State ex rel. Dabernig v. Earley

2025 Ohio 3288

Opinion

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO EX REL. : JAMI DABERNIG, :

Relator,

: No. 115319

v.

JUDGE MICHELLE D. EARLEY, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: COMPLAINT DISMISSED DATED: September 5, 2025

Writ of Procedendo and Mandamus Motion No. 587435

Order No. 587472

Appearances:

Michela Huth, for relator.

Mark D. Griffin, Director of Law, City of Cleveland, and Gilbert Blomgren and J.R. Russell, Assistant Directors of Law, for respondent.

SEAN C. GALLAGHER, J.:

Jami Dabernig, the relator, has filed a complaint for a writ of procedendo and mandamus. Dabernig seeks an order from this court that compels

Judge Michelle D. Earley, the respondent, to comply with App.R. 9(C)(1) and settle a proposed statement of proceedings or evidence filed in Cleveland v. Dabernig, Cleveland M.C. No. 2023-CRB-006494. Judge Earley has filed a motion to dismiss that is granted.

Attached to the motion to dismiss is a copy of a judgment entry, journalized August 22, 2025, which demonstrates that Judge Earley has addressed Dabernig’s proposed App.R. 9(C) statement and issued a judgment with regard to the proposed App.R. 9(C) statement. Judge Earley has performed her duty under App.R. 9(C) to act on the statement of evidence by refusing to settle or approve it based upon the fact that no trial was scheduled or had on January 21, 2025. State ex rel. Johnson v. Hunter, 64 Ohio St.3d 243 (1992); Aurora v. Bellinger, 2008- Ohio-6772 (11th Dist.). See also State ex rel. Hull v. Gaughan, 39 Ohio St.3d 145 (1988); State ex rel. Fant v. Trumbo, 22 Ohio St.3d 207 (1986).

Relief is unwarranted because the request for a writ of procedendo and mandamus is moot. Procedendo or mandamus will not compel the performance of a duty that has already been performed. State ex rel. Ames v. Pokorny, 2021-Ohio-2070; Thompson v. Donnelly, 2018-Ohio-4073; State ex rel. S.Y.C. v. Floyd, 2020-Ohio-5189 (8th Dist.). See also State ex rel. Williams v. Croce, 2018-Ohio-2703; State ex rel. Fontanella v. Kontos, 2008-Ohio-1431.

Accordingly, we grant Judge Earley’s motion to dismiss. Costs waived. The court directs the clerk of courts to serve all parties with notice of this judgment and the date of entry upon the journal as required by Civ.R. 58(B).

Complaint dismissed.

______________________

SEAN C. GALLAGHER, JUDGE

LISA B. FORBES, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR