Monk v. Marcelain

2014 Ohio 2131

Opinion

[Cite as Monk v. Marcelain, 2014-Ohio-2131.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

DANIEL L. MONK JUDGES: Hon. William B. Hoffman, P.J. Relator Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 13-CA-116 JUDGE THOMAS M. MARCELAIN

Respondent OPINION

CHARACTER OF PROCEEDING: Writ of Procedendo

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: May 12, 2014

APPEARANCES:

For Relator For Respondent

DANIEL MONK, PRO SE KENNETH W. OSWALT Inmate No. A646845 Licking County Prosecutor Chillicothe Correctional Institution P.O. Box 5500 By: ANTHONY W. STOCCO 15802 State Route104 N. Assistant Prosecuting Attorney Chillicothe, Ohio 45601 20 South Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 13-CA-116 2

Hoffman, P.J.

{¶1} Relator, Daniel L. Monk, has filed a complaint for Writ of Procedendo.

Relator requests Respondent Judge Thomas M. Marcelain be ordered to rule on a

motion filed in the trial court on July 23, 2013. On December 18, 2013 Respondent

ruled upon the motion. Respondent has filed a motion to dismiss the instant Petition

because his ruling upon the motion has made the petition moot.

{¶2} To be entitled to a writ of procedendo, “a relator must establish a clear

legal right to require the court to proceed, a clear legal duty on the part of the court to

proceed, and the lack of an adequate remedy in the ordinary course of law.” Miley,

supra, at 65, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas

(1995), 72 Ohio St.3d 461, 462. The Supreme Court has noted, “The writ of procedendo

is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to

proceed to judgment. It does not in any case attempt to control the inferior court as to

what that judgment should be.” State ex rel. Davey v. Owen, 133 Ohio St. 96, *106, 12

N.E.2d 144, * *149 (1937).

{¶3} The Supreme Court has held procedendo will not issue where the

requested relief has been obtained, “Neither procedendo nor mandamus will compel the

performance of a duty that has already been performed.” State ex rel. Kreps v.

Christiansen, 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668 (Ohio,2000). Licking County, Case No. 13-CA-116 3

{¶4} Because Respondent has issued a ruling on Relator’s motion, the request

for a writ of procedendo has become moot. For this reason, Respondent’s Motion to

Dismiss is granted.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur