Nestor v. Tone

2014 Ohio 3071

Opinion

[Cite as Nestor v. Tone, 2014-Ohio-3071.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

Michael Nestor, et al. Court of Appeals No. E-14-092

Petitioner (Relator)

v.

Hon. Tygh Tone DECISION AND JUDGMENT

Respondent Decided: July 10, 2014

*****

Christian M. Bates, for petitioner.

SINGER, J.

{¶ 1} This matter is before the court upon the complaint of relator, Michael

Nestor, for a writ of procedendo to compel the Hon. Tygh Tone to rule on pending

motions and set a trial date in a pending action, Hanko v. Nestor, Erie County Common

Pleas case No. 2001 CV 0304. {¶ 2} A complaint for a writ of procedendo can be dismissed sua sponte if it is

improperly captioned. Hill v. Kelly, 11th Dist. Trumbull No. 2011-T-0094, 2011-Ohio-

6341, ¶ 5, or fails to include the addresses of the parties. Simmons v. Saffold, 8th Dist.

Cuyahoga No. 94619, 2010-Ohio-918, ¶ 3.

{¶ 3} An action for a writ of procedendo must be made by petition, in the name of

the state on the relation of the person applying. Kimble v. McKay, 11th Dist. Trumbull

No. 2012-T-0033, 2012-Ohio-2707, ¶ 7. The petition caption must also contain the

addresses of all the parties. Civ.R. 10(A). Relator’s petition fails to comply with both of

these requirements. Therefore, we hereby order the sua sponte dismissal of relator’s

petition for a writ of procedendo. Relator is ordered to pay the court costs incurred.

{¶ 4} Pursuant to Civ.R. 58(B), the clerk is directed to serve upon all parties,

within three days, a copy of this decision in a manner prescribed by Civ.R. 5(B).

Writ denied.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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