Albino v. Clerk of Courts, Stark Cty. Probate Court

2012 Ohio 235

Opinion

[Cite as Albino v. Clerk of Courts, Stark Cty. Probate Court, 2012-Ohio-235.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

ANGEL L. ALBINO-ALBINO

Relator

-vs-

CLERK OF COURTS, PROBATE COURT OF STARK COUNTY

Respondent

JUDGES: Hon. William B. Hoffman, P .J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

Case No. 2011 CA 00205

OPINION

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: January 23, 2012

APPEARANCES:

For Relator For Respondent

ANGEL L. ALBINO-ALBINO JOHN D. FERRERO PRO SE PROSECUTING ATTORNEY MANSFIELD CORRECTIONAL INST. AMY A. SABINO Post Office Box 788 ASSISTANT PROSECUTOR Mansfield, Ohio 44901 110 Central Plaza South, Suite 510 Canton, ohio 44702 Wise, J.

{¶1} Relator, Angel L. Albino-Albino, has filed a Petition for Writ of Mandamus

requesting a writ be issued which would require Respondent to accept an objection to a

petition for adoption for filing. Respondent, Judge Dixie Park, has filed a Motion to

Dismiss.

{¶2} Relator presented an objection to a petition for adoption to the Clerk of the

Probate Court. The objection was returned to Respondent with a letter indicating the

objection would not be filed without a filing fee. The letter also advised Respondent that

the filing fee would not be waived under any circumstances.

{¶3} Once the instant Petition was filed, Respondent through counsel agreed to

allow Relator to file an objection without advancing the filing fee. Relator in turn did file

the objection with Respondent on October 20, 2011.

{¶4} For a writ of mandamus to issue, the relator must have a clear legal right

to the relief prayed for, the respondents must be under a clear legal duty to perform the

requested act, and relator must have no plain and adequate remedy in the ordinary

course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,

451 N.E.2d 225.

{¶5} The Supreme Court has held, “Neither procedendo nor mandamus will

compel the performance of a duty that has already been performed. State ex rel. Grove

v. Nadel (1998), 84 Ohio St.3d 252, 253, 703 N.E.2d 304, 305.” State ex rel. Kreps v.

Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668. {¶6} Because the relief requested in the Petition has been performed, we find

the Petition to be moot. For this reason, Respondent’s Motion to Dismiss is granted.

The request for the issuance of a writ of mandamus is denied.

By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.

___________________________________

JUDGES IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

ANGEL L. ALBINO-ALBINO : : Relator : : -vs- : JUDGMENT ENTRY : CLERK OF COURTS, PROBATE : COURT OF STARK COUNTY : : Respondent : Case No. 2011 CA 00205

For the reasons stated in our accompanying Memorandum-Opinion,

Respondent’s Motion to Dismiss is granted. The request for the issuance of a writ of

mandamus is denied.

Court costs are waived.

JUDGES