Queer v. Henson

2013 Ohio 4668

• Court: Ohio Court of Appeals
• Decided: September 30, 2013
• Docket: 13CA67
• Status: Published

Opinion

[Cite as Queer v. Henson, 2013-Ohio-4668.]

IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT RICHLAND COUNTY, OHIO

SAM QUEER : JUDGES: : Relator : : Hon., Patricia A. Delaney P.J. : Hon., W. Scott Gwin J -vs- : Hon., William B. Hoffman J. : JUDGE JAMES D. HENSON : CASE NO. 13CA67 : Respondent : : OPINION

CHARACTER OF PROCEEDING: Petition for Writ of Procedendo

JUDGMENT: DISMISSED

DATE OF JUDGMENT ENTRY: September 30, 2013

APPEARANCES:

For Relator – Pro se: For Respondent:

Sam Queer #632-894 Jill M. Cochran P.O. Box 57 Asst. Richland County Prosecutor Marion, OH 43301 38 South Park Street, 2nd Floor Mansfield, OH 44902 Richland County, Case No. 13CA67 1

Delaney, J.,

{¶1} Petitioner, Sam Queer, has filed a “Complaint/Petition for Writ of

Procedendo” asking this Court to issue an order requiring Respondent, Judge James

Henson, to rule on a “Motion to Dismiss Counsel” filed on April 25, 2013.

{¶2} The Supreme Court has explained, “For a writ of procedendo, [a

petitioner] must show 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 the law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common

Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d 899 (1995). A writ of procedendo is proper

when a court has refused to enter judgment or has unnecessarily delayed proceeding to

judgment. State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180,

184, 652 N.E.2d 742 (1995).” State ex rel. Culgan v. Collier (2013), 135 Ohio St.3d

436, 437, 988 N.E.2d 564, 565.

{¶3} The Culgan court went on to advise, “Sup.R. 40(A)(3) imposes on trial

courts a duty to rule on motions within 120 days. Although the Rules of

Superintendence do not provide litigants with a right to enforce Sup.R. 40, the rule does

guide this court in determining whether a trial court has unduly delayed ruling on a

motion for purposes of ruling on a request for an extraordinary writ. A court that takes

more than 120 days to rule on a motion risks unduly delaying the case and, as here,

risks our issuing writs of mandamus and/or procedendo to compel a ruling.” Id. at 438. Richland County, Case No. 13CA67 2

{¶4} In this case, the motion was not pending for more than 120 days prior to

the filing of this complaint. For this reason, we find procedendo is not appropriate under

the facts presented here.

{¶5} Further, the Supreme Court has held that a judge’s performance of the

requested act makes the complaint in procedendo moot. State ex rel. Hazel v. Bender,

129 Ohio St.3d 496, 496, 954 N.E.2d 114, 115 (Ohio,2011).

{¶6} Subsequent to the filing of the instant complaint, Respondent ruled on the

motion to dismiss counsel and has appointed new counsel for Relator. For this reason,

we dismiss the instant petition as moot.

{¶7} Costs waived.

By: Delaney, P.J. Gwin, J. and Hoffman, J. concur

______________________________ HON. PATRICIA A. DELANEY

______________________________ HON. W. SCOTT GWIN

______________________________ HON. WILLIAM B. HOFFMAN IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT RICHLAND COUNTY, OHIO

SAM QUEER : : CASE NO. 13CA67 Relator : : -vs- : JUDGMENT ENTRY : JUDGE JAMES D. HENSON : : Respondent :

For the reasons stated in our accompanying Memorandum-Opinion,

Petitioner’s Complaint for Writ of Procedendo is hereby dismissed. Costs

waived.

____________________________ HON. PATRICIA. DELANEY

____________________________ HON. W. SCOTT GWIN

____________________________ HON. WILLIAM B. HOFFMAN