2012 Ohio 3469
Ohio Ct. App.2012Background
- Fillinger filed a procedendo action April 9, 2012 to compel findings of fact and conclusions of law, to rule on objections to a magistrate’s decision, and to obtain a final, appealable order in the underlying foreclosure case Morgan Stanley Credit Corp. v. Fillinger, No. CV-736882.
- Morgan Stanley moved for summary judgment in Oct. 2011; Judge McCormick ruled Jan. 4, 2012 denying Fillinger and granting Morgan Stanley, and ordered submission of a proposed magistrate’s decision.
- On Jan. 9–10, 2012 the magistrate issued a six-page decision; Fillinger requested findings of fact and conclusions of law under Civ.R. 53(D)(3) and filed a notice of appeal on Jan. 11, 2012.
- On Jan. 18, 2012 the judge denied findings of fact and conclusions of law, ruling Civ.R. 53 procedures were not invoked; the judge stated Civ.R. 52/56 governed summary judgments.
- On March 12, 2012 the judge adopted the magistrate’s decision, entered judgment in Morgan Stanley’s favor, ordered foreclosure, noted no personal judgment due to Fillinger’s discharge in bankruptcy, and corrected a clerical mortgage error; Fillinger appealed and sought a writ of procedendo.
- The appellate court granted summary judgment for respondents, denied the writ, and noted Fillinger failed to file an affidavit under Loc.App.R. 45(B)(1)(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 53 procedures apply to the case sub judice | Fillinger argues a hybrid Civ.R. 53/56 process required findings of fact and conclusions. | McCormick contends Civ.R. 53 procedures were not triggered since rulings occurred on summary judgment under Civ.R. 52/56. | Writ denied; court did not decide Civ.R. 53 applicability, because trial court proceeded to judgment. |
| Whether relator complied with Loc.App.R. 45(B)(1)(a) affidavit requirement | Fillinger asserts adequate factual basis for relief without the affidavit. | Respondents argue the affidavit requirement was not satisfied. | Relator failed to provide the required affidavit; summary judgment affirmed and writ denied. |
Key Cases Cited
- Yee v. Erie Cty. Sheriff’s Dept., 51 Ohio St.3d 43 (1990) (procedendo when court delays judgment; not for advisory opinions)
- State ex rel. Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532 (1998) (when to issue procedendo for delay or failure to render judgment)
- State ex rel. Utley v. Abruzzo, 17 Ohio St.3d 203 (1985) (adequate remedy at law needed; limits on writs)
- State ex rel. Hansen v. Reed, 63 Ohio St.3d 597 (1992) (limits on use of procedendo; discretion and finality)
- Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d 124 (2009) (example governing affidavit requirements under Loc.App.R. 45(B)(1)(a))