State ex rel. Neff v. Corrigan , 75 Ohio St. 3d 12 ( 1996 )

Wright, J.,

concurring in part and dissenting in part. Although I join with the court in the bulk of its opinion, I respectfully dissent from the portion that addresses Neffs petition for mandamus to correct the journal entries of the probate court. The court of appeals erroneously dismissed this petition on a Civ.R. 12(B)(6) motion, in spite of the deference that procedural device affords nonmoving parties.

The majority bases its disposition of this issue on two questionable grounds. First, it incorrectly suggests that this court’s decision in State ex rel. Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 551 N.E.2d 183, is inapplicable to the matter at hand, while stating that Worcester ought to be limited to its facts. Despite careful review of the court’s opinion, I have been unable to find any support for either of these conclusions.

Second, the majority asserts that mandamus was inappropriate in this matter because Neff possessed an adequate remedy at law, a Civ.R. 60(B)(5) motion for relief from judgment. However, such a motion offers no relief to Neff because neither of the journal entries Neff wishes to correct is “a final judgment, order or proceeding” subject to review under Civ.R. 60(B). Consequently, there is no adequate remedy at law available to Neff. In light of this consideration, as well as those I have outlined above, we should reverse the court of appeals’ decision on this narrow issue.