COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69566 STATE EX REL. METRO BUILDERS : INC., ET AL. : Relators : PETITION FOR WRIT OF : PROCEDENDO -vs- : : JUDGE LARRY JONES : : Respondent : : DATE OF ANNOUNCEMENT : OF DECISION : DECEMBER 14, 1995 JUDGMENT : DENIED AND CASE DISMISSED. DATE OF JOURNALIZATION : APPEARANCES: For relator Metro Builders: For respondent Larry A. Jones, Judge: Charles Gruenspan, Esq. Patrick Dukes Charles Gruenspan Co., LPA Assistant Director of Law 900 Three Commerce Park Sq. City Hall - Room 106 23200 Chagrin Boulevard 601 Lakeside Avenue Cleveland, Ohio 44122 Cleveland, Ohio 44114 For relator Virgil D. Tent dba Tent Construction: Michael Troy Watson, Esq. Watson and Watson, Attys. 1367 East 6th Street, #400 Cleveland, Ohio 44114 - 2 - On September 18, 1995, the relator, Metro Builders, Inc., commenced this procedendo action against the respondent, Judge Larry Jones, to compel him to file a "satisfactory" Statement of Evidence under Appellate Rule 9(C) or to grant a new trial in the underlying case, Tent v. Metro Builders, Inc., Cleveland Municipal Court Case No. 90 CVF 32607. On October 30, 1995, Judge Jones, through the Director of Law for the City of Cleveland, filed an "Answer Brief" which argued that the procedendo action should be dismissed because an adequate remedy at law exists and because the judge fulfilled his duty. On November 7, 1995, Metro Builders filed a "Reply Brief" in opposition to the judge's "Answer Brief." For the following reasons, this court dismisses this procedendo action. First, it is appropriate to address the procedural posture of the case. The "Answer Brief" is an anomalous filing in an original writ action which the Rules of Civil Procedure govern. Local Rule 1(B). Under Civil Rule 7 after the filing of a complaint either an answer or a motion is permitted; "[n]o other pleading shall be allowed ***." Thus, an "Answer Brief" is not a permitted pleading. However, this "Answer Brief" argues for dismissal and includes exhibits. In substance it is a motion for summary judgment. The relator fully addresses the judge's arguments in its "Reply Brief." Accordingly, this court recognizes that the issues have been fully presented and are ripe for adjudication and, thus, converts the "Answer Brief" to a motion for summary judgment. - 3 - In the underlying case Virgil Tent dba Tent Construction Company sued Metro Builders and its president for willfully failing to pay a debt, arising out of a construction project in which Tent was a subcontractor for Metro Builders. After a bench trial on May 1, 1992, Judge Connally rendered a $9,800.00 judgment for Tent. No record was made during the trial; thus, when Metro Builders appealed, it sought a statement of evidence pursuant to App. R. 9(C). Judge Connally prepared a two and one-half page statement. On appeal Metro Builders submitted six assignments of error. This court overruled two, but found that the statement of evidence was insufficient to determine the remaining four. Thus, this court remanded the case to the trial court "to settle and approve a statement in compliance with App. R. 9, before appellants' assignments of error can be addressed." Tent v. Metro Builders, Inc. (April 7, 1994), Cuyahoga App. No. 63799, unreported. On remand Judge Connally recused herself at Metro Builders' request. Respondent Judge Jones replaced her as the trial judge. On August 15, 1995, Judge Jones filed a one and one-half page entry for a statement of evidence. Metro Builders then commenced this procedendo action. In State ex rel. Utley v. Abruzzo (1985), 17 Ohio St.3d 203, 204, 478 N.E.2d 789, the Supreme Court of Ohio enunciated the principles governing procedendo: The writ itself is merely an order to a court to proceed to judgment. "It does not in any case attempt to control the inferior court as to what that judgment - 4 - should be. *** It is well-settled that the writ of procedendo will not issue for the purpose of controlling or interfering with ordinary court procedure, *** nor will the writ issue where an adequate remedy exists in the ordinary course of the law." State ex rel. Ratliff v. Marshall (1972), 30 Ohio St.2d 101, 282 N.E.2d 582. In State ex rel. Hansen v. Reed (1992), 63 Ohio St.3d 597, 598, 589 N.E.2d 1324, the court noted: "Neither mandamus nor procedendo can be used to control judicial discretion." Cf. State ex rel. Ney v. Niehuas (1987), 33 Ohio St.3d 118, 515 N.E.2d 914 - mandamus may not control judicial discretion, even if such discretion is grossly abused. Finally, the supreme court has held that procedendo is "appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment." State ex rel. Sherrills v. Court of Common Pleas of Cuyahoga County (1995), 72 Ohio St.3d 461. In the instant case the respondent has prepared a statement of evidence which the court will assume, arguendo, is inadequate. Nevertheless, procedendo is inappropriate. Ordering the respondent to proceed to judgment by preparing a sufficient statement of evidence would exceed the narrow limits of procedendo and would necessarily impose control on what the "judgment" should be. In determining whether the respondent had complied with the writ, this court would have to examine the revised statement of evidence and opine on its sufficiency. If this court was still unsatisfied about the statement's sufficiency, as it well might given the - 5 - peculiar procedural posture of the underlying