Pearson v. Branstool

2013 Ohio 3885

• Court: Ohio Court of Appeals
• Decided: September 9, 2013
• Docket: 13-CA-46
• Status: Published

Opinion

[Cite as Pearson v. Branstool, 2013-Ohio-3885.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

ROBERT PEARSON JUDGES: Hon. William B. Hoffman, P.J. Relator Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vs- Case No. 13-CA-46 JUDGE W. DAVID BRANSTOOL

Respondent OPINION

CHARACTER OF PROCEEDING: Writ for Mandamus/Procedendo

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: September 9, 2013

APPEARANCES:

For Relator For Respondent

ROBERT PEARSON, PRO SE MARK A. ZANGHI Marion Correctional Institution Assistant Prosecuting Attorney #547-179 20 South Second Street, 4th Floor P.O. Box 57 Newark, Ohio 43055 Marion, Ohio 43301 Licking County, Case No. 13-CA-46 2

Hoffman, P.J.

{¶1} Relator Robert Pearson has filed a “Complaint/Petition for Mandamus

and/or Writ of Procedendo under the Jurisdiction of Article IV, Section 3 of the Ohio

Constitution.” Relator requests Respondent be ordered to rule on a motion filed by

Relator on April 28, 2011. Respondent has filed a motion to dismiss arguing the relief

sought has already been obtained and arguing Relator has failed to meet the procedural

requirements for a writ of mandamus.

{¶2} To be entitled to the issuance of a writ of mandamus, the Relator must

demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on the

respondent's part to perform the act; and, (3) that there exists no plain and adequate

remedy in the ordinary course of law. State ex rel. Master v. Cleveland (1996), 75 Ohio

St.3d 23, 26-27, 661 N.E.2d 180; State ex rel. Harris v. Rhodes (1978), 5 Ohio St.2d 41,

324 N.E.2d 641, citing State ex rel. National City Bank v. Bd of Education (1977) 520

Ohio St.2d 81, 369 N.E.2d 1200.

{¶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} Respondent ruled on Relator’s April 28, 2011 motion on July 12, 2011.

Because the relief sought has already been rendered by the trial court, Relator has no

clear right to the relief prayed for, and the Respondent has no clear legal duty to

perform an act which it has already performed. State ex rel. Lewis v. Boggins, 2007

WL 4395630 (Ohio App. 5 Dist.). Therefore, a writ of mandamus will not issue. Licking County, Case No. 13-CA-46 3

{¶5} 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).

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

for a writ of procedendo has become moot.

{¶7} For these reasons, Respondent’s Motion to Dismiss is granted.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

___________________________________ HON. WILLIAM B. HOFFMAN

___________________________________ HON. SHEILA G. FARMER

___________________________________ HON. PATRICIA A. DELANEY Licking County, Case No. 13-CA-46 4

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

ROBERT PEARSON : : Relator : : -vs- : JUDGMENT ENTRY : JUDGE W. DAVID BRANSTOOL : : Respondent : Case No. 13-CA-46

For the reasons stated in our accompanying Opinion, Respondent’s Motion to

Dismiss is granted. Costs to Relator.

___________________________________ HON. PATRICIA A. DELANEY