2001 OHIO 297 - Howard v. Spore

[This decision has been published in Ohio Official Reports at

91 Ohio St.3d 131

.]




                HOWARD, APPELLANT, v. SPORE, JUDGE, APPELLEE.
                     [Cite as Howard v. Spore,

2001-Ohio-297

.]
Complaint for writ of procedendo to compel municipal court judge to rule on
        relator’s pending motions in a personal injury action—Mandamus sought
        to compel municipal court judge to report alleged ethical misconduct by
        an opposing attorney—Dismissal of case by court of appeals affirmed.
    (No. 00-1645—Submitted December 12, 2000—Decided March 7, 2001.)
        APPEAL from the Court of Appeals for Lucas County, No. L-11-79.
                                  __________________
        Per Curiam.
        {¶ 1} Appellant, Gregory T. Howard, filed a personal injury action in the
Toledo Municipal Court. Appellee, Judge Judson P. Spore of the Perrysburg
Municipal Court, was assigned to the case.
        {¶ 2} In July 1999, Howard filed a motion for new trial or to amend findings
and judgments. In the same motion, Howard filed an affidavit of disqualification
against Judge Spore.
        {¶ 3} In 2000, Howard filed a complaint in the Court of Appeals for Lucas
County for a writ of procedendo to compel Judge Spore to rule on his pending
motions. Howard also requested a writ of mandamus to compel Judge Spore to
report alleged ethical misconduct by an opposing attorney in the underlying case.
Judge Spore filed a motion to dismiss.
        {¶ 4} In his appeal of right, Howard essentially contends that the court of
appeals erred in dismissing his action in procedendo and mandamus. For the
following reasons, Howard’s contention is meritless.
        {¶ 5} Howard is not entitled to a writ of procedendo because Judge Spore
neither refused nor unnecessarily delayed proceeding to judgment. State ex rel.
                            SUPREME COURT OF OHIO




Weiss v. Hoover (1999),

84 Ohio St.3d 530, 532

705 N.E.2d 1227, 1229

. Under
R.C. 2701.031(D)(1), Howard’s affidavit of disqualification prevented Judge Spore
from ruling on Howard’s substantive motions in the underlying case until the
presiding judge of the common pleas court decided the affidavit. See State ex rel.
Kreps v. Christiansen (2000),

88 Ohio St.3d 313, 317-318

725 N.E.2d 663, 667

.
       {¶ 6} Further, Howard is not entitled to a writ of mandamus to compel
Judge Spore to report ethical misconduct because Howard has or had an adequate
legal remedy by filing a grievance under Gov.Bar R. V. See State ex rel. Forsyth
v. Brigner (1999),

86 Ohio St.3d 299, 300

714 N.E.2d 922, 923-924

 (“A plain and
adequate remedy in the ordinary course of law precludes extraordinary relief in
mandamus”); cf. Christensen v. Bd. of Commrs. on Grievances & Discipline
(1991),

61 Ohio St.3d 534, 537

575 N.E.2d 790, 792

 (“[The] disciplinary
procedure is the equivalent of [an] appeal … and is an adequate remedy at law”).
Further, to the extent that Howard may have already unsuccessfully invoked this
alternate remedy, he may not relitigate the same issue by way of mandamus. State
ex rel. Smith v. Fuerst (2000),

89 Ohio St.3d 456, 457

732 N.E.2d 983, 985

.
       {¶ 7} Based on the foregoing, the court of appeals properly dismissed the
case. Accordingly, we affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
       MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
       RESNICK, J., not participating.
                              __________________
       Gregory T. Howard, pro se.
       Rayle, Matthews & Coon and Max E. Rayle, for appellee.
                              __________________




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