State ex rel. New Concept Hous., Inc. v. Metz
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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. New Concept Hous., Inc. v. Metz, Slip Opinion No. 2009-Ohio-5862.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2009-OHIO-5862 THE STATE EX REL. NEW CONCEPT HOUSING, INC., ET AL., APPELLANTS, v. METZ, JUDGE, APPELLEE. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. New Concept Hous., Inc. v. Metz, Slip Opinion No. 2009-Ohio-5862.] Procedendo Adequate remedy by way of appeal precludes writ. (No. 2009-0926 Submitted November 4, 2009 Decided November 10, 2009.) APPEAL from the Court of Appeals for Hamilton County, No. C-080986. __________________ Per Curiam. {¶ 1} We affirm the judgment denying the petition of appellants, New Concept Housing, Inc., and George B. Stewart, for a writ of procedendo to compel appellee, a Hamilton County Court of Common Pleas judge, to issue a declaratory judgment concerning certain matters and to resolve all matters discussed in a prior appeal in the same case. SUPREME COURT OF OHIO {¶ 2} Appellants had an adequate remedy to raise their contentions by way of appeal from the common pleas court s June 10, 2008 judgment that they challenge, and, in fact, they did so. See New Concept Hous., Inc. v. United Dept. Stores, Hamilton App. No. C-080504, 2009-Ohio-2259. [P]rocedendo is not appropriate when the party seeking the writ has an adequate remedy in the ordinary course of law, e.g., appeal. State ex rel. Bd. of State Teachers Retirement Sys. of Ohio v. Davis, 113 Ohio St.3d 410, 2007-Ohio-2205, 865 N.E.2d 1289, ¶ 43. {¶ 3} The trial court s declaratory judgment was a final, appealable order because it affected the substantial rights of the parties, resolved the pertinent issues, and did not contemplate further action. Cf. id. at ¶ 45; see also Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 540 N.E.2d 266, paragraph two of the syllabus ( A declaratory judgment action is a special proceeding pursuant to R.C. 2505.02 and, therefore, an order entered therein which affects a substantial right is a final appealable order ). {¶ 4} Insofar as appellants argued that the common pleas court judge had failed to comply with a decision of the court of appeals in a prior appeal, that same appellate court s denial of their procedendo claim and affirmance of the trial court s June 2008 declaratory judgment established otherwise. See State ex rel. Pyle v. Bessey, 112 Ohio St.3d 119, 2006-Ohio-6514, 858 N.E.2d 383, ¶ 12 ( The court of appeals was in the best position to determine whether Judge Bessey violated its mandate in Pyle I, and it concluded that he had not done so by affirming the judgment in Pyle II and dismissing Pyle s writ action ). Judgment affirmed. MOYER, C.J., and PFEIFER, LUNDBERG O DONNELL, LANZINGER, and CUPP, JJ., concur. __________________ 2 STRATTON, O CONNOR, January Term, 2009 Gonzalez, Saggio & Harlan, L.L.P., Robert R. Furnier, and Rasheed A. Simmonds; and Taft, Stettinius & Hollister, L.L.P., and John B. Nalbandian, for appellants. Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J. Schaeffer, Assistant Prosecuting Attorney, for appellee. ______________________ 3
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