[This opinion has been published in Ohio Official Reports at
74 Ohio St.3d 465.]
WRIGHT, APPELLANT, v. GHEE ET AL., APPELLEES.
[Cite as Wright v. Ghee, 1996-Ohio-283.]
Civil procedure—Dismissal and mandamus claim for failure to set forth the cause
of action in numbered paragraphs, as required by Civ.R. 10(B), not
appropriate, when.
(No. 95-1401—Submitted December 5, 1995—Decided February 7, 1996.)
APPEAL from the Court of Appeals for Franklin County, No. 95APD05-591.
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{¶ 1} On May 15, 1995, appellant, John L. Wright, filed a document entitled
“Application Requesting for A Writ of Habeas Corpus” in the Court of Appeals for
Franklin County. In the document, Wright sought habeas corpus and mandamus
relief. He filed no documents exhibiting the cause of his commitment, as required
by R.C. 2725.04(D) in habeas corpus, but instead asked the court to compel
discovery from respondents, the Ohio Adult Parole Authority and its chief, of all
documents in his parole file. In his “application” he alleged, among other issues,
that his parole was revoked as the result of an illegal search and seizure, in violation
of State ex rel. Wright v. Ohio Adult Parole Auth. (Apr. 28, 1994), Franklin App.
No. 93AP-622, unreported, 1994 WL 158904.
{¶ 2} On May 24, 1995, he filed a second document entitled “Application
Requesting for Declaratory And Injunctive Relief,” in which he raised essentially
the same issues as in the first document.
{¶ 3} On June 1, 1995, the court of appeals issued two journal entries, one
dismissing appellant’s application for habeas and mandamus because it did not
comply with Civ.R. 10(B) and set forth his claims in numbered paragraphs, and a
second dismissing the application for declaratory judgment and injunction for lack
of jurisdiction.
SUPREME COURT OF OHIO
{¶ 4} Appellant appeals to this court as a matter of right. On appeal, he
argues only the search and seizure issue, again citing State ex rel. Wright v. Ohio
Adult Parole Auth., supra.
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John L. Wright, pro se.
Betty D. Montgomery, Attorney General, and John J. Gideon, Assistant
Attorney General, for appellees.
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Per Curiam.
{¶ 5} We affirm the court of appeals’ dismissal of the complaint for
declaratory judgment and injunction, as courts of appeals lack jurisdiction in these
causes. State ex rel. Neer v. Indus. Comm. (1978), 53 Ohio St. 2d 22,
7 O.O.3d 64,
371 N.E.2d 842; State ex rel. Pressley v. Indus. Comm. (1967),
11 Ohio St. 2d 141,
40 O.O.2d 141,
228 N.E.2d 631, paragraph four of the syllabus. Moreover, we
affirm dismissal of the habeas claim for failure to attach documents, as required by
R.C. 2725.04(D). However, we reverse as to appellant’s mandamus claim.
{¶ 6} The court of appeals dismissed the habeas and mandamus claims for
failure to set forth the cause of action in numbered paragraphs, as required by Civ.R.
10(B). There is no doubt from the record that appellant’s “application” did not
conform to that rule, but was, as the court of appeals stated, “more in the nature of
a brief than a complaint.” However, the Staff Note to Civ.R. 10(B) suggests that
the proper remedy for failure to comply is granting a motion to separately state and
number, not sua sponte dismissal:
“Under present Ohio practice the penalty for failing to separately state and
number is a motion to separately state and number. Under the rule the same motion
should be used (although such motion is not specifically provided for in Rule 12),
but it should be granted as a practical matter, as has been the experience in federal
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January Term, 1996
courts under the same rule, only when confusion is caused by failure to separately
state and number such that the opposing party cannot properly answer. …”
{¶ 7} Accordingly, we hold that dismissal of the habeas and mandamus
claims for this procedural formality was not appropriate in this case.
{¶ 8} Appellees also argue that the court of appeals could have dismissed
the habeas petition under Hammond v. Dallman (1992), 63 Ohio St. 3d 666,
590
N.E.2d 744, for failure to attach commitment documents, as required by R.C.
2725.04(D), and for failure to attack jurisdiction. The jurisdictional argument is no
longer well taken. In State ex rel. Pirman v. Money (1993),
69 Ohio St. 3d 591,
635 N.E.2d 26, we held that habeas will lie for nonjurisdictional deprivations of
liberty if there is no adequate legal remedy. There is no appeal from a parole
revocation decision; therefore, there is no adequate legal remedy. However, the
cause in habeas corpus could have been properly dismissed for failure to comply
with R.C. 2725.04(D): “… [A] reviewing court is not authorized to reverse a
correct judgment merely because erroneous reasons were assessed as a basis
thereof.” State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994),
69
Ohio St.3d 217, 222,
631 N.E.2d 150, 154. Accordingly, we affirm dismissal of
the habeas claim on alternate grounds.
{¶ 9} Mandamus, however, is not subject to R.C. 2725.04(D), and in
mandamus, appellant may compel discovery. In State ex rel. Wright, supra, the
Court of Appeals for Franklin County allowed a writ of mandamus, compelling the
Ohio Adult Parole Authority to hold a new hearing excluding evidence derived
from unconstitutional searches, citing State v. Burkholder (1984),
12 Ohio St. 3d
205, 12 OBR 269,
466 N.E.2d 176, in which this court held that evidence derived
from an unlawful search must be excluded from probation revocation proceedings.
Wright was appealed to this court and remains pending on motion for
reconsideration. Accordingly, we find that the claim of unlawful search states a
potentially good cause of action in mandamus, and having rejected the grounds of
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SUPREME COURT OF OHIO
procedural formality upon which the court of appeals dismissed the claim in
mandamus, we reverse and remand for mandamus proceedings consistent with
State ex rel. Wright v. Ohio Parole Board Auth., supra.
Judgment affirmed in
part, reversed in part
and cause remanded.
MOYER, C.J., WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
DOUGLAS, J., concurs in judgment only.
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