State ex rel. Steinle v. Dewey

[Cite as State ex rel. Steinle v. Dewey, 2015-Ohio-3618.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio, ex rel., Garrette P. Steinle Court of Appeals No. S-15-016
Relator
DECISION AND JUDGMENT
v.
Judge John P. Dewey Decided: September 2, 2015
Respondent
*****
Joseph F. Albrechta, John A. Coble, and George J. Schrader, for relator.
Thomas L. Stierwalt, Sandusky County Prosecuting Attorney,
and Norman P. Solze, Assistant Prosecuting Attorney, for respondent.
*****
PIETRYKOWSKI, J.
{¶ 1} This case is before the court as an original action in mandamus. Relator,
Garrette P. Steinle, requests a writ from this court ordering respondent, Judge John P.
Dewey of the Sandusky County Court of Common Pleas, to vacate his order denying
relator’s request for findings of fact pursuant to Civ.R. 56(D) and to issue findings of fact
consistent with the undisputed facts as presented in Steinle v. Steinle, Sandusky County
Common Pleas case No. 11 DR 354 (“Steinle”). Respondent has filed a motion to
dismiss.
{¶ 2} The facts as alleged in relator’s complaint are as follows. On April 5, 2011,
Julie Steinle filed a complaint for divorce against relator Garrette Steinle. That case,
Steinle, was assigned to respondent Judge John P. Dewey. On July 26, 2013, July 24,
2014 and August 14, 2014, relator filed motions for partial summary judgment in Steinle.
Julie Steinle filed a response to those motions on November 7, 2014. The matters on
which relator sought summary judgment dealt with various assets at issue in the divorce.
In particular, relator asserted that there was no genuine issue of material fact and that as a
matter of law, various assets were fully marital property, fully separate property, or co-
mingled property containing separate and pre-marital property. Relator identified
numerous assets at issue, argued for their classification as fully marital, fully separate or
co-mingled, and supported his assertions with evidence. In her response to relator’s
motions for partial summary judgment, Julie Steinle agreed with some of relator’s
classifications of property and disagreed with others. She did not support her response
with an affidavit or other evidence as delineated by Civ.R. 56(C) and (E).
{¶ 3} On November 18, 2014, respondent issued a ruling on relator’s motions for
partial summary judgment. In granting relator partial summary judgment, respondent
2.
determined that as a matter of law, ten individual items of property were fully marital
property, three items were fully separate property, and four items were co-mingled
property. Of the co-mingled properties, respondent assigned the values due relator and
Julie Steinle. Respondent then denied relator summary judgment as to his asserted
premarital interest in the marital home and his claimed separate property interest in a
Fifth Third Bank Safe Saver’s account. Respondent further denied relator summary
judgment on five business assets that relator claimed were his separate property.
Respondent noted that those properties needed to be appraised.
{¶ 4} On January 5, 2015, relator filed a Civ.R. 56(D) motion for findings of fact
in dispute. Relator asserted that he could not discern from respondent’s order granting
partial summary judgment what material facts are actually and in good faith controverted
because Julie Steinle had not submitted any facts by affidavit, deposition or sworn
statement of any kind, in opposition to the facts that relator submitted in support of his
motion for partial summary judgment. Relator than attached to his motion a list of some
138 facts on which he asserted no material dispute had been shown. Many of the “facts”
alleged by relator are statements made by various witnesses by affidavit concerning
details of the history of numerous assets requiring distribution in Steinle. Relator asserted
that because Julie Steinle did not present evidence in opposition to these statements,
respondent was required to accept them as true. Relator then asked respondent to either
find that all of the facts listed are uncontroverted or provide a list of those facts which
3.
respondent believes are in dispute. Julie Steinle responded with a motion for an order
dismissing relator’s motion for findings of fact.
{¶ 5} Respondent issued a judgment entry on March 16, 2015, denying relator’s
motion for findings of fact. Citing Civ.R. 56(D), respondent ruled that it was “‘not
practicable’ to find said 138 averments by Defendant as uncontroverted fact. Should
Defendant wish to submit said averments to Plaintiff’s counsel as a request for
admissions, he is free to do so.”
{¶ 6} Relator now comes before this court with a petition for a writ of mandamus.
Relator asks us to order respondent to vacate his judgment of March 16, 2015, and issue
findings of fact as required by law. Respondent has filed a motion to dismiss in which he
claims that because he has complied with the applicable Civil Rules, relator has no right
to mandamus. We construe this as a motion to dismiss pursuant to Civ.R. 12(B)(6).
{¶ 7} For a writ of mandamus to be granted, the relator must show that there is a
clear legal right to the relief requested, that respondent is under a clear legal duty to
perform the requested act, and that relator has no plain and adequate remedy at law. State
ex rel. Copeland v. Judges, 67 Ohio St.2d 1, 5-6, 424 N.E.2d 279 (1981). “[T]o dismiss a
complaint under Civ.R. 12(B)(6), it must appear beyond doubt that relator/plaintiff can
prove no set of facts warranting relief.” State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d
489, 490, 633 N.E.2d 1128 (1994).
4.
{¶ 8} Civ.R. 56(D) reads:
If on motion under this rule summary judgment is not rendered upon
the whole case or for all the relief asked and a trial is necessary, the court in
deciding the motion, shall examine the evidence or stipulation properly
before it, and shall if practicable, ascertain what material facts exist
without controversy and what material facts are actually and in good faith
controverted. The court shall thereupon make an order on its journal
specifying the facts that are without controversy, including the extent to
which the amount of damages or other relief is not in controversy, and
directing such further proceedings in the action as are just. Upon the trial
of the action the facts so specified shall be deemed established, and the trial
shall be conducted accordingly. (Emphasis added.)
{¶ 9} As noted above, respondent, in ruling on relator’s motion, specifically found
it “not practicable” to find that the 138 averments were uncontroverted facts. In our
view, relator’s petition is an attempt to appeal the trial court’s judgment denying his
Civ.R. 56(D) motion and/or denying him partial summary judgment on the marital home
and business assets before the case has been fully adjudicated. In the alternative, the
petition is an attempt to have this court order respondent to grant relator summary
judgment on those very same issues. Either way, relator has no right to the relief
requested and respondent is under no duty to perform the requested act. The Supreme
Court of Ohio has repeatedly held that mandamus is not a substitute for an appeal. See
5.
State ex rel. Baker v. Schiemann, 67 Ohio St.3d 443, 444, 619 N.E.2d 692 (1993); State
ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 163, 228 N.E.2d 631 (1967).
Moreover, the denial of a motion for summary judgment is not a final appealable order.
State ex rel. Overmyer v. Walinski, 8 Ohio St.2d 23, 222 N.E.2d 312 (1966). Relator
cannot avoid these firmly established rules of appellate jurisprudence through the filing
of a mandamus action under the circumstances presented herein.
{¶ 10} Accordingly, because relator can prove no set of facts entitling him to
relief, respondent’s motion to dismiss the complaint in mandamus is found well-taken
and is granted. All other pending motions are hereby rendered moot. Costs of these
proceedings are assessed to relator.
Writ dismissed.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
6.