State ex rel. Davet v. Sutula , 131 Ohio St. 3d 220 ( 2012 )

[Cite as State ex rel. Davet v. Sutula, 131 Ohio St.3d 220, 2012-Ohio-759.]
THE STATE EX REL. DAVET, APPELLANT, v. SUTULA, JUDGE, APPELLEE.
[Cite as State ex rel. Davet v. Sutula, 131 Ohio St.3d 220, 2012-Ohio-759.]
Civil procedure—Appellate courts—App.R. 26—Reconsideration inapplicable to
original actions—Rehearing en banc properly denied for nondispositive
issue.
(No. 2011-1506—Submitted February 22, 2012—Decided February 29, 2012.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 96548, 2011-Ohio-2803.
__________________
Per Curiam.
{¶ 1} We affirm the judgment denying the application of appellant,
Richard F. Davet, for reconsideration of the dismissal of his complaint for a writ
of prohibition to prevent appellee, Cuyahoga County Court of Common Pleas
Judge Kathleen Ann Sutula, from issuing any further orders in a foreclosure
action and for a writ of mandamus to compel Judge Sutula to vacate all orders,
entries, and other process issued in the case. Davet’s motion was “a nullity
because his [prohibition] action was filed originally in the court of appeals,
rendering App.R. 26(A) inapplicable.” See State ex rel. Washington v. Crush, 106
Ohio St.3d 60, 2005-Ohio-3675, 831 N.E.2d 432, ¶ 5; see also App.R. 26(A)(1)
(detailing the procedure for applications for reconsideration “of any cause or
motion submitted on appeal” filed in courts of appeals [emphasis added]).
{¶ 2} We also affirm the judgments of the court of appeals denying
Davet’s applications for en banc consideration and to certify a conflict to this
court. Any conflict concerning the issue of standing in a foreclosure action
recognized by the court of appeals in its decision dismissing Davet’s complaint
for writs of prohibition and mandamus was not dispositive of the case, because
SUPREME COURT OF OHIO
the court of appeals held that he had an adequate remedy in the ordinary course of
law by way of appeal, and this remedy rendered relief through an original action
inappropriate. 8th Dist. No. 96548, 2011-Ohio-2803, ¶ 9; see also App.R.
26(A)(2) (“Consideration en banc is not favored and will not be ordered unless
necessary to secure or maintain uniformity of decisions within the district on an
issue that is dispositive in the case in which the application is filed”).
{¶ 3} The court of appeals did not need to address the merits of Davet’s
jurisdictional claim—and it did not—because its jurisdiction in the writ case was
“limited to determining whether jurisdiction is patently and unambiguously
lacking.” State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754,
881 N.E.2d 224, ¶ 12.
{¶ 4} Davet’s notice of appeal, filed here on September 1, 2011, also
appealed from the court of appeals’ dismissal of his complaint on June 7, 2011.
This portion of his appeal, on the merits of the dismissal itself, is dismissed as
having been untimely filed.
Appeal dismissed in part
and judgments affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Richard F. Davet, pro se.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Charles
E. Hannan, Assistant Prosecuting Attorney, for appellee.
_____________________
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