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State ex rel. Watkins v. Eighth Dist. Court of Appeals8/5/1998
Per Curiam.
Cleveland Clinic seeks to intervene as a respondent. Cleveland Clinic is the appellant in the underlying proceeding stayed by the court of appeals. Based on our duty to liberally construe Civ.R. 24 in favor of intervention, Cleveland Clinic's compliance with the mandatory procedural requirements of Civ.R. 24(C), and relators' failure to object to Cleveland Clinic's intervention, we grant Cleveland Clinic's motion and allow it to intervene as a respondent here. State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections (1997), 80 Ohio St.3d 182, 184, 685 N.E.2d 507, 509.
S.Ct.Prac.R. X(5) provides that " fter the time for filing an answer to the complaint or a motion to dismiss, the Supreme Court will either dismiss the case or issue an alternative or a peremptory writ, if a writ has not already been issued."
Under S.Ct.Prac.R. X(5), we will dismiss the cause if it appears beyond doubt, after presuming the truth of all material factual allegations of the complaint and making all reasonable inferences in favor of relators, that relators are not entitled to the requested extraordinary relief. State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 106, 108, 647 N.E.2d 799, 801-802. If, however, the complaint may have merit, we will grant an alternative writ. Staff and Committee Notes to S.Ct.Prac.R. X(5). Finally, if it appears beyond doubt that relators are entitled to the requested extraordinary relief, we will issue a peremptory writ. State ex rel. Stern v. Mascio (1998), 81 Ohio St.3d 297, 298, 691 N.E.2d 253, 254.
In their complaint, relators requested a writ of mandamus to compel the court of appeals to lift the stay in Cleveland Clinic's appeal. But in their final filing, they requested extraordinary relief in either mandamus or procedendo.
We will treat relators' complaint for a writ of mandamus as a complaint in procedendo because " lthough mandamus will lie in cases of a court's undue delay in entering judgment, procedendo is more appropriate since ' n inferioscourt's refusal or failure to timely dispose of a pending action is the ill a writ of procedendo is designed to remedy.' " State ex rel. Dehler v. Sutula (1995), 74 Ohio St.3d 33, 35, 656 N.E.2d 332, 333, quoting State ex rel. Levin v. Sheffield Lake (1994), 70 Ohio St.3d 104, 110, 637 N.E.2d 319, 324.
Extraordinary relief in 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. Consequently, a writ of procedendo will issue to require a court to proceed to final judgment if the court has erroneously stayed the proceeding. State ex rel. Crandall, Pheils & Wisniewski v. DeCessna (1995), 73 Ohio St.3d 180, 184, 652 N.E.2d 742, 745; Miley.
The court of appeals initially stayed Cleveland Clinic's appeal based on the Franklin County Common Pleas Court's December 1997 rehabilitation order concerning PIE and R.C. 3903.15(A). The continued stay of the appeal, however, is based on the common pleas court's March 1998 liquidation order, which stayed pending proceedings in which "PIE is a party or is obligated to defend a party in any court in this state" for six months. In extraordinary writ actions, a court is not limited to considering facts and circumstances at the time the proceeding is commenced, but should consider facts and conditions at the time it determines whether to grant the writ. See State ex rel. Jones v. Montgomery Cty. Court of Common Pleas (1996), 75 Ohio St.3d 642, 643,
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