State ex rel. Pine Creek Properties v. Turner

2023 Ohio 4424

• Court: Ohio Court of Appeals
• Decided: December 5, 2023
• Docket: 113114
• Status: Published

Opinion

[Cite as State ex rel. Pine Creek Properties v. Turner, 2023-Ohio-4424.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO EX REL., PINE : CREEK PROPERTIES, : Relator, : No. 113144 v. : EARLE B. TURNER, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DENIED DATED: December 5, 2023

Writ of Mandamus Motion Nos. 568713 and 568716 Order No. 569180

Appearances:

Powers Friedman Linn PLL, Robert G. Friedman, and Thomas P. Owen, for relator.

Mark D. Griffin, Cleveland Director of Law, and Gilbert E. Blomgren, and James R. Russell, Jr., Assistant Directors of Law, for respondent. KATHLEEN ANN KEOUGH, P.J:

Relator, Pine Creek Properties, seeks a writ of mandamus directing

respondent, Cleveland Municipal Court Clerk of Courts Earle B. Turner, to comply

with a local rule of the Housing Division of the Cleveland Municipal Court regarding

the scheduling of hearings in forcible entry and detainer actions, referred to as

eviction actions. Because relator has failed to clearly and convincingly show that

respondent has a legal duty in this case, we grant respondent’s motion for summary

judgment, deny relator’s motion for summary judgment, and deny relator’s request

for writ of mandamus.

I. Background

On September 1, 2023, relator filed a complaint for writ of

mandamus. There, relator claimed that current rules of the Housing Division of the

Cleveland Municipal Court established that eviction actions shall be scheduled for

hearing 21 days from the filing of the complaint. Relator asserted that it filed an

underlying eviction case on August 31, 2023, Pine Creek Prop. v. Rosemond,

Cleveland M.C. 2023-CVG-010007. Respondent’s office sent notices of hearing that

informed the parties that a hearing was scheduled 28 days from the filing of the

complaint, rather than 21 days. Relator alleged that respondent had a clear legal

duty to schedule hearings on eviction actions 21 days from the date of filing of the

complaint.

On September 5, 2023, this court issued a briefing order giving

respondent 14 days to respond to the complaint and relator seven days to file any opposition. Respondent timely filed a motion to dismiss alleging that relator was

seeking the general enforcement of the law over future conduct. Respondent argued

that relator was, in essence, seeking a declaratory judgment and injunctive relief.

On September 26, 2023, relator filed a brief in opposition where it argued that

respondent had a clear legal duty to comply with the local court rule.

On October 4, 2023, this court denied respondent’s motion to dismiss

and issued a briefing order directing the parties to file cross motions for summary

judgment within 14 days and briefs in opposition within seven days. This court

asked the parties to address whether respondent has a legal duty or authority to set

a matter for hearing and whether a Cleveland housing court order attached to

relator’s brief in opposition to respondent’s motion to dismiss rendered any ongoing

claim for relief in mandamus moot.

Respondent and relator timely filed motions for summary judgment.

Respondent argued that as a clerk of courts, he did not have a legal duty to set

hearings. He further alleged that no statute or court rule, even the housing court’s

local rule, established that he had such a duty. In relator’s motion for summary

judgment, it argued that on information and belief, respondent, not the housing

court, was responsible for setting the first hearing in eviction actions and that

respondent had a duty to abide by the rules established by the housing court when

doing so. Relator also submitted evidence establishing that there were numerous

instances of eviction actions not being set for a hearing 21 days after the date on which the complaint was filed. These arguments were carried forward through each

respective party’s timely filed brief in opposition.

II. Law and Analysis A. Standard for Writ of Mandamus

A writ of mandamus, an extraordinary remedy, will not issue unless

relators show by clear and convincing evidence that (1) they are entitled to the

requested relief, (2) the respondent has a clear legal duty to provide the requested

relief, and (3) they possess no other adequate remedy in the ordinary course of the

law. State ex rel. Cleveland Right to Life v. Ohio Controlling Bd., 138 Ohio St.3d 57,

2013-Ohio-5632, 3 N.E.3d 185, ¶ 2. “Mandamus lies to compel the performance of

an act which is clearly enjoined by law upon a respondent.” State ex rel. Ohio

Motorists Assn. v. Masten, 8 Ohio App.3d 123, 126, 456 N.E.2d 567 (8th Dist.1982),

citing State ex rel. Pistillo, v. Shaker Heights, 26 Ohio St.2d 85, 269 N.E.2d 42

(1971). Further, “[a] ‘writ of mandamus will not issue to compel the general

observance of laws in the future.’” State ex rel. ACLU of Ohio v. Cuyahoga Cty. Bd.

of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 27, quoting

State ex rel. Kirk v. Burcham, 82 Ohio St.3d 407, 409, 696 N.E.2d 582 (1998).

Mandamus will not issue in the doubtful case. Where the duty is ambiguous, the

writ will not issue. State ex rel. McKenney v. Jones, 168 Ohio St.3d 180, 2022-Ohio-

583 and 2022-Ohio-583, 197 N.E.3d 520, ¶ 34.

The matter is before this court on cross-motions for summary

judgment. Pursuant to Civ.R. 56(C), [s]ummary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.

B. Clear Legal Duty

Relator attached the local rules of court to its complaint. Former

Cleveland Mun.Ct.R.Prac. & P. 6.05, titled Scheduling Eviction Hearings, provided

that “[t]he eviction shall be set for hearing at 9:00 a.m. twenty-one (21) days from

the filing date, unless otherwise ordered by the Court.” The rules of court were

reorganized and amended in 2022. According to the complaint, this rule became

Cleveland Mun.Ct.R.Prac. & P. 6(J)(1) with no substantive change to the wording.

The complaint and relator’s opposition to respondent’s motion to dismiss also

included administrative orders issued by the administrative judge of the housing

court varying the date of first hearing.

Generally, a clerk sends notices of a hearing set by a court. The

obligations and duties of a clerk of courts are set forth in R.C. 1907.20 for a common

pleas court clerk and R.C. 1901.31 for a municipal court clerk. Pursuant to

R.C. 1901.31(E),

[t]he clerk of a municipal court may do all of the following: administer oaths, take affidavits, and issue executions upon any judgment rendered in the court, including a judgment for unpaid costs; issue, sign, and attach the seal of the court to all writs, process, subpoenas, and papers issuing out of the court; and approve all bonds, sureties, recognizances, and undertakings fixed by any judge of the court or by law. The clerk may refuse to accept for filing any pleading or paper submitted for filing by a person who has been found to be a vexatious litigator under section 2323.52 of the Revised Code and who has failed to obtain leave to proceed under that section. The clerk shall do all of the following: file and safely keep all journals, records, books, and papers belonging or appertaining to the court; record the proceedings of the court; perform all other duties that the judges of the court may prescribe; and keep a book showing all receipts and disbursements, which book shall be open for public inspection at all times.

The clerk shall prepare and maintain a general index, a docket, and other records that the court, by rule, requires, all of which shall be the public records of the court. In the docket, the clerk shall enter, at the time of the commencement of an action, the names of the parties in full, the names of the counsel, and the nature of the proceedings. Under proper dates, the clerk shall note the filing of the complaint, issuing of summons or other process, returns, and any subsequent pleadings. The clerk also shall enter all reports, verdicts, orders, judgments, and proceedings of the court, clearly specifying the relief granted or orders made in each action. The court may order an extended record of any of the above to be made and entered, under the proper action heading, upon the docket at the request of any party to the case, the expense of which record may be taxed as costs in the case or may be required to be prepaid by the party demanding the record, upon order of the court.

The clerk shall also receive and collect fines, fees, and costs; bail; and monies

payable to the office of the court. R.C. 1901.31(F).

Relator does not point to anywhere in the statutory scheme or rules

of superintendence governing the operations or duties of a municipal clerk of courts

that a clerk has a duty to schedule hearings. R.C. 1901.31(E) does provide that a

clerk of courts shall “perform all other duties that the judges of the court may

prescribe.” However, relator has not provided this court with anything that indicates that a judge of the housing court has directed respondent to set matters for

hearing.

Instead, relator relies exclusively on a local rule of court that states

when hearings shall be set in eviction actions. However, as explained below, this

local rule does not direct respondent to set matters for hearing or that the court

delegated its responsibility for setting those hearings to the clerk.

According to the complaint, Cleveland Mun.Ct.R.Prac. & P. 6(J)(1) as

stated in the version filed with the housing court on January 31, 2023, provides:

“The eviction shall be set for hearing at 9:00 a.m. twenty-one (21) days from the

filing date, unless otherwise ordered by the Court.”

There is no clear legal duty for a clerk of courts to set a hearing found

in the language of Cleveland Mun.Ct.R.Prac. & P. 6(J)(1). The rule does not

conclusively place the burden on respondent rather than the housing court judge or

employee of the housing court to set a hearing. “[I]n general, the administrative

judge exercises control over the docket of a court. Sup.R. 4.01(A) (‘An

administrative judge of a court or a division of a court shall * * * [b]e responsible for

and exercise control over the administration, docket, and calendar of the court or

division’).” State ex rel. Durrani v. Ruehlman, 147 Ohio St.3d 478, 2016-Ohio-7740,

67 N.E.3d 769, ¶ 21. And a trial judge has inherent authority to control its docket.

Wells Fargo Bank, N.A. v. Myles, 8th Dist. Cuyahoga No. 93484, 2010-Ohio-2350,

¶ 20. The local rule of court does not explicitly direct respondent to set matters for

hearing or delegate control of the docket from the judge to another. Relator has not established a clear legal duty on the part of

respondent to set matters for hearing. While the matter is before this court on

summary judgment where respondent carries the burden of demonstrating

entitlement to judgment as a matter of law, a writ will not issue “‘unless the relator

has a clear right to the relief sought and makes a clear case for the issuance of

the writ. The facts submitted and the proof produced must be plain, clear and

convincing before a court is justified in using the strong arm of the law by way of

granting the writ.’” State ex rel. Cavanagh v. Cleveland, 8th Dist. Cuyahoga

No. 96116, 2011-Ohio-3840, ¶ 27, quoting State ex rel. Pressley v. Indus. Comm., 11

Ohio St.2d 141, 161, 228 N.E.2d 631 (1967). Thus, the summary judgment inquiry is

whether a reasonable jury acting reasonably could find that relator is entitled to

relief with convincing clarity. Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116,

121-123, 413 N.E.2d 1187 (1980) (explaining how the clear and convincing

evidentiary standard applies to summary judgment for actual malice in a libel

claim). Here, relator has not established entitlement to relief with that convincing

clarity.

The Supreme Court of Ohio has held that where a court rule is

ambiguous or subject to reasonable interpretation, a writ will not issue because

there is no clear legal duty on the part of a respondent. McKenney, 168 Ohio St.3d

180, 2022-Ohio-583, 2022-Ohio-583, 197 N.E.3d 520, at ¶ 34. There, municipal

court judges brought action for writs of prohibition and mandamus against a

common pleas court to force the repeal of a common pleas court local rule that stated that the administrative judge of the common pleas court would appoint counsel for

all indigent defendants charged with a felony within the county. In denying the

requested relief in mandamus, the court stated,

The relators object to Loc.R. 21.03(A) of the Court of Common Pleas of Summit County, General Division, which provides that the common pleas court’s designated assignment judge will appoint counsel for all defendants charged with a felony in Summit County and eligible for appointed counsel. Contrary to the relators’ allegation, the rule does not expressly state that the common pleas court will appoint counsel in cases pending in municipal court. The rule is susceptible to the interpretation offered by the respondents that appointments occur only after the case is transferred to the common pleas court. And if the rule is ambiguous, then the common pleas court cannot have a clear legal duty to repeal it.

Id.

Here, the local rule of court on which relator relies does not establish

that respondent has a duty to set matters for hearing. Even if this court were to

determine that respondent has been directed by the local rule of court to set matters

for hearing at a specific time, the rule specifies that the housing court may direct

respondent otherwise.

According to the complaint and other attachments filed by relator, the

housing court has done so on several occasions, including after the filing of this

action. The administrative judge of the housing court has issued an order stating

that eviction matters shall be set for hearing 30 days after the filing of the complaint

until December 1, 2023. This order signed by the housing court judge on

September 19, 2023, is attached to relator’s brief in opposition to respondent’s

motion to dismiss. If it is respondent’s obligation to set matters for a hearing to occur 21 days after the filing of the complaint, the court may and has directed

otherwise. This discretion exercised by the housing court judge further

demonstrates that relief in mandamus in inappropriate in this case.

C. Adequate Remedy at Law

Additionally, to prevail relator must establish that it possesses no

other adequate remedy at law. Where an adequate remedy at law exists, relief in

mandamus is unavailable. State ex rel. Lyons v. Zaleski, 75 Ohio St.3d 623, 624,

665 N.E.2d 212 (1996); State ex rel. Daniels v. Russo, 156 Ohio St.3d 143, 2018-

Ohio-5194, 123 N.E.3d 1011, ¶ 9, 12. To constitute an adequate remedy, the remedy

must be “complete, beneficial, and speedy.” State ex rel. Ullmann v. Hayes, 103

Ohio St.3d 405, 2004-Ohio-5469, 816 N.E.2d 245, ¶ 8.

Here, if a hearing is not set within the period provided in the housing

court rule, a motion directed to the judge to set the matter for hearing in the

appropriate time under the local rule constitutes an adequate remedy. It is the trial

court judge who is ultimately responsible for control of the trial court’s docket. Wells

Fargo Bank, 8th Dist. Cuyahoga No. 93484, 2010-Ohio-2350, at ¶ 20. The granting

of a motion by the administrative or trial judge1 to advance the hearing date in

compliance with the local rule would offer complete and timely relief. See Chokel v.

Celebrezze, 8th Dist. Cuyahoga No. 78355, 2000 Ohio App. LEXIS 6227 (Dec. 19,

2000). The denial of the motion would indicate that it is the trial judge’s discretion

1 In this case the administrative and trial judge are the same judge. to set the matter for a different time as is allowed under the local rule. Relator’s

arguments that there is no other adequate means of relief are unavailing.

Relator also argues that respondent has not submitted any evidence

for this court to determine the issue on summary judgment. It is true that

respondent did not file any affidavits or other evidence with its various motions in

this court, but it is not true that this is insufficient to meet its burden of proof on

summary judgment. Respondent points to R.C. 1901.31(E) and the local rule of

court to establish that respondent has no clear legal duty to set a matter for hearing.

This is apparent from the face of the statute and rule. No further evidence is

necessary. Relator also does not sufficiently demonstrate why filing a motion to

advance the date of hearing with the housing court judge is not a sufficient means to

address the alleged violation of respondent’s duty in the present case.

Respondent’s motion for summary judgment is granted, relator’s

motion for summary judgment is denied, and the request for writ of mandamus is

denied. Costs assessed against relator. The clerk is directed to serve on the parties

notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).

Writ denied.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and MICHAEL JOHN RYAN, J., CONCUR