesting that jurisdiction has an adequate remedy 

by way of appeal. State ex rel. Shumaker v. Nichols, 137 Ohio St.3d 391, 2013-

Ohio-4732, 999 N.E.2d 630, ¶ 10, citing State ex rel. Plant v. Cosgrove, 119 Ohio 

St.3d 264, 2008-Ohio-3838, 893 N.E.2d 485, ¶ 5. 
January Term, 2015 

7

{¶ 20} Nevertheless, even if the trial court has general jurisdiction over the 

matter before it, its decision to exercise jurisdiction in a particular instance can be 

contested in a prohibition action when the lack of jurisdiction in that instance is 

patent and unambiguous. See State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 

74, 701 N.E.2d 1002 (1998). Huntington argues that the trial court patently and 

unambiguously lacks jurisdiction over this action because in its order remanding 

the case, the court of appeals did not authorize the trial court to conduct a new 

evidentiary hearing on damages, but ordered only that damages be recalculated 

using the evidence already in the record at the time of the appeal. 

{¶ 21} For at least two reasons, Huntington’s argument lacks merit. First, 

Huntington interprets the court of appeals’ remand opinion excessively narrowly. 

The court of appeals both analyzed the question of the proper measure of damages, 

James, 2012-Ohio-3883, at ¶ 52-55, and examined the evidence supporting an 

award of damages, id. at ¶ 34-51. The court concluded that while James was 

eligible to receive damages for the bank’s breach of the contract, the lower court 

had used an incorrect standard for determining damages and that the record 

evidence was insufficient to establish the amount of damages. The court remanded 

the case “for further proceedings consistent with this opinion.” Id. at ¶ 61. 

{¶ 22} Huntington focuses on one statement in the opinion: “On remand, 

the trial court is to recalculate damages applying the proper measurement set forth 

in this opinion based on the evidence contained on [sic] the record.” Id. at ¶ 61. 

Huntington interprets this statement to mean that the trial court has jurisdiction to 

consider only evidence already in the record and that no further evidence may be 

taken before the trial court attempts to calculate damages. If the trial court attempts 

to take additional evidence, Huntington asserts, it will be exceeding its jurisdiction 

under the court of appeals’ remand order and violating the law-of-the-case doctrine. 

{¶ 23} However, in several places, the court of appeals found that the 

evidence in the record before it was insufficient to prove damages, even under the 
SUPREME COURT OF OHIO

8

standard it articulated. Id. at ¶ 30, 47-51, 54. The court stated, “It is unclear 

whether the difference between the funds released to [the contractor] and the actual 

value of the work completed by [the contractor] could be ascertained from the 

evidence presented,” id. at ¶ 54, and added, “while the record reflects competent 

and credible evidence to allow the trier of fact to proceed to a consideration of 

damages, the record lacks competent, credible evidence proving the damages 

awarded by the trial court to a reasonable degree of certainty under any measure of 

damages,” (emphasis sic), id. at ¶ 55, and reiterated, “the magistrate’s award of 

damages in this case is not supported by competent, credible evidence under any 

measure of damages,” id. at ¶ 60. Thus, the opinion is rife with recognition that the 

evidentiary record as it stood at the time of the remand was insufficient to determine 

the correct amount of damages under the standard that the court of appeals 

articulated. 

{¶ 24} If the court of appeals did not intend for the trial court to correct this 

deficiency in the evidentiary record, it would not have needed to remand at all; it 

could have recited the correct measure of damages, declared the evidence 

insufficient to sustain that measure, and dismissed the case. Instead, it remanded 

to the trial court for further proceedings. Given the opinion as a whole, the court 

of appeals apparently intended the trial court to do whatever was necessary, 

including holding an evidentiary hearing, to calculate damages on remand. 

{¶ 25} The trial court did not patently and unambiguously lack jurisdiction 

to order its magistrate to conduct an evidentiary hearing on damages given that the 

court of appeals’ mandate was, at best, ambiguous on the issue. We therefore affirm 

the court of appeals’ dismissal of the claim in prohibition. 

Conclusion 

{¶ 26} Because Huntington has an adequate remedy at law by way of appeal 

and because Judge Kontos’s jurisdiction to order the evidentiary hearing and to 

determine damages based on new evidence is not patently and unambiguously 
January Term, 2015 

9

lacking, we affirm the court of appeals’ dismissal of Huntington’s complaint for 

writs of prohibition and procedendo. 

Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and O’NEILL, JJ., 

concur. 

KENNEDY and FRENCH, JJ., dissent without opinion. 

_________________ 

Weston Hurd, L.L.P., and Shawn Maestle, for appellant. 

Dennis Watkins, Trumbull County Prosecuting Attorney, and William J. 

Danso, Assistant Prosecuting Attorney, for appellee. 

_________________