Schneider v. McCarty

2023 Ohio 4509

• Court: Ohio Court of Appeals
• Decided: December 13, 2023
• Docket: 30873
• Status: Published

Opinion

[Cite as Schneider v. McCarty, 2023-Ohio-4509.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

JOHN SCHNEIDER C.A. No. 30873

Relator

v.

JUDGE ALISON MCCARTY ORIGINAL ACTION IN PROCEDENDO Respondent

Dated: December 13, 2023

PER CURIAM.

{¶1} Relator, John Schneider, petitioned this Court for a writ of procedendo to order

Respondent, Judge Alison McCarty, to rule on a pending motion. Judge McCarty has moved to

dismiss. For the following reasons, the motion to dismiss is granted and the case is dismissed.

{¶2} To obtain a writ of procedendo, Mr. Schneider must establish that he has a clear

legal right to require the judge to proceed, that the judge has a clear legal duty to proceed, and

that there is no adequate remedy available in the ordinary course of law. State ex rel. Ward v.

Reed, 141 Ohio St.3d 50, 2014-Ohio-4512, ¶ 9, citing State ex rel. Sherrills v. Cuyahoga Cty.

Court of Common Pleas, 72 Ohio St.3d 461, 462 (1995). Procedendo is the appropriate remedy

when a judge has refused to render a judgment or has unnecessarily delayed proceeding to

judgment. State ex rel. M.D. v. Kelsey, 168 Ohio St.3d 679, 2022-Ohio-2556, ¶ 10. It is well-

settled that procedendo will not “compel the performance of a duty that has already been

performed.” State ex rel. Grove v. Nadel, 84 Ohio St.3d 252, 253, 1998-Ohio-541. C.A. No. 30873 Page 2 of 4

{¶3} When this Court reviews a motion to dismiss under Civ.R. 12(B)(6), we must

presume that all of the factual allegations in the petition are true and make all reasonable

inferences in favor of the nonmoving party. State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d

489, 490 (1994). A petition can only be dismissed when, having viewed the complaint in this

way, it appears beyond doubt that the relator can prove no set of facts that would entitle him to

the relief requested. Goudlock v. Voorhies, 119 Ohio St.3d 389, 2008-Ohio-4787, ¶ 7. With this

standard in mind, we begin with the facts alleged in the complaint.

{¶4} Mr. Schneider’s complaint seeks an order directing Judge McCarty to rule on a

motion he filed on January 5, 2023. The attachments to the complaint, and Judge McCarty’s

response, show that Mr. Schneider filed this same complaint in an earlier procedendo case in this

Court. Judge McCarty ruled on the January 5, 2023 motion pending before her and granted

judgment and damages in Mr. Schneider’s favor in a final, appealable order.

{¶5} Mr. Schneider then voluntarily dismissed the original action. According to the

attachments to the complaint, Mr. Schneider inadvertently filed the voluntary dismissal in the

trial court case and then correctly filed it in the original action case.

{¶6} The first attachment to the complaint contains the trial court case number and it is

captioned “motion to correct and/or reconsideration of judgment.” This document does not bear

a trial court time stamp or any other indication that it was filed in the trial court. There is also no

reference to this motion in the complaint itself, but it is attached to the complaint.

{¶7} According to the motion, Mr. Schneider attempted to file a Notice of Garnishment

in the trial court case. The motion states that he was told he could not seek garnishment because

the trial court had dismissed the case. The motion argues that the dismissal was a clerical error C.A. No. 30873 Page 3 of 4

resulting from the mistaken filing of the voluntary dismissal in the trial court case rather than the

original action case.

{¶8} The complaint asks this Court to order Judge McCarty to rule on a motion filed in

January 2023. The attachments to the complaint demonstrate that Judge McCarty has ruled on

that motion. Procedendo will not compel the performance of a duty that has already been

performed.

{¶9} The writ of procedendo will issue to vindicate a relator’s clear legal right to have

a lawsuit litigated without undue delay. Yee v. Erie County Sheriff’s Dept., 51 Ohio St.3d 43, 44

(1990). 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. Dehler v. Sutula, Judge, 74

Ohio St.3d 33, 35 (1995). The writ is the appropriate means to remedy an inferior court’s refusal

or failure to timely dispose of a pending action. State ex rel. Watkins v. Eighth District Court of

Appeals, 82 Ohio St.3d 532, 535-536 (1998).

{¶10} The complaint does not allege that Judge McCarty has delayed entering a ruling

on any pending motions other than the January 2023 motion. As already noted, there is no dispute

that Judge McCarty has ruled on the January 2023 motion. Accordingly, as to the allegations in

the complaint, the motion to dismiss must be granted.

{¶11} Finally, Judge McCarty’s motion to dismiss argues that a voluntary dismissal filed

after a final judgment is a nullity, the judgment in Mr. Schneider’s favor has not been vacated,

and there is no allegation or evidence that Judge McCarty has or will deny garnishment

proceedings. Thus, Judge McCarty has demonstrated that there is an adequate remedy available

to Mr. Schnieder, which also prevents this Court from granting the writ of procedendo. C.A. No. 30873 Page 4 of 4

{¶12} For the foregoing reasons, the motion to dismiss is granted and this case is

dismissed. Costs are taxed to Mr. Schneider. The clerk of courts is hereby directed to serve upon

all parties not in default notice of this judgment and its date of entry upon the journal. See Civ.R.

58(B).

JENNIFER L. HENSAL FOR THE COURT

CARR, J. FLAGG LANZINGER, J. CONCUR.

APPEARANCES:

JOHN SCHNEIDER, Relator.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JENNIFER M. PIATT, Assistant Prosecuting Attorney, for Respondent.