State ex rel. Dehler v. Sutula
656 N.E.2d 332
Ohio
1995
Check Treatment
Per Curiam.

In order to dismiss a complaint under Civ.R. 12(B)(6), failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint, after all factual allegations are presumed true and all reasonable inferences are made in favor of the relator/plaintiff, that the relator/plaintiff can prove no set of facts warranting relief. State ex rel. Williams Ford Sales, Inc. v. Connor (1995), 72 Ohio St.3d 111, 113, 647 N.E.2d 804, 806. In order to be entitled to a writ of mandamus, Dehler had the burden to establish a clear legal right to the requested acts, a corresponding clear legal duty on the part of Judge Sutula to perform those acts, and the absence of a plain and adequate remedy in the ordinary course of law. State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490, 633 N.E.2d 1128, 1129.

Although Dehler set forth a claim in the court of appeals for a writ of mandamus to compel Judge Sutula to recuse herself, he does not contend on appeal that the court of appeals erred in dismissing the claim on the basis that R.C. 2701.03 provided an adequate legal remedy, which Dehler used, to raise his allegations of bias and seek Judge Sutula’s disqualification. See, also, State ex rel. Nichols v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities (1995), 72 Ohio St.3d 205, 209, 648 N.E.2d 823, 827, quoting State ex rel. Inland Properties Co. v. Court of Appeals of the Eighth Appellate Dist. of Ohio (1949), 151 Ohio St. 174, 176, 39 O.O. 15, 16, 84 N.E.2d 922, 923 (“ 'Where a plain and adequate remedy at law has been unsuccessfully invoked, the extraordinary writ of mandamus will not lie either to relitigate the same question or as a substitute for appeal.’ ”).

Instead, Dehler asserts in his sole proposition of law that mandamus will lie to compel a court to rule on a postconviction relief petition then pending before it for ten months. A writ of mandamus or procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas (1995), 72 Ohio St.3d 461, 462, 650 N.E.2d 899, 900; State ex rel Ferrell v. Clark (1984), 13 Ohio St.3d 3, 13 OBR 378, 379, 469 N.E.2d 843, 844. Although mandamus will he in cases of a court’s undue delay in entering judgment, procedendo is more appropriate, since “[a]n inferior court’s refusal or failure to timely dispose of a pending action is the ill a writ of procedendo is designed to remedy.” State ex rel. Levin v. Sheffield Lake (1994), 70 Ohio St.3d 104, 110, 637 N.E.2d 319, 324; see, also, State ex rel. Greater Cleveland Regional Transit Auth. v. Griffin (1991), 62 Ohio App.3d 516, 520, 576 N.E.2d 825, 828.

As to Dehler’s claimed entitlement to a writ of mandamus, he relies on State ex rel. Turpin v. Court of Common Pleas (1966), 8 Ohio St.2d 1, 37 O.O.2d 40, 220 N.E.2d 670, where we allowed a writ of mandamus to compel a court to rule on a postconviction relief petition where it had been pending for twelve months. In so holding, we noted that “prompt action on such petitions should be taken” and that the twelve-month delay therein was excessive. Id. at 2, 37 O.O.2d at 40, 220 N.E.2d at 670.

However, as the court of appeals below held, unlike the relator in Turpin, Dehler filed other requests on and after the date he filed his petition for postconviction relief, including an affidavit requesting that Judge Sutula be disqualified from ruling on the petition. Dehler also requested that Judge Sutula recuse herself and that counsel be appointed. Given these facts, as admitted in Dehler’s complaint, there was no undue delay, and it was beyond doubt that he could prove no set of facts establishing his entitlement to extraordinary relief. See, e.g., State ex rel. Tillimon v. Weiher (1992), 65 Ohio St.3d 468, 605 N.E.2d 35 (writ of mandamus will not issue to compel court to release its decisions promptly); cf. State ex rel. Pierce v. Stark Cty. Court of Common Pleas (1986), 25 Ohio St.3d 27, 25 OBR 23, 494 N.E.2d 1139 (Mandamus will not lie to compel court to rule on postconviction proceeding where as late as the month mandamus action was filed, the court was attempting to accommodate relator’s request for counsel in a postconviction proceeding.).

Dehler failed to plead sufficient specific facts to withstand the Civ.R. 12(B)(6) dismissal motion. See State ex rel. Fain v. Summit Cty. Adult Probation Dept. (1995), 71 Ohio St.3d 658, 659, 646 N.E.2d 1113, 1114, and cases cited therein. Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur. Wright, J., concurs in judgment only.