State ex rel. Hastings Mut. Ins. Co. v. Merillat, 89-502

• Decision Date: 18 April 1990
• Docket Number: No. 89-502,89-502
• Parties: The STATE, ex rel. HASTINGS MUTUAL INSURANCE COMPANY, Appellant, v. MERILLAT, Fulton County Sheriff, Appellee.
• Court: Ohio Supreme Court

Page 152

50 Ohio St.3d 152

553 N.E.2d 646

The STATE, ex rel. HASTINGS MUTUAL INSURANCE COMPANY, Appellant, v. MERILLAT, Fulton County Sheriff, Appellee.

No. 89-502.

Supreme Court of Ohio.

Submitted Nov. 14, 1989.

Decided April 18, 1990.

Syllabus by the Court

1. A writ of mandamus will not lie where the relator has a plain and adequate remedy in the ordinary course of the law by way of appeal. (State, ex rel. Pressley, v. Indus. Comm. [1967], 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, paragraph three of the syllabus, approved and followed.)

2. The granting of a Civ.R. 26(B) motion to quash a subpoena duces tecum issued pursuant to Civ.R. 30(B) is subject to review by way of appeal. Accordingly, the party opposing the motion may not seek to obtain identical relief collaterally through the institution of a separate action in mandamus brought pursuant to R.C. 149.43(C).

On December 19, 1985, relator-appellant, Hastings Mutual Insurance Company, issued a policy of insurance to Sharon and Elvira Ramirez providing coverage for accidental bodily injuries sustained by persons upon the insured premises, or caused by the insured or residents of the insured's household. On April 5, 1986, Sharon L. Ramirez sustained injuries resulting in her death.

On May 2, 1986, Luis Ramirez, the husband of Sharon Ramirez, was indicted by a Fulton County Grand Jury on one count of murder and one count of involuntary manslaughter in the death of Sharon Ramirez. Ramirez subsequently pled guilty to involuntary manslaughter on July 21, 1986. On September 18, 1986, he was sentenced to a term of incarceration of not less than eight nor more than twenty-five years. He is currently incarcerated in the Chillicothe Correctional Institute.

On or about April 30, 1987, Ronald Hartman, as administrator of the estate of Sharon Ramirez, instituted an action against Luis Ramirez in the Court of Common Pleas of Fulton County for intentionally or negligently causing the death of Sharon Ramirez. (Case No. 23782.) Thereafter, Luis Ramirez served a demand upon appellant to enter the action, provide him with a defense thereto and pay any judgment that may arise therefrom.

In response, appellant, on July 13, 1987, instituted a declaratory judgment action in the Court of Common Pleas of Fulton County against the administrator and Luis Ramirez seeking a determination that the death of Sharon Ramirez was the result of the intentional rather than negligent acts of Luis Ramirez. (Case No. 23919.) On or about January 8, 1988, appellant issued a subpoena duces tecum to appellee commanding him to appear for deposition and to bring "all notes, memoranda, records, investigative reports, correspondence, witness statements, etc. relating to * * * [the] investigation of the death of Sharon L. Ramirez on or about April 5, 1986." On January 22, 1988, appellee filed a motion to quash the subpoena on the basis that the requested documents were "obtained as part of an official criminal investigation and in anticipation of prosecution of the 'murderer' " and "were compiled for the use of the prosecuting attorney for presentment of the case to the grand jury in the prosecution of Luis Ramirez."

On March 3, 1988, the common pleas court, having previously consolidated case Nos. 23782 and 23919, granted the motion to quash. The determination was subsequently appealed to the court of appeals. On August 17, 1988, the court of appeals, relying upon the decision of this court in Klein v. Bendix-Westinghouse Auto. Air Brake Co. (1968), 13 Ohio St.2d 85, 87, 42 O.O.2d 283, 284, 234 N.E.2d 587, 589, concluded that it was without jurisdiction to entertain the appeal since the discovery order was interlocutory in nature. On October 3, 1988, appellant filed a second subpoena duces tecum seeking the documents which were the subject of appellant's prior demand. Pursuant to an oral motion by counsel for appellee, the common pleas court, on November 2, 1988, quashed the subpoena.

On December 8, 1988, appellant instituted the present mandamus action against appellee in the Court of Appeals for Fulton County seeking disclosure of the documents to which the subpoenas duces tecum had previously been directed. On January 26, 1989, the court of appeals denied the writ and dismissed the complaint--concluding that appellant possessed an adequate remedy at law by way of appeal and that the requested relief was not available because the documents sought were confidential law enforcement investigatory records or trial preparation records exempt from public disclosure pursuant to R.C. 149.43(A)(1).

The cause is now before this court upon an appeal as of right.

Neipp & Wingart Co., L.P.A., William H. Bracy and Kathleen W. Striggow, Toledo, for appellant.

William B. Swigart, Pros. Atty., for appellee.

SWEENEY, Justice.

Appellant contends that the court of appeals erred in concluding that the records at issue in the case sub judice were subject to the exceptions to public disclosure contained in R.C. 149.43(A)(1). Appellant further maintains that, irrespective of the ultimate determination regarding disclosure of all or part of the records, the appellate court was required to conduct an in camera review of the documents and determine on an individual basis which materials were exempt from disclosure and which were not.

We conclude, however, that these issues are not properly presented for our review. Given the current procedural context, a writ of mandamus is an inappropriate vehicle by which to gain access to the records in question.

In State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, this court recognized that a writ of mandamus will not lie where the relator has a plain and adequate remedy in the ordinary course of the law by way of appeal.

A writ of mandamus brought pursuant to R.C. 149.43 is no different from writs authorized under other provisions of law and is subject to the same limitations. In State, ex rel IScanlon v. Deters (1989), 45 Ohio St.3d 376, 544 N.E.2d 680, we held in paragraph one of the syllabus:

"A relator in a mandamus action seeking production of documents pursuant to R.C. 149.43 is required, as are relators in other mandamus actions, to show the absence of an adequate alternative to issuing the writ."

As recognized in Pressley, supra, appellate review constitutes an adequate remedy at law such as to preclude the employment of a writ of mandamus to obtain identical relief. Moreover, a remedy will not be deemed inadequate merely because it may be less convenient than resort to an extraordinary writ. In State, ex rel. Kronenberger-Fodor Bldg. Co., v. Parma (1973), 34 Ohio St.2d 222, 225, 63 O.O.2d 362, 363, 297 N.E.2d 525, 527, it was observed:

" * * * where a constitutional process of appeal has been legislatively provided, the sole fact that pursuing such process would encompass more delay and inconvenience than seeking an extraordinary remedy is insufficient to prevent the process from constituting a plain and adequate remedy in the ordinary course of the law." See, also, State ex rel. Cinnamon Lake Utility Co., v. Pub. Util. Comm. (1975), 41 Ohio St.2d 79, 80, 70 O.O.2d 165, 166, 322 N.E.2d 645, 649.

In the case at bar, appellant sought access to documents which had previously been the subject of a subpoena duces tecum issued pursuant to Civ.R. 30(B). The trial court thereafter granted a Civ.R. 26(B) motion to quash the subpoena.

The granting of the motion was appealed to the Court of Appeals for Fulton County...