Small v. Duhart

2020 Ohio 1053

• Court: Ohio Court of Appeals
• Decided: March 19, 2020
• Docket: L-20-1037
• Status: Published

Opinion

[Cite as Small v. Duhart, 2020-Ohio-1053.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Gregory Small Court of Appeals No. L-20-1037

Relator

v.

Judge Myron C. Duhart DECISION AND JUDGMENT

Respondent Decided: March 19, 2020

*****

Gregory Small, pro se.

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for respondent.

MAYLE, J.

{¶ 1} In this original action, filed on February 10, 2020, relator Gregory Small

petitions this court for a writ of mandamus ordering the respondent, Judge Myron C.

Duhart of the Lucas County Court of Common Pleas, to provide him with a final appealable order in his criminal case. (Lucas C.P. No. CR-89-7030). On February 12,

2020, Small filed a nearly-identical petition, seeking the same relief. (6th Dist. Lucas

No. L-20-1039).

{¶ 2} In his petition, Small claims to have requested “on multiple occasions” that

the trial court provide him with a “certified copy of the * * * judgment of conviction and

sentence” in his criminal case. In response, Small alleges that the court provided him

with a “June 27, 1990 putative judgment entry” which he claims is not a final, appealable

order. Without such an order, Small complains that he has been prevented from

appealing his conviction and sentence. Small incorrectly asserts that the “putative

judgment entry” is attached to his petition. Having reviewed the electronic copy of the

petition that is posted on the clerk’s website, we find that the petition lacks any

attachment(s). Therefore, this court is unable to address the substance of Small’s claim.

{¶ 3} Small also failed to file the petition “in the name of the state on the relation

of the person applying,” as required by R.C. 2731.04. See, e.g., Rust v. Lucas Cty. Bd. of

Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766. (“Rust did not bring

this action in the name of the state. If * * * a respondent in a mandamus action raises this

R.C. 2731.04 defect and relators fail to seek leave to amend their complaint to comply

with R.C. 2731.04, the mandamus action must be dismissed.”). Therefore, Small’s

petition is improperly before this court and must be dismissed. Accord State ex rel. Jones

v. Cook, 6th Dist. Lucas No. L-13-1011, 2013-Ohio-975.

2. {¶ 4} Accordingly, the petition is hereby ordered dismissed at relator’s costs. It is

so ordered.

{¶ 5} To the Clerk: Manner of Service.

{¶ 6} Serve upon all parties in a manner prescribed by Civ.R. 5(B) notice of the

judgment and its date of entry upon the journal.

Writ denied.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

3.