2019 Ohio 3865
Ohio Ct. App.2019Background
- Relator Antonio M. Jones, an inmate, filed an affidavit and application under R.C. 2935.09 on Aug. 23, 2018 accusing his former criminal-defense attorney of interference with civil rights and obstruction of official business.
- The clerk docketed the filing as a civil case (Jones v. Thomas, Franklin C.P. No. 18CV-7218), assigned to Judge Julie M. Lynch, rather than routing it as a criminal affidavit to the administrative judge.
- Jones filed an original procedendo action in this court (Jan. 14, 2019) seeking a writ compelling respondent Judge Stephen L. McIntosh to rule on the Aug. 23 filing and moved for summary judgment, arguing a 120‑day rule required a decision.
- A magistrate recommended sua sponte dismissal as premature because the trial court had set and appeared to be following a case schedule; the filing was treated as a civil complaint, not an in‑court motion.
- Before Jones’ objections to the magistrate issued, Judge Lynch ruled on June 10, 2019 that there was no probable cause, the affidavit lacked good faith, and the filing amounted to a collateral attack; Jones appealed that ruling to this court.
- The Tenth District held that procedendo would not lie to compel an act already performed; because the trial court had ruled, Jones’ request for a writ and his summary‑judgment motion were moot and the cause was dismissed.
Issues
| Issue | Plaintiff's Argument (Jones) | Defendant's Argument (Respondent/Trial Court) | Held |
|---|---|---|---|
| Whether Jones is entitled to a writ of procedendo forcing a ruling because 120 days passed | The court failed to rule within 120 days on his Aug. 23, 2018 filing; thus procedendo is warranted | The filing is a civil complaint on the court docket; the trial court set a schedule and has not unreasonably delayed ruling | Dismissed as premature/moot; no writ because the trial court has acted and was following a schedule |
| Whether the Aug. 23 filing is a criminal affidavit requiring referral to the administrative judge | It was filed as an R.C. 2935.09 affidavit seeking prosecution of his former counsel | The clerk treated it as a civil complaint; respondent not required to resolve a civil action within 120 days | Court accepted that the filing functioned as a civil complaint for docketing purposes; procedendo inappropriate |
| Whether the Tenth District should issue the writ before the trial court rules on the underlying civil proceeding | Urgent relief is needed to cause arrest/prosecution | Relief premature while trial court proceedings are ongoing per its schedule | Procedendo is an order to proceed to judgment, not to control outcome; premature and thus denied |
| Whether the action is moot after Judge Lynch ruled on the underlying filing | N/A (Jones appealed Judge Lynch’s ruling) | Judge Lynch already ruled on the merits (no probable cause; not in good faith) | Petition for procedendo and summary judgment dismissed as moot; magistrate decision vacated as unnecessary |
Key Cases Cited
- State ex rel. Lester v. Pepple, 130 Ohio St.3d 353 (procedendo will not lie to compel an act already performed)
- State ex rel. Miley v. Parrott, 77 Ohio St.3d 64 (elements for writ of procedendo: clear right, clear duty, no adequate remedy)
- State ex rel. Dehler v. Sutula, 74 Ohio St.3d 33 (procedendo remedies an inferior court's refusal or undue delay)
- State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461 (procedendo directs an inferior court to proceed to judgment; does not control the content of the judgment)