COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
                       COUNTY OF CUYAHOGA
                            NO. 79965
IN RE STATE OF OHIO EX REL.   :
THE OHIO LEITINA COMPANY,     :
                              :    PETITION FOR WRIT OF
          Relator             :    MANDAMUS
                              :
     -vs-                     :    JOURNAL ENTRY AND OPINION
                              :
VANDRA BROTHERS CONSTRUCTION  :
COMPANY, INC.                 :
                              :
THE HONORABLE BRIDGET M.      :
McCAFFERTY                    :
                              :
          Respondent          :
DATE OF JOURNALIZATION:       AUGUST 13, 2001
JUDGMENT:                     DISMISSED.
APPEARANCES:
For Relator:                  Owen C. Neff, Esq.
                              175 Sterncrest Drive
                              Moreland Hills, Ohio  44022
For Respondent, The:          William D. Mason, Esq.
Honorable Bridget M.          Cuyahoga County Prosecutor
McCafferty:                   BY: Charles E. Hannan, Jr., Esq.
                              Assistant County Prosecutor
                              The Justice Center   8th Floor
                              1200 Ontario Street
                              Cleveland, Ohio  44113
                               -2-
MICHAEL J. CORRIGAN, P.J.:
     On July 18,  2001, the relator, apparently the Ohio  Leitina
Company, commenced this prohibition action against the respondent,
Judge Bridget McCafferty, to prevent the respondent from proceeding
to trial in the underlying case, The Ohio Leitina Company v. Vandra
Brothers Construction, Inc.,  Cuyahoga County Common Pleas  Court
Case No. CV  429644.  For the  following reasons, this court  sua
sponte dismisses this prohibition action.
     The gravamen of the relator's complaint is that on July  17,
2001,  the  Ohio  Leitina  Company  divested  the  respondent  of
jurisdiction by  filing a notice of  appeal from the granting  of
summary judgment by the trial  court.1  However, this was only  a
partial judgment,  because the  summary judgment  motion did  not
dispose of all claims and did not contain the Civ.R. 54(B)  no just
reason for delay  language.  Thus, this court sua sponte dismissed
the appeal. (See  attached order.)  Without the requisite  appeal
pending to transfer jurisdiction from the court of common pleas to
this court, the writ of prohibition lacks its foundation and must
fail.
     Additionally, the relator improperly captioned the complaint
as In re State of Ohio ex rel. The Ohio Leitina Company v. Vandra
     1 When an appeal is pending, the trial court is divested  of
jurisdiction except to take action in aid of the appeal,  enforce
the judgment or other action not inconsistent with the  appellate
court's power to review, modify, reverse, or affirm. State ex rel.
Special Prosecutors v.  Judges, Court of Common Pleas (1978),  55
Ohio St.2d 94, 378 N.E.2d 162; Newman v. Al Castrucci ford Sales,
Inc. (1988), 54 Ohio App.3d  166, 561 N.E.2d 1001 and Vavrina  v.
Greczanik (1974), 40 Ohio App.2d 129, 318 N.E.2d 408.
                               -3-
Brothers Construction Company,  Inc.    The Honorable Bridget  M.
McCafferty Respondent.    The caption  also does not contain  the
addresses of  the parties  as  required by  Civ.R. 10(A).    This
miscaptioning causes confusion as to exactly who the relator  is,
the Leitina  Company, Vandra Brothers  or the underlying  lawsuit
itself.  Moreover, the Supreme Court of Ohio has ruled that  such
deficiencies are sufficient reason  for dismissal. State ex  rel.
Sherrills v. The  State of Ohio (2001),  91 Ohio St.3d 133,  742,
N.E.2d 651.
     Accordingly, this court  dismisses this prohibition  action.
Relator to pay costs.   The clerk is  directed to serve upon  the
parties notice of  this judgment and its  date of entry upon  the
journal. Civ.R. 58(B).
                                   ______________________________
                                        MICHAEL J. CORRIGAN
                                          PRESIDING JUDGE
TIMOTHY E. McMONAGLE, J., and
PATRICIA A. BLACKMON, J., CONCUR.
 
 
 
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