State ex rel. Charvat v. Frye, 2006-2275.
| Decision Date | 27 June 2007 |
| Docket Number | No. 2006-2275.,2006-2275. |
| Citation | 2007 Ohio 2882,114 Ohio St.3d 76,868 N.E.2d 270 |
| Parties | The STATE ex rel. CHARVAT, Appellee, v. FRYE, Judge, Appellant, et al. |
| Court | Ohio Supreme Court |
Ferron & Associates, L.P.A., John W. Ferron, Columbus, and Lisa A. Wafer, for appellee.
Ron O'Brien, Franklin County Prosecuting Attorney, and Robert E. Williams and Patrick J. Piccininni, Assistant Prosecuting Attorneys, for appellant.
{¶ 1} This is an appeal from a judgment granting a writ of procedendo to compel a common pleas court judge to proceed in a civil case. Because the judge erroneously stayed the case, we affirm the judgment of the court of appeals.
{¶ 2} Appellee, Philip J. Charvat, resides with his family at their home in Westerville, Ohio. In 2004, Charvat received telemarketing calls for satellite transmission services that were made on behalf of Dish TV Now, Inc. ("Dish TV") and Echostar Satellite, L.L.C. ("Echostar"). According to Charvat, each of these telephone calls began with a prerecorded message, and no one in his family had given the callers express permission to place the calls.
{¶ 3} In 2004, Charvat filed a complaint in the Franklin County Court of Common Pleas against Dish TV and other entities. The case was assigned to appellant, Judge Richard A. Frye, of the common pleas court. In his second amended complaint, Charvat sought money damages, a declaratory judgment, and injunctive relief against Dish TV and Echostar for alleged violations of the Telephone Consumer Protection Act of 1991, Section 227, Title 47, U.S.Code, the Ohio Consumer Sales Practices Act, R.C. Chapter 1345, and administrative rules adopted pursuant to those laws for the nine telemarketing calls made on behalf of Dish TV and Echostar to the Charvat home in 2004. Charvat set forth 66 counts in the second amended complaint. In December 2005, Judge Frye denied Charvat's motion for partial summary judgment and dismissed Charvat's 66th cause of action.
{¶ 4} On December 16, 2005, Judge Frye issued a journal entry ordering Charvat to show cause why the case should not be stayed until Charvat submits an affidavit attesting that he has registered his telephone numbers on the national do-not-call registry.
{¶ 5} Charvat submitted a timely response to Judge Frye's show-cause order in which he specified by affidavit that (1) he had not registered either of his home telephone numbers with the national do-not-call registry, (2) he did not intend to register his telephone numbers on the national do-not-call registry in the future, and (3) he did not oppose all forms of telemarketing; e.g., he welcomed telemarketing calls concerning life insurance, school products, and market research.
{¶ 6} On December 28, 2005, Judge Frye stayed the case and removed it from the active docket. Judge Frye noted that the case would be returned to the court's active docket if Charvat registered his home telephone numbers on the national do-not-call list.
{¶ 7} Shortly thereafter, Charvat filed a petition in the Court of Appeals for Franklin County for a writ of procedendo to compel Judge Frye "to proceed to schedule and preside over a jury trial" in the civil case. The court of appeals granted the writ.
{¶ 8} In his appeal as of right, Judge Frye asserts that the court of appeals erred in granting the writ of procedendo.
{¶ 9} Before addressing the merits of Judge Frye's appeal, we briefly consider Charvat's motion to dismiss this appeal.
{¶ 10} Charvat asserts that Judge Frye's proposition of law does not comply with S.Ct.Prac.R. VI(2)(B)(4), which requires that an appellant's merit brief contain
{¶ 11} Judge Frye's proposition arguably fails to contain the facts that he alleges compel the conclusion that the court of appeals erred in determining that he abused his discretion in staying the underlying case. Nevertheless, the judge's brief includes headings and subheadings to his proposition of law that presented the legal issues in this case in a sufficient, concise manner. See State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 23 ().
{¶ 12} Therefore, we deny Charvat's motion to dismiss this appeal, because Judge Frye sufficiently complied with S.Ct.Prac.R. VI(2)(B)(4).
