Roberts v. Gallagher, 89686 (5-29-2007)

Ohio Court of Appeals

Roberts v. Gallagher, 89686 (5-29-2007)

2007 Ohio 2628

CourtOhio Court of Appeals

DecidedMay 29, 2007

DocketNo. 89686.

StatusPublished

This text of 2007 Ohio 2628 (Roberts v. Gallagher, 89686 (5-29-2007)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Roberts v. Gallagher, 89686 (5-29-2007), 2007 Ohio 2628 (Ohio Ct. App. 2007).

Pincite

Opinion

{¶ 1} On April 10, 2007, David W. Roberts commenced this procedendo action against Judge Eileen T. Gallagher (the judge) to compel her to issue findings of fact and conclusions of law pertaining to Roberts' motion to vacate conviction, which was filed on February 21, 2007, in the underlying matter of State v. Roberts, Cuyahoga County Court of Common Pleas, Case Nos. CR-480193 and CR-483914. On May 8, 2007, the judge, through the Cuyahoga County Prosecutor, filed her answer, and on May 8, 2007 and May 21, 2007, filed *Page 3 a motion for summary judgment. For the following reasons, we grant the motion for summary judgment filed on May 21, 2007.

{¶ 2} Initially we note that Roberts' application for a writ of procedendo should be denied because it is improperly captioned. The application for a writ "must be by petition, in the name of the state on the relation of the person applying." The failure to caption a writ action properly constitutes sufficient grounds for dismissing the petition. Allen v. Court of Common Pleas of Allen Cty. (1962),173 Ohio St. 226, 181 N.E.2d 270; Dunning v. Judge Cleary (Jan. 11, 2001), Cuyahoga App. No. 78763.

{¶ 3} Notwithstanding the above, attached to the judge's motion for summary judgment is a copy of the court's findings of facts and conclusions of law pertaining to the subject motion, which was journalized on May 16, 2007. Thus, Roberts' request for a writ of procedendo is moot. State ex rel. Gantt v. Coleman (1983),6 Ohio St.3d 5, 450 N.E.2d 1163; State ex rel. Jerningham v. Cuyahoga Cty. Court ofCommon Pleas (1996), 74 Ohio St.3d 278, 658 N.E.2d 723.

{¶ 4} Accordingly, we deny the application for a writ of procedendo. Roberts to bear costs. It is further ordered that the clerk shall serve upon all parties notice of this judgment and date of entry pursuant to Civ.R. 58(B).

Petition denied.

*Page 4

FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE

COLLEEN CONWAY COONEY, J., and KENNETH A. ROCCO, J. CONCUR

*Page 1

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{¶ 1} On April 10, 2007, David W. Roberts commenced this procedendo action against Judge Eileen T. Gallagher (the judge) to compel her to issue findings of fact and conclusions of law pertaining to Roberts' motion to vacate conviction, which was filed on February 21, 2007, in the underlying matter of State v. Roberts, Cuyahoga County Court of Common Pleas, Case Nos. CR-480193 and CR-483914. On May 8, 2007, the judge, through the Cuyahoga County Prosecutor, filed her answer, and on May 8, 2007 and May 21, 2007, filed *Page 3 a motion for summary judgment. For the following reasons, we grant the motion for summary judgment filed on May 21, 2007.

{¶ 2} Initially we note that Roberts' application for a writ of procedendo should be denied because it is improperly captioned. The application for a writ "must be by petition, in the name of the state on the relation of the person applying." The failure to caption a writ action properly constitutes sufficient grounds for dismissing the petition. Allen v. Court of Common Pleas of Allen Cty. (1962),173 Ohio St. 226, 181 N.E.2d 270; Dunning v. Judge Cleary (Jan. 11, 2001), Cuyahoga App. No. 78763.