State ex rel. Cleve v. Sutula

1

2022-Ohio-2590

STATE EX REL., CLEVE. CUYAHOGA COUNTY PORT AUTHORITY, ET AL., Relators, v. THE HONORABLE JOHN D. SUTULA, Respondent.

No. 111677

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 22, 2022

Writ of Procedendo Motion No. 556515 Order No. 556727

JUDGMENT: WRIT DISMISSED

Mansour Gavin LPA, Anthony J. Coyne, Diane A. Calta, and Kathryn E. Weber; Climaco, Wilcox, Peca & Garofoli Co. LPA, and Scott Simpkins; Akerman LLP, Michael Marsh, Ryan Roman, Octavia M. Green, and Tisha James, for relators Cleveland-Cuyahoga County Port Authority and William D Friedman.

Rosalina M. Fini and Katie M. McVoy; Thompson Hine LLP, Kip T. Bollin, Thomas Matthew Ritzert, and Kyle A. Hutnick, for relator Board of Park Commissioners of the Cleveland Metropolitan Park District.

Jessica Sanderson; Nicholas Alexander Adair, for relators Riverbed West LLC and Riverbed 007, LLC.

Andrew J. Dorman and Jack Maib, for relator Ohio City Incorporated and L.A.N.D. Studio, Inc.

Mark Griffin, Director of Law, and Jerome A. Payne, Assistant Director of Law, for relator city of Cleveland.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Mark R Musson and Nora E. Poore, Assistant Prosecuting Attorneys, for respondent.

JOURNAL ENTRY AND OPINION

LISA B. FORBES, JUDGE

{¶ 1} Relators, Cleveland-Cuyahoga County Port Authority ("Port Authority"), Riverbed West, LLC Riverbed 007, LLC, William D. Friedman, Board of Park Commissioners of the Cleveland Metropolitan Park District, Ohio City Inc., L.A.N.D. Studio, Inc., and the city of Cleveland, request a writ of procedendo directing the Honorable John D. Sutula, judge of the Cuyahoga County Court of Common Pleas, to proceed to judgment on various motions in Mtge. Invest. Group, LLC, v. Riverbed West, LLC, Cuyahoga C.P. No. CV-21-954893, and Mtge. Invest. Group, LLC v. Cleveland-Cuyahoga Cty. Port Auth., Cuyahoga C.P. No. CV-22- 960323. Because respondent has ruled on the motions for which relators have requested relief in procedendo, we sua sponte dismiss the action as moot.

I. Background

{¶ 2} Relators are adjoining neighbors, stakeholders, or are agencies overseeing or have an interest in a project to stabilize an eroding hillside directly adjacent to the Cuyahoga River known as the Irishtown Bend. The complaint and amended complaint allege that the hillside is in danger of imminent collapse, which would be disastrous for residents, businesses, and the ecology of the river. Relators further allege that all properties at the top of the hill that are impacted by the project have been acquired by the relator agencies or organizations except one property owned by Mortgage Investment Group, LLC ("MIG"). Relators allege that steps have been taken to acquire the property through eminent domain. Relators allege that the taking action is necessary in order stabilize the hillside.

{¶ 3} MIG has filed two actions in the general division of the common pleas court, which have been consolidated before respondent. On October 26, 2021, in CV-21-954893, MIG initiated an action against relators and others alleging claims of fraud, negligence, tortious interference with prospective business opportunities, and civil conspiracy, and seeking declaratory judgment. In response to a resolution passed by the Port Authority authorizing the taking of MIG's property and the filing of a "quick-take" eminent domain action in the probate court, on March 4, 2022, in CV-22-960323, MIG filed a second action with claims of abuse of authority and trespass. On March 6, 2022, MIG also filed a motion for preliminary and permanent injunction in that action. This case was consolidated with the other common pleas case before respondent on March 22, 2022. The docket indicates that respondent held a hearing on the preliminary injunction on April 21, which was adjourned to April 25. At the time the complaint was filed, no further docket entry indicated that the hearing was concluded and no ruling on the motion was journalized.

{¶ 4} On June 29, 2022, relators filed the initial complaint arguing that by not ruling on MIG's motion for preliminary injunction, respondent had essentially granted the preliminary injunction by failing to rule on it and leaving relators without any means to challenge that ruling. Relators specifically sought to compel respondent to rule on the motion for preliminary injunction and temporary restraining order filed in CV-22-960323. The day after the complaint was filed, respondent granted the preliminary injunction and temporary restraining order. On July 5, 2022, this court issued a sua sponte order directing relators to show cause why the complaint should not be dismissed as moot.

{¶ 5} On July 8, 2022, relators filed a response arguing that the complaint was not moot because the complaint briefly mentioned that respondent had not ruled on 11 other motions. However, the prayer for relief in the complaint did not include any reference to these motions. In fact, it specifically requested relief in procedendo only for the motion for preliminary injunction and temporary restraining order.

{¶ 6} In the alternative, Riverbed West, LLC, Riverbed 007, LLC, the city of Cleveland, and the Board of Park Commissioners of the Cleveland Metropolitan Park District, sought to amend the complaint to include claims for relief that were not present in the original complaint.^[1] The amended complaint sought to compel respondent to rule on 4 of the 11 motions mentioned in the initial complaint. Specifically, the amended complaint prayed for rulings on motions to dismiss the complaint filed in CV-21-954893. We granted the motion to file an amended complaint by separate entry and deemed accepted the amended complaint attached to the July 8, 2022 notice or in the alternative motion to amend.

{¶ 7} Pursuant to this court's show cause order, on July 14, 2022, respondent filed a reply to the July 8, 2022 filing. Respondent argued that the original complaint was moot because he ruled on the pending motion for preliminary injunction and temporary restraining order. Respondent did not oppose the alternative motion for leave to amend the complaint, but argued that the amended complaint was also moot because he ruled on the four pending motions to dismiss.^[2] Respondent attached certified copies of the journal entries ruling on the motions to dismiss to his reply brief.

II. Law and Analysis

A. Standard for Procedendo

{¶ 8} Relators seek relief in procedendo.

"A writ of procedendo is an extraordinary remedy in the form of an order from a higher tribunal directing a lower tribunal to proceed to judgment." State ex rel Mignella v. Indus. Comm., 156 Ohio St.3d 251, 2019-Ohio-463, 125 N.E.3d 844, ¶ 7. "A writ of procedendo may be used to compel an inferior, dilatory court to proceed to a final judgment." State ex rel O'Malley v. Russo, 156 Ohio St.3d 548, 2019-Ohio-1698, 130 N.E.3d 256, ¶ 32. The writ does not instruct the lower court as to what the judgment should be; rather, it merely instructs the lower court to issue a judgment. State ex rel Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462, 1995-Ohio-26, 650 N.E.2d 899 (1995). "A writ of procedendo is appropriate upon a showing of 'a clear legal right to require the trial court to proceed, a clear legal duty on the part of the trial court to proceed, and the lack of an adequate remedy in the ordinary course of the law.'" State ex rel White v. Woods, 156 Ohio St.3d 562, 2019-Ohio-1893, 130 N.E.3d 271, ¶ 7, quoting State ex rel Ward v. Reed, 141 Ohio St.3d 50, 2014-Ohio-4512, 21 N.E.3d 303, ¶ 9.

State ex rel. Bechtel v. Cornachio, 164 Ohio St.3d 579, 2021-Ohio-1121, 174 N.E.3d 744, ¶ 7.

{¶ 9} Sua sponte dismissal of a complaint without notice is permissible only where the complaint is frivolous or a claimant obviously cannot prevail. State ex rel. Bunting v. Styer, 147 Ohio St.3d 462, 2016-Ohio-5781, 67 N.E.3d 755, ¶ 12, quoting State ex rel. Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947, 918 N.E.2d 515, ¶ 3, quoting State ex rel. Scott v. Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923, ¶ 14, and citing State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 7.

B. Mootness

{¶ 10} As the Bechtel Court noted, procedendo is limited. It "will not compel the performance of a duty that has already been performed." Bechtel at ¶ 9, citing State ex rel. Roberts v. Marsh, 159 Ohio St.3d 457, 2020-Ohio-1540, 151 N.E.3d 625, ¶ 6. Therefore, when a respondent judge proceeds to judgment and issues rulings, procedendo will not lie and the action becomes moot. Id., citing State ex rel. Hibbler v. O'Neill, 159 Ohio St.3d 566, 2020-Ohio-1070, 152 N.E.3d 265, ¶ 9. Further, a court may go beyond the complaint and filings in an action and examine extrinsic evidence to determine whether an original action is moot. State ex rel. Nelson v. Russo, 89 Ohio St.3d 227, 228, 729 N.E.2d 1181 (2000), citing Pewitt v. Lorain Corr. Inst, 64 Ohio St.3d 470, 472, 597 N.E.2d 92 (1992). Accord State ex rel. Ames v. Summit Cty. Court of Common Pleas, 159 Ohio St.3d 47, 2020-Ohio- 354, 146 N.E.3d 573. This may include taking judicial notice of a docket that is publicly available over the internet. Lundeen v. Turner, 8th Dist. Cuyahoga No. 109240, 2020-Ohio-274, ¶ 4, fn. 1, citing State ex rel Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516; State v. Chairperson of the Ohio Adult Parole Auth., 2018-Ohio-1620, 96 N.E.3d 303 (10th Dist.).

{¶ 11} Here, a ruling on MIG's motion for preliminary injunction and temporary restraining order was journalized on June 30, 2022. Respondent granted the motion in a written decision...