case, it would then force the respondent to revise the statement again and again, until satisfied. This would clearly be controlling what the judgment should be and interfering with ordinary court procedure. Moreover, the limited record in a writ action may make it very difficult to determine what is a sufficient statement of evidence. Similarly, granting the relator's alternative relief, ordering the respondent to grant a new trial, would even more blatantly violate the principles of procedendo. Forcing the respondent to conduct a trial after he had prepared and filed the requested statement of evidence would be heavy handed interference with the trial court's ordinary procedure. Alternatively, the writ should not issue from the viewpoint of discretion. As stated above, the special writs do not control judicial discretion, even if such discretion is grossly abused. The writs of mandamus and procedendo lie merely to compel a court to complete a duty or to exercise that discretion. In the instant case the respondent has fulfilled his duty; he has prepared and filed a statement of evidence. Even if that statement of evidence is patently deficient, it is still the complete exercise of discretion with which the extraordinary writs may not interfere. Moreover, the relator has adequate remedies at law. The issue of whether the statement of evidence is sufficient may and should be presented to this court on appeal. App. R. 9(E) provides for the correction or modification of the record. It specifically - 6 - permits the court of appeals on proper suggestion or on its own initiative to direct that omissions and misstatements be corrected and if necessary that supplemental records be prepared, certified and submitted. The last sentence of this rule provides: "All other questions as to the form and content of the record shall be presented to the court of appeals." The Supreme Court of Ohio affirmed this rule in State ex rel. Fant v. Trumbo (1986), 22 Ohio St.3d 207, 484 N.E.2d 1316, in which Mr. Fant sought a mandamus to compel a trial court to accept his proposed 9(C) statement. In affirming the decision denying Mr. Fant his requested relief, the supreme court stated: "Any questions appellant has concerning the adequacy or accuracy of [the judge]'s statement of the evidence or proceeding can be raised on appeal to the court of appeals." Id. at 209. The court then cited App. R. 9(E) as the means of raising such questions concerning the adequacy or accuracy of the record. Admittedly, there are some conflicting authorities on this point. Associated Estates Corporation v. Fellows (1983), 11 Ohio App.3d 112, 463 N.E.2d 417; State v. Cross (1990), 55 Ohio St.3d 71, 564 N.E.2d 54, cert. denied (1991), 111 S.Ct. 1584; and State ex rel. Martinelli v. Corrigan (1994), 68 Ohio St.3d 362, 626 N.E.2d 954 indicate that mandamus is the appropriate remedy to resolve factual disputes about the record. Nevertheless, this court is now persuaded that the holding in Fant v. Trumbo is the proper and better rule of law. First, the language of Rule 9(E) is clear: the court of appeals may entertain all questions on the - 7 - content of the record. Fant affirms this clarity. Moreover, the court of appeals in exercising its appellate jurisdiction is in a better position to determine such questions than the court is in exercising its original jurisdiction in writs. On appeal the court will have all other parts of the record before it automatically and will be better able to deduce the rest of the record. Moreover, the court in the exercise of its appellate jurisdiction may have more latitude in fashioning a remedy than the court in its original jurisdiction might have. For example, in this case it may be necessary to order a new trial in order to have an adequate record; this court in its appellate jurisdiction has the power to remand cases for new trial and does so whenever necessary. This court in its writ jurisdiction is severely limited by the strict and narrow elements of procedendo and mandamus. As explained above, in a writ action this court may not interfere with a trial court's discretion, even if the discretion is grossly abused. It may be prudent to conduct a new trial, but there may not be a clear legal duty or a clear legal right to demand a new trial. Finally, by having the court in its appellate jurisdiction, as compared to a different panel exercising its original jurisdiction, determine the questions concerning the record, the risk of conflicting decisions is reduced. Metro Builders' argument that there is no adequate remedy at law because filing the statement of evidence is not a final, appealable order is not persuasive. The procedural posture is - 8 - analogous to post-conviction petitions in which the matter is not ripe for appeal until findings of fact and conclusions of law are filed. When those are filed, the judgment of the trial court becomes a final, appealable order. Additionally and perhaps more pertinent, a motion to reinstate would bring this case back to the court of appeals. This court's original opinion envisioned the case being returned to this court for a determination of the remaining assignments of error once a new statement of evidence was filed. The case is now arguably in such a posture. Accordingly, the writ of procedendo is denied and this case is dismissed. Relator to pay costs. SARA J. HARPER, J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE .