Pankey v. Mahoning Cty. Court of Common Pleas

[Cite as Pankey v. Mahoning Cty. Court of Common Pleas, 2013-Ohio-1617.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
BENJAMIN R. PANKEY ) CASE NO. 13 MA 27
)
RELATOR )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
MAHONING COUNTY COURT )
OF COMMON PLEAS )
)
RESPONDENT )
CHARACTER OF PROCEEDINGS: Motion for Writ of Procedendo
JUDGMENT: Dismissed.
APPEARANCES:
For Relator: Benjamin R. Pankey, Pro se
6476 Poplar Avenue
Hubbard, Ohio 44425
For Respondent: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: April 18, 2013
[Cite as Pankey v. Mahoning Cty. Court of Common Pleas, 2013-Ohio-1617.]
PER CURIAM.
{¶1} Pro se Relator Benjamin R. Pankey has filed a motion for a writ of
procedendo against Respondent Mahoning County Court of Common Pleas
regarding a civil declaratory judgment action pending in the court of common pleas.
The underlying declaratory judgment action appears to be an attempt to resolve
matters relating to Relator's sexual offender status arising from his convictions for
rape and armed robbery in 1973. Relator would like us to order the court of common
pleas to immediately render final judgment in the declaratory judgment action.
Respondent has filed an answer and a motion to dismiss. We hereby dismiss as
frivolous Relator’s request for a writ of procedendo.
{¶2} “ ‘The writ of procedendo is merely an order from a court of superior
jurisdiction to one of inferior jurisdiction to proceed to judgment. It does not in any
case attempt to control the inferior court as to what that judgment should be.’ ” State
ex rel. Hansen v. Reed, 63 Ohio St.3d 597, 600, 589 N.E.2d 1324 (1992), quoting
State ex rel. Davey v. Owen, 133 Ohio St. 96, 106, 12 N.E.2d 144 (1937). To be
entitled to a writ of procedendo, “a relator must establish a clear legal right to require
the court to proceed, a clear legal duty on the part of the court to proceed, and the
lack of an adequate remedy in the ordinary course of law.” State ex rel. Miley v.
Parrott, 77 Ohio St.3d 64, 65, 671 N.E.2d 24 (1996). “[P]rocedendo is an
extraordinary remedy which is to be exercised with caution and only when the right is
clear. It should not be used in doubtful cases.” State ex rel. Porter v. Jensen, 6th
Dist. No. L-12-1281, 2012-Ohio-5556, ¶2.
{¶3} “A writ of procedendo is appropriate when a court has either refused to
render a judgment or has unnecessarily delayed proceeding to judgment.” State ex
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rel. Weiss v. Hoover, 84 Ohio St.3d 530, 532, 705 N.E.2d 1227 (1999).
Nevertheless, “neither procedendo nor mandamus will generally issue to compel a
court to release its decisions promptly.” State ex rel. Nalls v. Russo, 96 Ohio St.3d
410, 2002-Ohio-4907, 775 N.E.2d 522, ¶31.
{¶4} At the outset, we must point out that Relator has failed to properly
initiate an action in procedendo. According to Civ.R. 3(A), a party must file a
complaint and obtain service within one year in order to initiate a civil proceeding.
Relator attempted to initiate this action by filing a motion, and a motion is not a
complaint. The Ninth District Court of Appeals has held:
For the purposes of Civ.R. 3(A), the filing of a motion cannot substitute
for the filing of a complaint. The Second Appellate District Court has
explained that “Civ.R. 7 distinguishes a pleading from a motion. ‘Under
Civ.R. 7(A), only complaints, answers and replies constitute pleadings.’
” (Emphasis original.) State v. Wilkins (1998), 127 Ohio App.3d 306,
310, 712 N.E.2d 1255, dismissed (1999), 85 Ohio St.3d 1213, 709
N.E.2d 169, quoting State ex rel. Hanson v. Guernsey Cnty. Comrs.
(1992), 65 Ohio St.3d 545, 549, 605 N.E.2d 378. A complaint is a
pleading that need only contain a short and plain statement of the claim
showing that the party is entitled to relief. Civ.R. 8(A)(1). Where as a
“motion” is defined as an application to the court for an order. Civ.R.
7(B)(1). A motion is not a pleading. State Edison Co. v. Oehler (Oct. 4,
1995), 9th Dist. No. 17167, at 9, appeal not allowed (1996), 75 Ohio
St.3d 1405. Thus, in the context of this case, a party cannot initiate an
action by filing a motion. See Civ.R. 7(A) (stating that the only
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pleadings allowed to be filed with the court are: a complaint, an answer,
a reply to a counterclaim, an answer to a cross-claim, a third-party
complaint, a third-party answer, or a court-ordered reply to an answer
or third-party answer).
Martin v. Wayne Cty. Natl. Bank Trust, 9th Dist. No. 03CA0079, 2004-Ohio-4194,
¶12.
{¶5} Relator's failure to properly initiate a cause in procedendo is a sufficient
reason to deny the requested writ.
{¶6} We also note that Relator has failed to name the appropriate
respondent. He has generally named the Mahoning County Court of Common Pleas
as the defendant, rather than the judge presiding over his declaratory judgment
action. In another procedendo case involving Relator, he was informed that:
A court is not sui juris. “A court is defined to be a place in which justice
is judicially administered. It is the exercise of judicial power, by the
proper officer or officers, at a time and place appointed by law.” Todd
v. United States (1895), 158 U.S. 278, 284, 15 S.Ct. 889, 891, 39 L.Ed.
982. Absent express statutory authority, a court can neither sue nor be
sued in its own right. State ex rel. Cleveland Municipal Court v.
Cleveland City Council (1973), 34 Ohio St.2d 120, 296 N.E.2d 544. For
this reason, the requested writ is also denied.
Pankey v. Court of Common Pleas, 5th Dist. No. 10CA19, 2010-Ohio-1212, ¶9.
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{¶7} We agree with the Fifth District Court of Appeals that Relator’s failure to
name the appropriate defendant also provides sufficient grounds for dismissing the
request for a writ of procedendo.
{¶8} Relator alleges that his declaratory judgment action was filed in April of
2012. Relator acknowledges that there was a hearing in the civil action as recently
as December 20, 2012, and there was a prior hearing in October. He notes that he
has been regularly filing motions since the December hearing, each of which the
court must presumably act on before releasing any sort of final judgment in the case,
thus causing further delay in the case. He cites no law or precedent, other than his
own impatience, as to what constitutes undue delay in rendering a final judgment in a
declaratory judgment action. Relator further notes, with some audacity, that he has
recently filed a document in the declaratory judgment action captioned “A Motion in
Procedendo would be a waste of the 7th District Court’s time.” We are in full
agreement with Relator on this point. Relator is apparently aware that his request for
a writ of procedendo is frivolous. We dismiss the motion for writ of procedendo for all
the reasons cited above.
{¶9} Costs taxed to Relator. Final order. Clerk to serve notice as provided
by the Civil Rules.
Waite, J., concurs.
Donofrio, J., concurs.
Vukovich, J., concurs.