State Ex Rel. Anello v. Weigand, 2008ca00205 (11-24-2008)

Ohio Court of Appeals

State Ex Rel. Anello v. Weigand, 2008ca00205 (11-24-2008)

2008 Ohio 6118

CourtOhio Court of Appeals

DecidedNovember 24, 2008

DocketNo. 2008CA00205.

StatusPublished

This text of 2008 Ohio 6118 (State Ex Rel. Anello v. Weigand, 2008ca00205 (11-24-2008)) 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

State Ex Rel. Anello v. Weigand, 2008ca00205 (11-24-2008), 2008 Ohio 6118 (Ohio Ct. App. 2008).

Pincite

Opinion

OPINION *Page 2 {¶ 1} Relator Belinda Rife Anello has filed a Petition for Writ of Mandamus requesting the issuance of a writ which would require the trial court to hold a hearing and issue findings of fact and conclusions of law relative to Relator's Motion for Relief from Judgment.

{¶ 2} To be entitled to the issuance of a writ of mandamus, relator must demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on the respondent's part to perform the act; and, (3) that there exists no plain and adequate remedy in the ordinary course of law. State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 26-27,661 N.E.2d 180; State ex rel. Harris v. Rhodes (1978), 5 Ohio St.2d 41,324 N.E.2d 641, citing State ex rel. National City Bank v. Bd. ofEducation (1977), 520 Ohio St.2d 81, 369 N.E.2d 1200.

{¶ 3} Relator filed a motion with the trial court captioned "Motion for Relief from Judgment" premised upon on Civ. R. 60(B).

{¶ 4} "A request for relief pursuant to Civil Rule 60(B) is really a motion for post-conviction relief regardless of its caption." State v.Brenton, 3rd Dist. No. 11-06-06, 2007-Ohio-901, ¶ 15. In Relator's previous case, State of Ohio ex rel. Belinda Rife Anello v. Judge MaryA. Falvey, Case Number 2008CA0059, we noted "[M]unicipal courts lack jurisdiction to hear motions for post-conviction relief . . ."

{¶ 5} Because Relator has filed what is actually a motion for post-conviction relief, the trial court lacks jurisdiction to consider the motion. Consequently, there is no clear legal duty on the part of Respondent to perform the requested act. *Page 3

{¶ 6} Relator has failed to demonstrate the elements necessary to warrant the issuance of the writ of mandamus.

{¶ 7} WRIT DENIED.

{¶ 8} COSTS TO RELATOR.

Wise, P.J. Edwards, J. and Delaney, J. concur.

JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, Relator's Writ of Mandamus is hereby denied. Costs taxed to Relator. *Page 1

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION *Page 2 {¶ 1} Relator Belinda Rife Anello has filed a Petition for Writ of Mandamus requesting the issuance of a writ which would require the trial court to hold a hearing and issue findings of fact and conclusions of law relative to Relator's Motion for Relief from Judgment.

{¶ 2} To be entitled to the issuance of a writ of mandamus, relator must demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on the respondent's part to perform the act; and, (3) that there exists no plain and adequate remedy in the ordinary course of law. State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 26-27,661 N.E.2d 180; State ex rel. Harris v. Rhodes (1978), 5 Ohio St.2d 41,324 N.E.2d 641, citing State ex rel. National City Bank v. Bd. ofEducation (1977), 520 Ohio St.2d 81, 369 N.E.2d 1200.

{¶ 3} Relator filed a motion with the trial court captioned "Motion for Relief from Judgment" premised upon on Civ. R. 60(B).

{¶ 4} "A request for relief pursuant to Civil Rule 60(B) is really a motion for post-conviction relief regardless of its caption." State v.Brenton, 3rd Dist. No. 11-06-06, 2007-Ohio-901, ¶ 15. In Relator's previous case, State of Ohio ex rel. Belinda Rife Anello v. Judge MaryA. Falvey, Case Number 2008CA0059, we noted "[M]unicipal courts lack jurisdiction to hear motions for post-conviction relief . . ."

{¶ 5} Because Relator has filed what is actually a motion for post-conviction relief, the trial court lacks jurisdiction to consider the motion. Consequently, there is no clear legal duty on the part of Respondent to perform the requested act. *Page 3

{¶ 6} Relator has failed to demonstrate the elements necessary to warrant the issuance of the writ of mandamus.

{¶ 7} WRIT DENIED.

{¶ 8} COSTS TO RELATOR.

Wise, P.J. Edwards, J. and Delaney, J. concur.

JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, Relator's Writ of Mandamus is hereby denied. Costs taxed to Relator. *Page 1

Cite This Page — Counsel Stack

Bluebook (online)

2008 Ohio 6118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-anello-v-weigand-2008ca00205-11-24-2008-ohioctapp-2008.

Opinion

Related

Cite This Page — Counsel Stack