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State11/23/2005
{ } The relators, Cheryl Austin and Metrohealth Medical Center, have filed a complaint for a writ of mandamus. The relators seek an order from this court which requires the respondent, Judge John D. Sutula, to order the referral of the underlying action of Austin v. Metrohealth Medical Center, Cuyahoga County Court of Common Pleas Case No. CV-538701, for a jury trial before a voluntarily retired judge pursuant to R.C. 2701.10. The respondent has filed a motion to dismiss which we grant for the following reasons.
{ } The following facts, which are pertinent to this opinion, are gleaned from the relators' complaint for a writ of mandamus, the relators' application for an alternative writ of mandamus, the respondent's motion to dismiss, and the relators' brief in opposition to the motion to dismiss. On August 16, 2004, relator-Austin filed a complaint with a jury demand, grounded in medical malpractice, against relator-Metrohealth Medical Center in the Cuyahoga County Court of Common Pleas. The respondent was assigned to handle all court activity, including motions, emergency matters, case management conferences, pretrials, trials, and any post-trial matters associated with the cases assigned to the docket. See Loc.R. 15 of the Court of Common Pleas of Cuyahoga County, General Division. On September 26, 2005, the relators filed an "agreement for referral for submission to retired Judge pursuant to R.C. 2701.10" with the Clerk of the Cuyahoga County Court of Common Pleas. The agreement for referral, as executed between the relators, provided in pertinent part that:
1. Plaintiff(s) Cheryl Austin, Adm. and Defendant(s) MetroHealth Medical Center do hereby agree that this case shall be transferred to Judge Peggy Foley Jones, a Retired Judge, who shall: * * * a. Hear and determine all issues of law and fact which may hereafter arise in this case, preside over a jury which will receive evidence and render a judgment adjudicating the action or proceeding in its entirety, including all post-trial proceedings, if any. * * *
2. The parties agree to assume the responsibility for providing all facilities, equipment, and personnel reasonably deemed necessary by Judge Jones during her consideration of the action or proceeding referred, or the issue(s) or question(s) submitted, and agree to pay all costs arising out of the provision of facilities, equipment and personnel, if necessary.
3. The parties agree to pay the sum of $300 per hour plus all reasonable expenses incurred incident to the conduct of the proceedings. Payment of all amounts due and owing to Judge Jones for her services shall be made at such times and in such amounts, as the parties and Judge Jones may agree upon. * * *
{ } On October 13, 2005, the respondent entered an order which rejected the relators' written agreement to submit the pending medical malpractice action to a voluntarily retired judge. The respondent's order of October 13, 2005, provided that:
The proposed agreement for referral to a private judge does not comply with section 2701.10 of the Revised Code and will not be validated by this court, as the agreement does not call for the private judge as the said section requires, to try all of the issues of the proceeding; but rather orders trial by a jury, which is in direct conflict with said statute. Further, the fees to be paid the private judge are excessive and unreasonable. Trial will proceed as scheduled on October 26, 2005 at 9:00 AM.
{ } On October 20, 2005, the relators filed a "verified complaint for a writ of mandamus" as well as a "motion for alternative writ with request for expedited disposition." On October 25, 2005, this court granted the
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