Pomales v. Fuerst

2013 Ohio 4605

• Court: Ohio Court of Appeals
• Decided: October 15, 2013
• Docket: 100279
• Status: Published

Opinion

[Cite as Pomales v. Fuerst, 2013-Ohio-4605.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100279

ARCHIE T. POMALES RELATOR

vs.

HONORABLE NANCY FUERST RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Mandamus Order No. 468718 Motion No. 468307

RELEASE DATE: October 15, 2013 FOR RELATOR

Archie T. Pomales, pro se Inmate No. 24334 Huttonsville Correctional Center P.O. Box 1 Huttonsville, WV 26273

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Archie T. Pomales, relator, has petitioned this court to issue a writ of

mandamus to compel the trial court to rule on his motion to dismiss filed on May 9, 2013,

in State v. Pomales, Cuyahoga C.P. Nos. CR-95-329576 and CR-95-331107.

Respondent has filed a motion for summary judgment. For the reasons that follow, we

grant respondent’s motion for summary judgment and deny relator’s complaint for a writ

of mandamus because it is procedurally defective and moot.

{¶2} Relator did not properly designate the original action by using the name of

the state on the relation of the person applying, and he did not include the address of the

parties as required by Civ.R. 10(A) and 2731.04. The failure to caption an original

action properly constitutes sufficient grounds for dismissing the complaint. Rust v.

Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766; Barry

v. Galvin, 8th Dist. Cuyahoga No. 85990, 2005-Ohio-2324, ¶ 2, citing Allen v. Court of

Common Pleas of Allen Cty., 173 Ohio St. 226, 181 N.E.2d 270 (1962).

{¶3} Relator has further failed to comply with R.C. 2969.25 by failing to file an

affidavit detailing his prior civil filings. The Supreme Court has held, “The

requirements of R.C. 2969.25 are mandatory, and failure to comply with them subjects an

inmate’s action to dismissal.” State ex rel. White v. Bechtel, 99 Ohio St.3d 11,

2003-Ohio-2262, 788 N.E.2d 634, ¶ 5. Noncompliance with R.C. 2969.25 warrants

dismissal. State ex rel. Graham v. Niemeyer, 106 Ohio St.3d 466, 467, 2005-Ohio-5522,

835 N.E.2d 1250. {¶4} The complaint is also moot. Respondent’s motion for summary judgment

includes an attached copy of the trial court’s entry that was journalized on August 12,

2013, which demonstrates that a ruling has been rendered with regard to relator’s motion

to dismiss filed in each case on May 9, 2013. “[R]elief is unwarranted because mandamus

and procedendo will not compel the performance of a duty that has already been

performed.” State ex rel. Hopson v. Cuyahoga Cty. Court of Common Pleas, 135 Ohio

St.3d 456, 2013-Ohio-1911, 989 N.E.2d 49, ¶ 4.

{¶5} Accordingly, we grant respondent’s motion for summary judgment and

deny relator’s complaint for writ of mandamus. Costs are assessed against relator but

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).

{¶6} Writ denied.

__________________________________________ TIM McCORMACK, JUDGE

MARY J. BOYLE, P.J., and KENNETH A. ROCCO, J., CONCUR