State ex rel. Lewis v. Summit Cty. Court of Common Pleas

2019 Ohio 3874

• Court: Ohio Court of Appeals
• Decided: September 25, 2019
• Docket: 29390
• Status: Published

Opinion

[Cite as State ex rel. Lewis v. Summit Cty. Court of Common Pleas, 2019-Ohio-3874.]

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

STATE EX REL. JOHNNL LEWIS C.A. No. 29390

Relator

v.

SUMMIT COUNTY COURT OF COMMON PLEAS ORIGINAL ACTION IN PROCEDENDO Respondent

Dated: September 25, 2019

PER CURIAM.

{¶1} Relator, Johnnl Lewis, has petitioned this Court for a writ of procedendo to

compel Respondent, Summit County Court of Common Pleas to rule on a motion to

vacate he filed. The court of common pleas filed an answer and motion for summary

judgment, both of which demonstrated that the court had ruled on the motion. Mr. Lewis

did not respond. The answer, motion, and trial court docket demonstrate that the motion

has been ruled on. Therefore, Mr. Lewis’s claim is moot, and this Court dismisses his

complaint.

{¶2} To be entitled to a writ of procedendo, Mr. Lewis must establish a clear

legal right to require respondent to proceed, a clear legal duty on the part of respondent

to proceed, and a lack of an adequate remedy in the ordinary course of law. State ex rel. C.A. No. 29390 Page 2 of 3

Miley v. Parrott, Judge, 77 Ohio St.3d 64, 65 (1996). 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.

{¶3} Mr. Lewis sought a writ of procedendo to order the court to rule on his

motion. 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 the answer and motion for summary judgment, along with a review of the trial court

docket, the trial court has ruled on Mr. Lewis’s motion. Accordingly, this matter is moot.

{¶4} Because Mr. Lewis’s claim is moot, his complaint is dismissed. Costs are

taxed to Mr. Lewis. 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).

THOMAS A. TEODOSIO FOR THE COURT

CARR, J. SCHAFER, J. CONCUR. C.A. No. 29390 Page 3 of 3

APPEARANCES:

JOHNNL LEWIS, Pro se, Relator.

SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS, Assistant Prosecuting Attorney, for Respondent.