State ex rel. Dabernig v. Earley

2025 Ohio 3288

• Court: Ohio Court of Appeals
• Decided: September 5, 2025
• Docket: 115319
• Status: Published

Opinion

[Cite as State ex rel. Dabernig v. Earley, 2025-Ohio-3288.]

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