Foster v. Friedland

2016 Ohio 7230

Opinion

[Cite as Foster v. Friedland, 2016-Ohio-7230.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104718

NATHANIEL FOSTER

RELATOR

vs.

CAROLYN FRIEDLAND, JUDGE RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Mandamus Motion No. 498872 Order No. 500097

RELEASE DATE: October 4, 2016 FOR RELATOR

Nathaniel Foster, pro se Inmate No. 369-398 Richland Correctional Institution P.O. Box 8107 Mansfield, Ohio 44901

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:

{¶1} On July 11, 2016, the relator, Nathaniel Foster, commenced this mandamus

action against the respondent, Judge Carolyn Friedland, to compel the judge to issue a

ruling on his January 26, 2016 motion to vacate a void judgment that Foster filed in the

underlying case, State v. Foster, Cuyahoga

C.P. No. CR-98-370295-B. On August 8, 2016, the respondent judge moved for

summary judgment on the grounds of mootness and procedural defects. Attached to the

dispositive motion is a copy of a certified, file-stamped

August 4, 2016 journal entry that denies the subject motion. The respondent also

argues that relator’s complaint is defective because the caption does not include “State ex

rel.” Foster never filed a response. For the following reasons, this court grants the

judge’s motion for summary judgment.

{¶2} First, the petition is defective because it is improperly captioned. Foster

styled this petition as “Nathaniel Foster v. Carolyn Friedland, Judge.” R.C. 2731.04

requires that an application for a writ of mandamus “must be by petition, in the name of

the state on the relation of the person applying.” This failure to properly caption a

mandamus action is sufficient grounds for denying the writ and dismissing the petition.

Maloney v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226, 181 N.E.2d 270

(1962). {¶3} Moreover, the attached journal entry established that the judge fulfilled her

duty to decide the motion and that Foster received his requested relief, a ruling. 1

Therefore, this mandamus action is moot.

{¶4} Accordingly, this court grants the judge’s motion for summary judgment

and denies the application for a writ of mandamus. Respondent to pay costs; costs

waived. This court directs the clerk of courts to serve all parties notice of this judgment

and its date of entry upon the journal as required by Civ.R. 58(B).

{¶5} Writ denied.

SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, P.J., and ANITA LASTER MAYS, J., CONCUR

1The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief and (3) there must be no adequate remedy at law. Additionally, although mandamus may be used to compel a court to exercise judgment or to discharge a function, it may not control judicial discretion, even if that discretion is grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987).