State Ex Rel. New Concept Housing, Inc. v. Metz

[Cite as State ex rel. New Concept Hous., Inc. v. Metz, 123 Ohio St. 3d 457, 2009-Ohio-5862.]
THE STATE EX REL. NEW CONCEPT HOUSING, INC., ET AL., APPELLANTS, v.
METZ, JUDGE, APPELLEE.
[Cite as State ex rel. New Concept Hous., Inc. v. Metz,
123 Ohio St. 3d 457, 2009-Ohio-5862.]
Procedendo — Adequate remedy by way of appeal precludes writ.
(No. 2009-0926 — Submitted November 4, 2009 — Decided
November 10, 2009.)
APPEAL from the Court of Appeals for Hamilton County, No. C-080986.
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Per Curiam.
{¶ 1} We affirm the judgment denying the petition of appellants, New
Concept Housing, Inc., and George B. Stewart, for a writ of procedendo to
compel appellee, a Hamilton County Court of Common Pleas judge, to issue a
declaratory judgment concerning certain matters and to resolve all matters
discussed in a prior appeal in the same case.
{¶ 2} Appellants had an adequate remedy to raise their contentions by
way of appeal from the common pleas court’s June 10, 2008 judgment that they
challenge, and, in fact, they did so. See New Concept Hous., Inc. v. United Dept.
Stores, Hamilton App. No. C-080504, 2009-Ohio-2259. “[P]rocedendo is not
appropriate when the party seeking the writ has an adequate remedy in the
ordinary course of law, e.g., appeal.” State ex rel. Bd. of State Teachers
Retirement Sys. of Ohio v. Davis, 113 Ohio St. 3d 410, 2007-Ohio-2205, 865
N.E.2d 1289, ¶ 43.
{¶ 3} The trial court’s declaratory judgment was a final, appealable order
because it affected the substantial rights of the parties, resolved the pertinent
issues, and did not contemplate further action. Cf. id. at ¶ 45; see also Gen. Acc.
SUPREME COURT OF OHIO
Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St. 3d 17, 540 N.E.2d 266,
paragraph two of the syllabus (“A declaratory judgment action is a special
proceeding pursuant to R.C. 2505.02 and, therefore, an order entered therein
which affects a substantial right is a final appealable order”).
{¶ 4} Insofar as appellants argued that the common pleas court judge had
failed to comply with a decision of the court of appeals in a prior appeal, that
same appellate court’s denial of their procedendo claim and affirmance of the trial
court’s June 2008 declaratory judgment established otherwise. See State ex rel.
Pyle v. Bessey, 112 Ohio St. 3d 119, 2006-Ohio-6514, 858 N.E.2d 383, ¶ 12 (“The
court of appeals was in the best position to determine whether Judge Bessey
violated its mandate in Pyle I, and it concluded that he had not done so by
affirming the judgment in Pyle II and dismissing Pyle’s writ action”).
Judgment affirmed.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
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Gonzalez, Saggio & Harlan, L.L.P., Robert R. Furnier, and Rasheed A.
Simmonds; and Taft, Stettinius & Hollister, L.L.P., and John B. Nalbandian, for
appellants.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J.
Schaeffer, Assistant Prosecuting Attorney, for appellee.
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