State ex rel. Weiss v. Hoover - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE EX REL. WEISS v. HOOVER, JUDGE, ET AL.
[Cite as State ex rel. Weiss v. Hoover (1999), ___ Ohio St.3d ___.]
Procedendo to compel municipal court judge to proceed with a forcible entry
and detainer action filed by relator -- Writ granted, when.
(No. 98-2450 -- Submitted January 12, 1999 -- Decided March 3, 1999.)
IN PROCEDENDO.

Relator, Mark R. Weiss, leased certain property in Twinsburg, Ohio, to
Busch Entertainment Corporation, d.b.a. Sea World of Ohio ("Busch"). Busch
failed to pay $6,746.40, which Weiss claimed as additional rent under the terms of
the lease. On October 5, 1998, Weiss notified Busch to leave the premises
because of Busch's alleged default.

On October 19, 1998, Busch filed a complaint in the Portage County Court
of Common Pleas for a judgment declaring Busch's right to continued use of the
property free of any further demand by Weiss to pay the claimed additional rent.
On October 21, before being served with a copy of Busch's declaratory judgment
complaint, Weiss filed a complaint in respondent Cuyahoga Falls Municipal Court
against Busch for forcible entry and detainer and breach of contract. Weiss
requested restitution of the premises and damages in the amount of $6,746.40.

On November 5, respondent Cuyahoga Falls Municipal Court Judge Kim
Hoover granted Busch's motion to stay the municipal court action brought by
Weiss, pending resolution of Busch's common pleas court declaratory judgment
action, and transferred the municipal court action to the common pleas court to be
consolidated with that case for further disposition.

Shortly thereafter, Weiss filed this action for a writ of procedendo to compel
Judge Hoover and the municipal court to proceed on his forcible entry and

detainer claim.1 Respondents did not file any timely response to Weiss's
complaint.

This cause is now before the court for its determination under S.Ct.Prac.R.
X(5).
__________________

Michael D. Baker, for relator.
__________________

Per Curiam. Pursuant to S.Ct.Prac.R. X(5), we must determine whether
dismissal, an alternative writ, or a peremptory writ is appropriate. Under the
applicable standard, if it appears beyond doubt that relator is entitled to the
requested extraordinary relief, a peremptory writ should issue. State ex rel. Dist.
1199, Health Care & Soc. Serv. Union, SEIU, AFL-CIO v. Lawrence Cty. Gen.
Hosp. (1998), 83 Ohio St.3d 351, 353, 699 N.E.2d 1281, 1282.

Weiss claims that he is entitled to a writ of procedendo. In order to be
entitled to a writ of procedendo, Weiss must establish a clear legal right to require
respondents to proceed, a clear legal duty on the part of respondents to proceed,
and the lack of an adequate remedy in the ordinary course of law. State ex rel.
Sherrills v. Cuyahoga Cty. Court of Common Pleas (1995), 72 Ohio St.3d 461,
462, 650 N.E.2d 899, 900. 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. Miley v. Parrott (1996), 77 Ohio St.3d 64, 65, 671 N.E.2d
24, 26. For example, a writ of procedendo will issue requiring a judge to proceed
to final judgment if the judge erroneously stayed the proceeding based on a
pending case that has no effect on the court's jurisdiction to proceed. State ex rel.
Crandall, Pheils & Wisniewski v. DeCessna (1995), 73 Ohio St.3d 180, 184, 652

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N.E.2d 742, 745. For the following reasons, Weiss is entitled to a peremptory
writ.

First, Judge Hoover and the municipal court erroneously stayed Weiss's
forcible entry and detainer action. "To allow the Municipal Court the discretion to
stay proceedings in this cause would be to defeat the purpose of the forcible entry
and detainer statutes (i.e., immediate possession), to permit their circumvention by
merely bringing title into question in a collateral suit in common pleas court, and
to deny through successive appeals the relief they were intended to provide."
State ex rel. Carpenter v. Warren Mun. Court (1980), 61 Ohio St.2d 208, 210, 15
O.O.3d 225, 227, 400 N.E.2d 391, 393. In Carpenter, we granted a writ of
procedendo ordering a municipal court to proceed in a forcible entry and detainer
action that it had stayed pending the outcome of a previously filed common pleas
court action involving the same parties and raising an issue concerning title to the
same property. Respondents similarly had a duty to proceed on Weiss's forcible
entry and detainer claim here.

Second, the jurisdictional priority rule does not justify respondents' decision
to stay the forcible entry and detainer claim pending resolution of Busch's
declaratory judgment action in common pleas court. If a subsequently filed case
does not involve the same cause of action, the first suit will not normally prevent
the subsequent case. State ex rel. Red Head Brass, Inc. v. Holmes Cty. Court of
Common Pleas (1997), 80 Ohio St.3d 149, 151, 684 N.E.2d 1234, 1236. The
forcible entry and detainer claim is not the same cause of action as the declaratory
judgment claim.

More specifically, we have held that " `[s]ince the forcible entry and
detainer action relates only to present possession and not title, the fact that another
action is pending relating to the issue of title does not constitute a bar to the action

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in forcible [entry and] detainer.' " Carpenter, 61 Ohio St.2d at 209-210, 15
O.O.3d at 226, 400 N.E.2d at 393, quoting Haas v. Gerski (1963), 175 Ohio St.
327, 330, 25 O.O.2d 212, 214, 194 N.E.2d 765, 767. Application of the
jurisdictional priority rule to bar a forcible entry and detainer action from
proceeding based on a previously filed collateral proceeding bringing title to the
same property into question is "inequitable and inappropriate in a recovery of real
property case." Cleveland v. A.J. Rose Mfg. Co. (1993), 89 Ohio App.3d 267, 275,
624 N.E.2d 245, 250.

Based on the foregoing, Weiss is entitled to the requested writ. Carpenter.
Weiss has a clear legal right to have his forcible entry and detainer action proceed,
and respondents have a corresponding clear legal duty to proceed. Weiss lacks an
adequate remedy in the ordinary course of law. No alternate remedy will further
the purpose behind forcible entry and detainer, which is to provide a summary,
extraordinary, and speedy method for the recovery of possession of real estate.
See State ex rel. GMS Mgt. Co., Inc. v. Callahan (1989), 45 Ohio St.3d 51, 55, 543
N.E.2d 483, 487. And no further evidence or argument is required for us to
resolve this case. See State ex rel. Bowman v. Columbiana Cty. Bd. of Commrs.
(1997), 77 Ohio St.3d 398, 401, 674 N.E.2d 694, 696. Accordingly, we grant
Weiss a peremptory writ of procedendo to compel respondents to proceed with the
forcible entry and detainer action.
Writ granted.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
FOOTNOTE:
1.
Weiss does not request that respondents proceed on his breach-of-contract
claim.

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