Serra v. Betleski

2022 Ohio 2819

• Court: Ohio Court of Appeals
• Decided: August 15, 2022
• Docket: 22CA011844
• Status: Published

Opinion

[Cite as Serra v. Betleski, 2022-Ohio-2819.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

WAYNE M. SERRA C.A. No. 22CA011844

Relator

v.

MARK A. BETLESKI, JUDGE COURT OF COMMON PLEAS FOR LORAIN ORIGINAL ACTION IN MANDAMUS COUNTY AND PROCEDENDO

Respondent

Dated: August 15, 2022

PER CURIAM.

{¶1} Petitioner, Wayne Serra, has petitioned this Court for writs of mandamus and

procedendo to compel Respondent, Judge Mark Betleski, to proceed to an immediate hearing on

his pending motion for temporary restraining order and to issue an order preventing a party in

the underlying case from doing anything to transfer or assign specific property until a final

decision is rendered in the underlying case. Mr. Serra further moved this Court for an order

enjoining the same party from transferring or assigning that property. Judge Betleski has moved

to dismiss this case as moot because he has now entered an order denying the motions in the

underlying case. For the following reasons, this Court grants the motion to dismiss.

Background

{¶2} According to the complaint, Mr. Serra filed a civil action in the Lorain County

Common Pleas Court in the fall of 2020. Through that action, Mr. Serra sought to enforce a C.A. No. 22CA011844 Page 2 of 5

settlement agreement that required one of the parties to assign intellectual property rights to him

in exchange for a release of claims by Mr. Serra.

{¶3} The case was stayed for about six months by the defendant’s bankruptcy filing.

In July 2021, after the bankruptcy case was dismissed, the proceedings resumed in the common

pleas court. The next month, another party filed suit against the same defendant in federal court;

Mr. Serra is not a party to that suit. That party claimed that it owned the intellectual property

rights that were the subject of Mr. Serra’s suit.

{¶4} At the end of September 2021, Judge Betleski’s court was made aware of the

federal case. Mr. Serra moved for a temporary restraining order to prevent the loss of intellectual

property rights. The defendant indicated that it intended to seek a stay of the case in Judge

Betleski’s court in favor of litigating the action in federal court.

{¶5} The following month, Mr. Serra filed another motion for temporary restraining

order. The purpose, according to Mr. Serra’s complaint, was to protect the status quo between

the litigants and preserve his ability to obtain relief. The briefing was completed in November

2021.

{¶6} According to the complaint, there have been several pretrial conferences since

briefing was completed. In January 2022, at another pretrial conference, the parties were told

that the court intended to issue a decision the following week. No ruling had issued by the time

Mr. Serra filed this action in March 2022.

{¶7} Judge Betleski has now moved to dismiss this case. He attached to his motion an

order that denied Mr. Serra’s motion for a temporary restraining order or a preliminary injunction. C.A. No. 22CA011844 Page 3 of 5

Injunctive Relief

{¶8} In both the introduction and conclusion of the complaint, Mr. Serra asked this

court to grant him injunctive relief. Specifically, he sought an order from this Court to enjoin the

defendant in the underlying case from transferring or otherwise encumbering the property that is

the subject of that action.

{¶9} The Ohio Constitution vests the courts of appeals with original jurisdiction over

five extraordinary writs: habeas corpus, mandamus, procedendo, prohibition, and quo warranto.

Ohio Constitution, Article IV, Section 3(B)(1). But the Ohio Constitution does not grant the

courts of appeals original jurisdiction to grant injunctive relief. See, e.g., State ex rel. Duncan v.

Am. Transm. Systems, Inc., Slip Opinion No. 2022-Ohio-323, ¶ 7. Because this Court does not

have jurisdiction to grant injunctive relief, Mr. Serra’s claim for it must fail.

Procedendo and Mandamus

{¶10} The writs of procedendo and mandamus generally serve different purposes.

However, in the context of ordering a court to proceed, the Supreme Court has treated them both

as available remedies. “Although mandamus will lie in cases of a court’s undue delay in entering

judgment, procedendo is more appropriate, since ‘[a]n inferior court’s refusal or failure to timely

dispose of a pending action is the ill a writ of procedendo is designed to remedy.’” State ex rel.

Dehler v. Sutula, 74 Ohio St.3d 33, 35 (1995), quoting State ex rel. Levin v. Sheffield Lake, 70

Ohio St.3d 104, 110 (1994). Because Mr. Serra requested both writs for the same purpose, we

will refer to the writ of procedendo as it is the more appropriate writ.

{¶11} To obtain a writ of procedendo, Mr. Serra must establish that he has a clear legal

right to require the judge to proceed, that the judge has a clear legal duty to proceed, and that

there is no adequate remedy available in the ordinary course of law. State ex rel. Ward v. Reed, C.A. No. 22CA011844 Page 4 of 5

141 Ohio St.3d 50, 2014-Ohio-4512, ¶ 9, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of

Common Pleas, 72 Ohio St.3d 461, 462 (1995). Procedendo is the appropriate remedy when a

court has refused to render a judgment or has unnecessarily delayed proceeding to judgment.

See, e.g., State ex rel. CNG Financial Corp. v. Nadel, 111 Ohio St.3d 149, 2006-Ohio-5344, ¶

20. It is well-settled that procedendo will not “compel the performance of a duty that has

already been performed.” State ex rel. Grove v. Nadel, 84 Ohio St.3d 252, 253, 1998-

Ohio-541.

{¶12} Mr. Serra sought a writ of procedendo to order Judge Betleski to rule on the

motions for temporary restraining order or preliminary injunction. This Court may

consider evidence outside the complaint to determine that an action is moot. State ex rel.

Nelson v. Russo, 89 Ohio St.3d 227, 228 (2000). According to Judge Betleski’s motion

to dismiss, and a review of the trial court docket, Judge Betleski has now ruled on the

motions that were the subject of this petition. Accordingly, this matter is moot.

{¶13} Because Mr. Serra’s claim is moot, this case is dismissed.

{¶14} No costs are taxed. The clerk of courts is hereby directed to serve upon all

parties not in default notice of this judgment and its date of entry upon the journal. See

Civ.R. 58(B).

JENNIFER L. HENSAL FOR THE COURT

CARR, J. SUTTON, J. CONCUR. C.A. No. 22CA011844 Page 5 of 5

APPEARANCES:

WAYNE M. SERRA, Pro se, Relator.

J.D. TOMLINSON, Prosecuting Attorney, and GREG PELTZ, Assistant Prosecuting Attorney, for Respondent.