Limbach v. Henson

2011 Ohio 1467

Opinion

[Cite as Limbach v. Henson, 2011-Ohio-1467.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: PAUL R. LIMPACH : Hon. W. Scott Gwin, P.J. : Hon. Julie A. Edwards, J. Petitioner : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2010-CA-132 JUDGE JAMES D. HENSON : : Respondent : OPINION

CHARACTER OF PROCEEDING: Writ

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: March 24, 2011

APPEARANCES:

For: Petitioner For: Respondent

PAUL L. LIMPACH PRO SE KIRSTEN PSCHOLKA-GARTNER Marion Correctional Institute Assistant Richland County Prosecutor BOX 57 38 South Park, 2nd Floor MARION, OH 43301 Mansfield, OH 44902 [Cite as Limbach v. Henson, 2011-Ohio-1467.]

Gwin, P.J.

{¶1} Petitioner, Paul R. Limpach, has filed a petition requesting this Court issue

a writ of procedendo compelling Judge James Henson of the Richland County Court of

Common Pleas to rule on Petitioner’s Motion to Return Property. This motion was filed

in Richland County on April 30, 2010. The instant complaint was filed on November 18,

2010. The trial court issued a ruling on the motion in the criminal case on December 8,

2010.

{¶2} Respondent has filed a motion to dismiss the petition based upon the

petition being made moot because the trial court has now issued on a ruling on the

motion.

{¶3} 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.

{¶4} Because the requested relief has already been obtained, we find the

petition for writ of mandamus is moot and grant Respondent’s motion to dismiss.

{¶5} MOTION TO DISMISS GRANTED.

{¶6} CAUSE DISMISSED. Richland County, Case No. 2010-CA-132 3

{¶7} COSTS TO RELATOR.

{¶8} IT IS SO ORDERED.

By Gwin, P.J.,

Edwards, J., and

Delaney, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JULIE A. EDWARDS

_________________________________ WSG:clw 0307 HON. PATRICIA A. DELANEY [Cite as Limbach v. Henson, 2011-Ohio-1467.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

PAUL R. LIMPACH : : Petitioner : : : -vs- : JUDGMENT ENTRY : JUDGE JAMES D. HENSON : : : Respondent : CASE NO. 2010-CA-132

For the reasons stated in our accompanying Memorandum-Opinion, the motion to

dismiss is granted. Costs to Petitioner.

_________________________________ HON. PATRICIA A. DELANEY