72 Ohio St. 3d 461 | Ohio | 1995
Sherrills asserts in his propositions of law that the court of appeals erred in dismissing his complaint for a writ of procedendo. In determining whether a complaint states a claim upon which relief can be granted, all factual allegations of the complaint must be presumed to be true and all reasonable inferences must be made in favor of the nonmoving party. Perez v. Cleveland (1993), 66 Ohio St.3d 397, 399, 613 N.E.2d 199, 200. In order to dismiss a complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon
A writ of procedendo will not issue unless the relator establishes a clear legal right to that relief and that there is no adequate remedy at law. State ex rel. Brown v. Shoemaker (1988), 38 Ohio St.3d 344, 345, 528 N.E.2d 188, 189. The relator must also establish a clear legal duty on the part of the court to proceed when the case is still at the pleading stage. Whiteside, Ohio Appellate Practice (1994) 146-23, Section T 10.24(B); State ex rel. Cochran v. Quillin (1969), 20 Ohio St.2d 6, 49 O.O.2d 53, 251 N.E.2d 607 (procedendo does not lie to interfere with ordinary court procedure or process).
Sherrills requested a writ of procedendo to order the common pleas court to make certain rulings on his postconviction relief petition and various other motions. However, “ ‘[t]he writ of procedendo is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment. It does not in any case attempt to control the inferior court as to what that judgment should be.’ ” State ex rel. Hansen v. Reed (1992), 63 Ohio St.3d 597, 600, 589 N.E.2d 1324, 1326-1327, quoting State ex rel. Davey v. Owen (1937), 133 Ohio St. 96, 106, 10 O.O. 102, 106, 12 N.E.2d 144, 149. Further, to the extent that Sherrills claims entitlement to an evidentiary hearing on his petition for postconviction relief, courts are not required to hold a hearing in all postconviction cases. State ex rel. Jackson v. McMonagle (1993), 67 Ohio St.3d 450, 451, 619 N.E.2d 1017, citing R.C. 2953.21(C).
A writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment. State ex rel. Doe v. Tracy (1988), 51 Ohio App.3d 198, 200, 555 N.E.2d 674, 677. Sherrills did not allege that the court of common pleas refused to rule on his postconviction relief petition and motions. Additionally, as the court of appeals emphasized, at the time Sherrills filed his complaint for a writ of procedendo, his postconviction relief petition and motions had been pending for only two to three weeks. Since there was no undue delay, it was beyond doubt that Sherrills could prove no set of facts establishing his entitlement to extraordinary relief. State ex rel. Hand v. Cuyahoga Cty. Probate Court (1991), 62 Ohio St.3d 110, 579 N.E.2d 704 (no entitlement to writ of procedendo when there is no allegation of delay); see, also, State ex rel. Martinelli v. Corrigan (1994), 68 Ohio St.3d 362, 626 N.E.2d 954
The court of appeals properly granted the common pleas court’s motion and dismissed the complaint. Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
