State ex rel. Lowe v. Berens

2019 Ohio 4036

Opinion

[Cite as State ex rel. Lowe v. Berens, 2019-Ohio-4036.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

DENNIS RAY LOWE JUDGES: Hon. W. Scott Gwin, P.J Relator Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 19-CA-30 JUDGE RICHARD E. BERENS

Respondent O P I N IO N

CHARACTER OF PROCEEDINGS: Writ of Procedendo

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: September 30, 2019

APPEARANCES:

For Relator For Respondent

DENNIS RAY LOWE JOSHUA S. HORACEK S.O.C.F. #441-903 Assistant Prosecuting Attorney P.O. Box 45699 Fairfield County Prosecutor’s Office Lucasville, Ohio 45699 239 West Main Street, Suite #101 Lancaster, Ohio 43130 Fairfield County, Case No. 19-CA-30 2

Hoffman, J. {¶1} On July 3, 2019, Dennis Lowe filed a petition for writ of procedendo to

compel Judge Richard Berens to rule upon two motions he had pending before the trial

court in his underlying criminal case: Motion for Relief from Judgment and Motion to

Dismiss Case. The Fairfield County Prosecutor, on behalf of Judge Berens, has moved

to dismiss the writ. This Court grants the prosecutor’s motion.

{¶2} On July 8, 2019, Judge Berens issued a Judgment Entry overruling both of

Mr. Lowe’s motions. Because Judge Berens addressed Mr. Lowe’s pending motions that

are the subject of this writ, the writ is moot. “Neither mandamus nor procedendo will

compel the performance of a duty that has already been performed.” State ex rel. Nelson

v. Russo, 89 Ohio St.3d 227, 228, 729 N.E.2d 1181 (2000), citing State ex rel. Grove v.

Nadel, 84 Ohio St.3d 252, 253, 703 N.E.2d 304 (1998).

{¶3} Further, in Grove, the Ohio Supreme Court explained the court of appeals

appropriately took judicial notice Grove’s procedendo action was moot based on the

journalized entry submitted by Judge Nadel in his second motion to dismiss. Similarly,

here, the Fairfield County Prosecutor attached to his Motion to Dismiss a copy of the

Judgment Entry issued by Judge Berens that overruled Mr. Lowe’s two pending motions.

We may properly take judicial notice of this Judgment Entry which renders Mr. Lowe’s

writ of procedendo moot. Because Mr. Lowe’s writ of procedendo is moot we grant the

prosecutor’s motion to dismiss. Fairfield County, Case No. 19-CA-30 3

{¶4} 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).

By: Hoffman, J. Gwin, P.J. and Baldwin, J. concur