{¶ 13} To be entitled to the requested writ of procedendo, Charvat was required to establish (1) a clear legal right to have Judge Frye proceed to the merits and try Charvat's civil case and (2) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Weiss v. Hoover (1999), 84 Ohio St.3d 530, 531-532, 705 N.E.2d 1227. Judge Frye does not contend that Charvat has an adequate remedy in the ordinary course of law to challenge the indefinite stay of the civil case, so the dispositive issue is whether Charvat established the remaining requirement for the writ.
{¶ 14} We have held that " `[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 rel. CNG Financial Corp. v. Nadel, 111 Ohio St.3d 149, 2006-Ohio-5344, 855 N.E.2d 473, ¶ 20, quoting Weiss, 84 Ohio St.3d at 532, 705 N.E.2d 1227. A lower court's refusal or failure to timely resolve a pending case is the error that procedendo was created to rectify. See, e.g., State ex rel. Rodak v. Betleski, 104 Ohio St.3d 345, 2004-Ohio-6567, 819 N.E.2d 703, ¶ 16.
{¶ 15} More pertinently, the requirements for a writ of procedendo are met if a judge erroneously stays a proceeding. State ex rel. Watkins v. Eighth Dist. Court of Appeals (1998), 82 Ohio St.3d 532, 535, 696 N.E.2d 1079 ().
{¶ 16} "The determination of whether to issue a stay of proceedings generally rests within the court's discretion and will not be disturbed absent a showing of an abuse of discretion." State ex rel. Verhovec v. Mascio (1998), 81 Ohio St.3d 334, 336, 691 N.E.2d 282. A court abuses its discretion, however, when it acts in an unreasonable, arbitrary, or unconscionable manner. State ex rel. Worrell v. Ohio Police & Fire Pension Fund, 112 Ohio St.3d 116, 2006-Ohio-6513, 858 N.E.2d 380, ¶ 10.
{¶ 17} Judge Frye stayed Charvat's civil case, which alleged violations of the Telephone Consumer Protection Act of 1991 ("TCPA") and the Ohio Consumer Sales Practices Act ("CSPA"), unless and until Charvat registers his home telephone numbers on the national do-not-call list. For the following reasons, Judge Frye abused his discretion by doing so.
{¶ 18} We have already observed that "[i]n response to the burgeoning use of telephone solicitations to market goods and services in the United States, and the concomitant frustration of the American public, Congress passed the TCPA in 1991." Charvat v. Dispatch Consumer Servs., Inc., 95 Ohio St.3d 505, 2002-Ohio-2838, 769 N.E.2d 829, ¶ 18. The TCPA "places restrictions on using automatic dialers and prerecorded messages for telemarketing; it also prohibits sending advertisements by fax." Annotation, Validity Construction and Application of Telephone Consumer Protection Act (47 U.S.C.A. § 227) (1996), 132 A.L.R.Fed. 625, 1996 WL 593629. More pertinently to Charvat's claims in his underlying civil case, the TCPA generally prohibits telemarketers from initiating "any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party." Section 227(b)(1)(B), Title 47, U.S.Code. The TCPA also authorized the Federal Communications Commission ("FCC") to establish a national do-not-call list. Section 227(c)(3), Title 47, U.S.Code.
{¶ 19} In 2003, the FCC and the Federal Trade Commission ("FTC") adopted rules that created the national do-not-call registry. See Section 64.1200(c)(2), Title 47, C.F.R., and Section 310.4(b)(1)(iii)(B), Title 16, C.F.R. "The national do-not-call registry is a list containing the personal telephone numbers of telephone subscribers who have voluntarily indicated that they do not wish to receive unsolicited calls from commercial telemarketers." Mainstream Marketing Servs., Inc. v. Federal Trade Comm. (C.A.10, 2004), 358 F.3d 1228, 1234. "Before the 2003 amendments, both the FCC and the FTC had only a company specific do-not-call regulation, meaning that it was up to the consumer to request each individual telemarketer not to call them again." Pridgen, Consumer Protection and the Law (2006), Section 12:51.
{¶ 20} As specified by the FCC in adopting the do-not-call registry, the commission provided consumers with several options to control telemarketing calls:
{¶ 21} In re Rules...
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