State ex rel. Boardwalk Shopping Center, Inc. v. Court of Appeals for Cuyahoga County

• Decision Date: 12 December 1990
• Docket Number: No. 90-413,90-413
• Citation: 564 N.E.2d 86,56 Ohio St.3d 33
• Parties: The STATE, ex rel. BOARDWALK SHOPPING CENTER, INC. et al., v. COURT OF APPEALS FOR CUYAHOGA COUNTY.
• Court: Ohio Supreme Court

Page 33

56 Ohio St.3d 33

564 N.E.2d 86

The STATE, ex rel. BOARDWALK SHOPPING CENTER, INC. et al., v. COURT OF APPEALS FOR CUYAHOGA COUNTY.

No. 90-413.

Supreme Court of Ohio.

Submitted Aug. 29, 1990.

Decided Dec. 12, 1990.

In their complaint for a writ of mandamus, relators, Boardwalk Shopping Center, Inc. et al., state that they were plaintiffs in a civil action in the Court of Common Pleas of Cuyahoga County in which intervenor, Midwestern Indemnity Company ("Midwestern"), was the defendant; that final judgment was entered in the action effective September 14, 1989; that they filed a notice of appeal with the trial court on September 22, 1989; and that the respondent, Court of Appeals for Cuyahoga County, dismissed the appeal as untimely and has refused a request to reinstate it. They request a writ of mandamus to compel respondent to accept the appeal as of right.

In its motion to dismiss or, alternatively, for summary judgment, respondent introduces evidence that the September 14, 1989 judgment of the court of common pleas was a sham because the trial court had previously granted summary judgment for Midwestern, effective July 6, 1989, and the September 14 entry merely vacated the earlier judgment and then reinstituted the same judgment that same date. If the July 6 judgment was final, then relators' notice of appeal, filed on September 22, 1989, came too late under App.R. 4(A).

Midwestern has filed a motion to intervene as of right and by permission, and a motion to dismiss the complaint. Relators have filed a memorandum in opposition to intervention and a motion to strike Midwestern's motion to dismiss.

Sanford I. Atkin, Cleveland, for relators.

John T. Corrigan, Pros. Atty., and Colleen C. Cooney, for respondent.

Reminger & Reminger Co., L.P.A., and Robert D. Warner, Cleveland, for intervenor Midwestern Indem. Co.

PER CURIAM.

First, we grant Midwestern's motion to intervene and overrule relators' motion to strike. See Ohio Dept. of Adm. Serv., Office of Collective Bargaining v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48, 562 N.E.2d 125. Second, since respondent's motion presents evidence outside the pleadings, we treat it as a motion for summary judgment, which we hereby grant.

Relators' action is in mandamus. They must therefore establish that they have a clear legal right to relief prayed for, that respondent is under a clear legal duty to perform the act requested, and that there is no plain and adequate remedy in the ordinary course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50, 451 N.E.2d 225. They have established none of these elements.

Relators argue that appeal of respondent's dismissal of the underlying action was not an adequate remedy because the respondent's October 13, 1989 order dismissing the appeal was not discovered until December 26, 1989, owing to the untimely death of relators' attorney in early October 1989. By December 26, the time for appeal to this court had expired. Relators also argue that appeal to this court is merely a discretionary matter and is therefore inadequate.

In State, ex rel. Wisner, v. Judges (1948), 149 Ohio St. 458, 37 O.O. 124, 78 N.E.2d 900, we denied a requested writ of mandamus to compel a court of appeals to correct a bill of exceptions, stating:

"The relator has availed himself of an adequate ordinary remedy at law [appeal to this court]. Therefore, the demurrer to the petition is sustained and a writ of mandamus denied." 149 Ohio St. at 459, 37 O.O. at 124, 78 N.E.2d at 901.

Later cases have sustained this principle in the context of appeals by the prosecution in criminal cases "by leave of court" under R.C. 2945.67, holding that such discretionary appeals are adequate remedies that will prevent issuance of both writs of mandamus and prohibition. See State, ex rel. Corrigan, v. Griffin (1984), 14 Ohio St.3d 26, 14 OBR 328, 470 N.E.2d 894; State, ex rel. Cleveland, v. Calandra (1980), 62 Ohio St.2d 121, 16 O.O.3d 143, 403 N.E.2d 989; and State, ex rel. Zoller, v. Talbert (1980), 62 Ohio St.2d 329, 16 O.O.3d 391, 405 N.E.2d 724. Moreover, in Calandra, we stated that "[u]ntil leave to appeal is sought and denied, a remedy in the ordinary course of law exists which is adequate to afford the review the appellant herein seeks." Id., 62 Ohio St.2d at 122-123, 16 O.O.3d at 144, 403 N.E.2d at 990.

Further, appeal is not an inadequate remedy because relator has allowed the time for appeal to expire. "It is firmly established that the writ of mandamus will not issue ' * * * where the relator has or had available a clear, plain and adequate remedy in the ordinary course of law.' " (Emphasis added.) Berger, supra, 6 Ohio St.3d at 30, 6 OBR at 51, 451 N.E.2d at 227 and cases cited therein. Relators could have filed a motion to certify the record instanter and offered proof that the death of their attorney of record prevented a timely appeal. Accordingly, we find that relators had a plain and adequate remedy in the ordinary course of law.

In its motion for summary judgment, respondent introduces evidence that the trial court granted summary judgment for Midwestern, effective July 6, 1989, then vacated that judgment, effective September 14, 1989, but reinstituted the same decision in a new judgment entry, also effective September 14. Relators explain their version of these events in their memorandum in opposition to respondent's motion for summary judgment. They state that Midwestern originally filed in the underlying action a motion for summary judgment, which was overruled on August 10, 1988; that the case was set for trial on June 2, 1989; that at about that time counsel for relators was forced to resign from the case because he might have to be a witness; and that Midwestern then filed a motion to reconsider its motion for summary judgment on June 15, 1989, which the trial court then granted, effective July...