State Ex Rel. New Concept Housing, Inc. v. Metz

Ohio Supreme Court

State Ex Rel. New Concept Housing, Inc. v. Metz

2009 Ohio 5862, 123 Ohio St. 3d 457

CourtOhio Supreme Court

DecidedNovember 10, 2009

Docket2009-0926

StatusPublished

Cited by7 cases

This text of 2009 Ohio 5862 (State Ex Rel. New Concept Housing, Inc. v. Metz) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State Ex Rel. New Concept Housing, Inc. v. Metz, 2009 Ohio 5862, 123 Ohio St. 3d 457 (Ohio 2009).

Pincite

Opinion

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.

{¶ 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, 2009 WL 1362347. “[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 *458 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”).

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.

{¶ 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 Stratton, O’Connor, O’Donnell, Lanzinger, and Cupp, JJ., concur.

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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.

{¶ 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, 2009 WL 1362347. “[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 *458 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”).

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.

{¶ 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 Stratton, O’Connor, O’Donnell, Lanzinger, and Cupp, JJ., concur.

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2009 Ohio 5862, 123 Ohio St. 3d 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-new-concept-housing-inc-v-metz-ohio-2009.

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