holding that the existence of the right to a direct appeal is fatal to a request for procedendoSummary of this case from State ex rel. Hull v. Culotta
Decided June 5, 1985.
Procedendo — Trial court ordered bifurcated trials — Relief denied, when.
APPEAL from the Court of Appeals for Preble County.
Appellant Edward S. Utley is the administrator of the estate of Martha A. Utley, who was fatally injured in an automobile-truck accident on November 17, 1980. Thereafter, Edward Utley and appellant Barbara H. Utley, who also received injuries as a result of the accident, brought actions against the owners and operators of the tractor-trailer rig allegedly involved in the accident. The cases were assigned to appellee, Judge David N. Abruzzo of the Court of Common Pleas of Preble County.
Prior to trial, appellee issued an order bifurcating the actions on the issues of liability and damages. See Civ. R. 42(B). Contending that under Ohio's comparative negligence statute (R.C. 2315.19) questions of liability and damages are so intertwined that bifurcation is unlawful, appellants filed an original action in procedendo in the Court of Appeals for Preble County seeking the issuance of a writ directing appellee to set the cases for a single trial on the issues of liability and damages. Upon motion of appellee, the court of appeals dismissed the complaint concluding (1) that appellants possessed an adequate remedy at law by way of appeal to contest the bifurcation order after the completion of the trials, and (2) that the writ was being sought in order to control or interfere with ordinary court procedure.
The cause is now before this court upon an appeal as of right.
William F. Clinard, for appellants.
Wilfrid G. Dues, prosecuting attorney, for appellee.
As was recognized in State, ex rel. Davey, v. Owen (1937), 133 Ohio St. 96, 106 [10 O.O. 102], "[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. * * *" Accord State, ex rel. Federated Dept. Stores, Inc., v. Brown (1956), 165 Ohio St. 521, 525 [60 O.O. 486]. It is well-settled that the writ of procedendo will not issue for the purpose of controlling or interfering with ordinary court procedure, State, ex rel. Cochran, v. Quillin (1969), 20 Ohio St.2d 6 [49 O.O. 2d 53], nor will the writ issue where an adequate remedy exists in the ordinary course of the law. State, ex rel. St. Sava, v. Riley (1973), 36 Ohio St.2d 171, 174 [65 O.O.2d 395]; State, ex rel. Ruggiero, v. Common Pleas Court (1963), 175 Ohio St. 361 [25 O.O.2d 258].
As the court below correctly concluded, not only are appellants seeking to control ordinary court procedure contrary to the prior pronouncements of this court by contesting appellee's bifurcation order through an action in procedendo, but appellants are also attempting to achieve this result despite possessing an adequate remedy at law, by way of direct appeal, at the conclusion of the proceedings whereby the lawfulness of appellee's order may be reviewed. Moreover, it is axiomatic that a direct appeal as of right constitutes a plain and adequate remedy in the ordinary cause of the law, State, ex rel. Cleveland, v. Calandra (1980), 62 Ohio St.2d 121, 122 [16 O.O.3d 143], the existence of which is fatal to a request for the extraordinary remedy of procedendo. State, ex rel. St. Sava, v. Riley, supra.
Appellants, however, seek to circumvent the principles established in the aforementioned cases by relying upon our decision in State, ex rel. Unger, v. Quinn (1984), 9 Ohio St.3d 190. According to appellants, that case stands for the proposition that procedendo will lie to compel a court to adhere to a specific statutory procedure. An examination of the case reveals that appellants' reliance thereon is misplaced.
The facts in Unger demonstrate that the Court of Common Pleas of Stark County declined to conduct a criminal trial subsequent to the issuance of an indictment charging unfair campaign practices in violation of R.C. 3599.091. Instead, the court transferred the action to the Alliance Municipal Court for prosecution. Acting upon a complaint in procedendo seeking an order compelling the common pleas court to try the case, this court issued the writ, concluding that pursuant to R.C. 3599.091 the court of common pleas possessed exclusive jurisdiction to conduct a trial of the underlying criminal action.
Contrary to appellants' contention, we did not issue a writ of procedendo in Unger directing the lower court to conduct a trial in any particular fashion; rather, consistent with traditional principles underlying the writ of procedendo, the writ was issued to compel the court to assume jurisdiction over a cause which it had previously refused to entertain. Conversely, in the case at bar, appellee has assumed jurisdiction over appellants' tort actions. Appellants, however, being displeased with the bifurcation order, and contrary to prior holdings of this court, have instead chosen to seek judicial review of appellee's order through the extraordinary remedy of procedendo in a manner which constitutes a clear attempt to control or interfere with court procedure, and for which an adequate remedy exists by way of direct appeal at the conclusion of the trials of the actions. State, ex rel. St. Sava, v. Riley, supra; State, ex rel. Ruggiero, v. Common Pleas Court, Supra.
For all of the foregoing reasons, the judgment of the court of appeals is affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.