Gabel v. Ambrose

2013 Ohio 3256

• Court: Ohio Court of Appeals
• Decided: July 24, 2013
• Docket: 99902
• Status: Published

Opinion

[Cite as Gabel v. Ambrose, 2013-Ohio-3256.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99902

KERMIT GABEL RELATOR

vs.

JUDGE DICK AMBROSE RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Mandamus and/or Procedendo Motion No. 465789 Order No. 466639

RELEASE DATE: July 24, 2013 FOR RELATOR

Kermit Gabel, Pro Se No. 551160 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43302

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} Kermit Gabel (“Gabel”) has filed a complaint for writ of mandamus and/or

procedendo. Gabel seeks an order from this court that requires Judge Dick Ambrose to

render rulings on motions filed in Cuyahoga C.P. Nos. CR-510594, CR-509892 and

CR-504062. Gabel indicates motions were filed on June 20, 2008, September 10, 2012,

and October 12, 2012; however, he does not indicate in which case(s) the motions were

filed. It is unclear exactly which motions are at issue in this original action, however,

Gabel generally refers to “motions to correct his sentence for void sentence” and “several

other procedural motions.” Judge Ambrose has moved for summary judgment, which

Gabel has not opposed, and we grant for the reasons that follow.

{¶2} Gabel’s complaint is defective in several respects that would warrant

dismissal of the complaint. Civ.R. 10(A); Jordan v. Cuyahoga Cty. Court of Common

Pleas, 8th Dist. No. 94578, 2011-Ohio-1813, ¶ 3 (failure to include addresses of the

parties and failure to caption the action in accordance with R.C. 2731.04 may be grounds

for dismissal). Further, the complaint is moot.

{¶3} Gabel is seeking rulings on motions that have been filed in the three cases

referenced above. We note, however, that Cuyahoga C.P. Nos. CR-504062 and

CR-509892 were both previously dismissed. Nonetheless, Judge Ambrose has submitted

journal entries that indicate he has ruled on motions that Gabel had filed in all three cases.

In CR-504062, Judge Ambrose denied Gabel’s motions to correct sentence filed on

September 10, 2012, October 12, 2012, and November 5, 2012, and denied his motion for

summary judgment that was filed on December 12, 2012. In CR-509892 and CR-510594, Judge Ambrose denied Gabel’s motions to amend his motions to correct

sentence that were filed on November 5, 2012. Gabel has not disputed Judge Ambrose’s

position that these rulings rendered Gabel’s complaint moot. Accordingly, Gabel is not

entitled to a writ of mandamus or procedendo. State ex rel. Culgan v. Kimbler, 132 Ohio

St.3d 480, 2012-Ohio-3310, 974 N.E.2d 88 (a writ of mandamus will not issue to compel

an act already performed); see also State ex rel. Pettway, 8th Dist. No. 99259,

2013-Ohio-1567, ¶ 2.

{¶4} Judge Ambrose’s motion for summary judgment is granted and Gabel’s

complaint for mandamus and/or procedendo is denied. Relator to pay costs. Costs

waived. The court directs the clerk of court to serve all parties with notice of this

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

{¶5} Writ denied.

KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR