[Cite as State ex rel. McGrath v. Calabrese, 2011-Ohio-4833.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97082
STATE OF OHIO, EX REL. JOSEPH MCGRATH, RELATOR
vs.
JUDGE DEENA CALABRESE RESPONDENT
JUDGMENT: WRIT DENIED
Writ of Mandamus and of Procedendo Motion No. 447156 and 446984 Order No. 447802
RELEASED DATE: September 19, 2011 FOR RELATOR
Joseph McGrath Inmate No.570-434 Lake Erie Correctional Inst. 501 Thompson Road Conneaut, OH 44030
ATTORNEY FOR RESPONDENT
William D. Mason Cuyahoga County Prosecutor
By: James E. Moss Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} On July 25, 2011, the relator, Joseph McGrath, commenced this mandamus
and/or procedendo action against the respondent, Judge Deena Calabrese, to compel the judge
to resolve motions for jail time credit and petitions for postconviction relief which he filed in
the underlying cases, State of Ohio v. Joseph McGrath, Cuyahoga County Common Pleas Court
Case Nos. Cr-516312 and CR-524159. Additionally, he also seeks to compel the judge to 1
McGrath filed motions for jail time credit in the underlying cases on July 1, 2009, asking for 1
260 days of credit, and December 1, 2010, asking for only 258 days. He filed the postconviction relief petitions on February 23, 2011. serve any judgment entries upon him. McGrath also desires damages against the judge for his
unnecessary litigation expenses caused by the judge’s delay in resolving the pending matters.
{¶ 2} On August 17, 2011, the judge, through the Cuyahoga County Prosecutor,
moved for summary judgment on the grounds of mootness. Attached to the dispositive
motion were certified copies of journal entries in the underlying cases, file-stamped on
August 16, 2011, and signed by the respondent judge. The first entry granted, in part,
McGrath’s December 1, 2010 motion for jail time credit by granting him 247 days of jail time
credit. The second entry provided: “Defendant’s petitions for postconviction relief and/or to
vacate void judgment filed on February 23, 2011 in the above cases are untimely under R.C.
2953.21(A)(2). None of the exceptions under R.C. 2953.23 apply. Therefore, this court
lacks jurisdiction to consider defendant’s petitions for postconviction relief and/or to vacate
void judgment filed on February 23, 2011. State v. Collier, Cuyahoga App. No. 96075,
2011-Ohio-3988 ¶¶ 11-12.” (Italics added.)
{¶ 3} On August 25, 2011, McGrath filed a brief in opposition to the judge’s summary
judgment motion and his own motion for summary judgment. McGrath argues that the judge
has never served him with copies of the August 16, 2011 journal entries and that he has
suffered damages as a result of the judge’s failure to render any decisions. For the following
reasons, this court grants the judge’s motion for summary judgment, denies McGrath’s
summary judgment motion, and denies the application for a writ of mandamus and/or procedendo.
{¶ 4} The writ of procedendo is merely an order from a court of superior jurisdiction
to one of inferior jurisdiction to proceed to judgment. Yee v. Erie County Sheriff’s
Department (1990), 51 Ohio St.3d 43, 553 N.E.2d 1354. Procedendo is appropriate when a
court has either refused to render a judgment or has unnecessarily delayed proceeding to
judgment. State ex rel. Watkins v. Eighth District Court of Appeals, 82 Ohio St.3d 532,
1998-Ohio-190, 696 N.E.2d 1079. However, the writ will not issue to control what the
judgment should be, nor will it issue for the purpose of controlling or interfering with ordinary
court procedure. Thus, procedendo will not lie to control the exercise of judicial discretion.
Moreover, it will not issue when there is an adequate remedy at law. State ex rel. Utley v.
Abruzzo (1985), 17 Ohio St.3d 202, 478 N.E.2d 789 and State ex rel. Hansen v. Reed (1992),
63 Ohio St.3d 597, 589 N.E.2d 1324.
{¶ 5} The requisites for mandamus are also well established: (1) the relator must
have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to
perform the requested relief and (3) there must be no adequate remedy at law, such as appeal.
Additionally, although mandamus may be used to compel a court to exercise judgment or to
discharge a function, it may not control judicial discretion, even if that discretion is grossly
abused. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914; State ex rel.
Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and State ex rel. Pressley v. Industrial
Commission of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631. Thus, mandamus does not
lie to correct errors and procedural irregularities in the course of a case. State ex rel.
Jerninghan v. Gaughan (Sept. 26, 1994), Cuyahoga App. No. 67787. Moreover, mandamus is
an extraordinary remedy which is to be exercised with caution and only when the right is clear.
It should not issue in doubtful cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d
165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St.
581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 Ohio
App.3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32
Ohio Law Abs. 308.
{¶ 6} Although mandamus should be used with caution, the court has discretion in
issuing it. In State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio St.2d
141, 28 N.E.2d 631, paragraph seven of the syllabus, the Supreme Court of Ohio ruled that “in
considering the allowance or denial of the writ of mandamus on the merits, [the court] will
exercise sound, legal and judicial discretion based upon all the facts and circumstances in the
individual case and the justice to be done.” The court elaborated that in exercising that
discretion the court should consider “the exigency which calls for the exercise of such
discretion, the nature and extent of the wrong or injury which would follow a refusal of the
writ, and other facts which have a bearing on the particular case ***. Among the facts and circumstances which the court will consider are the applicant’s rights, the interests of third
persons, the importance or unimportance of the case, the applicant’s conduct, the equity and
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[Cite as State ex rel. McGrath v. Calabrese, 2011-Ohio-4833.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97082
STATE OF OHIO, EX REL. JOSEPH MCGRATH, RELATOR
vs.
JUDGE DEENA CALABRESE RESPONDENT
JUDGMENT: WRIT DENIED
Writ of Mandamus and of Procedendo Motion No. 447156 and 446984 Order No. 447802
RELEASED DATE: September 19, 2011 FOR RELATOR
Joseph McGrath Inmate No.570-434 Lake Erie Correctional Inst. 501 Thompson Road Conneaut, OH 44030
ATTORNEY FOR RESPONDENT
William D. Mason Cuyahoga County Prosecutor
By: James E. Moss Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} On July 25, 2011, the relator, Joseph McGrath, commenced this mandamus
and/or procedendo action against the respondent, Judge Deena Calabrese, to compel the judge
to resolve motions for jail time credit and petitions for postconviction relief which he filed in
the underlying cases, State of Ohio v. Joseph McGrath, Cuyahoga County Common Pleas Court
Case Nos. Cr-516312 and CR-524159. Additionally, he also seeks to compel the judge to 1
McGrath filed motions for jail time credit in the underlying cases on July 1, 2009, asking for 1
260 days of credit, and December 1, 2010, asking for only 258 days. He filed the postconviction relief petitions on February 23, 2011. serve any judgment entries upon him. McGrath also desires damages against the judge for his
unnecessary litigation expenses caused by the judge’s delay in resolving the pending matters.
{¶ 2} On August 17, 2011, the judge, through the Cuyahoga County Prosecutor,
moved for summary judgment on the grounds of mootness. Attached to the dispositive
motion were certified copies of journal entries in the underlying cases, file-stamped on
August 16, 2011, and signed by the respondent judge. The first entry granted, in part,
McGrath’s December 1, 2010 motion for jail time credit by granting him 247 days of jail time
credit. The second entry provided: “Defendant’s petitions for postconviction relief and/or to
vacate void judgment filed on February 23, 2011 in the above cases are untimely under R.C.
2953.21(A)(2). None of the exceptions under R.C. 2953.23 apply. Therefore, this court
lacks jurisdiction to consider defendant’s petitions for postconviction relief and/or to vacate
void judgment filed on February 23, 2011. State v. Collier, Cuyahoga App. No. 96075,
2011-Ohio-3988 ¶¶ 11-12.” (Italics added.)
{¶ 3} On August 25, 2011, McGrath filed a brief in opposition to the judge’s summary
judgment motion and his own motion for summary judgment. McGrath argues that the judge
has never served him with copies of the August 16, 2011 journal entries and that he has
suffered damages as a result of the judge’s failure to render any decisions. For the following
reasons, this court grants the judge’s motion for summary judgment, denies McGrath’s
summary judgment motion, and denies the application for a writ of mandamus and/or procedendo.
{¶ 4} The writ of procedendo is merely an order from a court of superior jurisdiction
to one of inferior jurisdiction to proceed to judgment. Yee v. Erie County Sheriff’s
Department (1990), 51 Ohio St.3d 43, 553 N.E.2d 1354. Procedendo is appropriate when a
court has either refused to render a judgment or has unnecessarily delayed proceeding to
judgment. State ex rel. Watkins v. Eighth District Court of Appeals, 82 Ohio St.3d 532,
1998-Ohio-190, 696 N.E.2d 1079. However, the writ will not issue to control what the
judgment should be, nor will it issue for the purpose of controlling or interfering with ordinary
court procedure. Thus, procedendo will not lie to control the exercise of judicial discretion.
Moreover, it will not issue when there is an adequate remedy at law. State ex rel. Utley v.
Abruzzo (1985), 17 Ohio St.3d 202, 478 N.E.2d 789 and State ex rel. Hansen v. Reed (1992),
63 Ohio St.3d 597, 589 N.E.2d 1324.
{¶ 5} The requisites for mandamus are also well established: (1) the relator must
have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to
perform the requested relief and (3) there must be no adequate remedy at law, such as appeal.
Additionally, although mandamus may be used to compel a court to exercise judgment or to
discharge a function, it may not control judicial discretion, even if that discretion is grossly
abused. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914; State ex rel.
Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and State ex rel. Pressley v. Industrial
Commission of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631. Thus, mandamus does not
lie to correct errors and procedural irregularities in the course of a case. State ex rel.
Jerninghan v. Gaughan (Sept. 26, 1994), Cuyahoga App. No. 67787. Moreover, mandamus is
an extraordinary remedy which is to be exercised with caution and only when the right is clear.
It should not issue in doubtful cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d
165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St.
581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 Ohio
App.3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32
Ohio Law Abs. 308.
{¶ 6} Although mandamus should be used with caution, the court has discretion in
issuing it. In State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio St.2d
141, 28 N.E.2d 631, paragraph seven of the syllabus, the Supreme Court of Ohio ruled that “in
considering the allowance or denial of the writ of mandamus on the merits, [the court] will
exercise sound, legal and judicial discretion based upon all the facts and circumstances in the
individual case and the justice to be done.” The court elaborated that in exercising that
discretion the court should consider “the exigency which calls for the exercise of such
discretion, the nature and extent of the wrong or injury which would follow a refusal of the
writ, and other facts which have a bearing on the particular case ***. Among the facts and circumstances which the court will consider are the applicant’s rights, the interests of third
persons, the importance or unimportance of the case, the applicant’s conduct, the equity and
justice of the relator’s case, public policy and the public’s interest, whether the performance of
the act by the respondent would give the relator any effective relief, and whether such act
would be impossible, illegal, or useless.” 11 Ohio St.2d at 161-162.
{¶ 7} This court rules that the respondent judge has fulfilled her duty to rule on the
outstanding matters, and thus, the first claim is moot. Assuming arguendo that McGrath did
not withdraw his first motion for jail time credit by filing his second motion and asking for less
credit, by granting 247 days of jail time credit the respondent fulfilled her duty and specified
the days of jail time credit. “Neither procedendo nor mandamus will compel the performance
of a duty that has already been performed.” State ex rel. Howard v. Doneghy, 102 Ohio St.3d
355, 2004-Ohio-3207, 810 N.E.2d 958 ¶2; State ex rel. Forsyth v. Brigner (1999), 86 Ohio
St.3d 299, 714 N.E.2d 922; and State ex rel. Fontanella v. Kontos, 117 Ohio St.3d 514,
2008-Ohio-1431, 885 N.E.2d 220. Similarly, the judge’s ruling resolved McGrath’s
postconviction relief petition. State ex rel. Carrion v. Harris (1988), 40 Ohio St.3d 19, 530
N.E.2d 1330. Moreover, in his brief in opposition McGrath does not question that the rulings
resolved the outstanding matters.
{¶ 8} This court also declines to issue either the writ of mandamus or the writ of
procedendo to compel service, even though McGrath complains that the respondent judge has not served him with copies of these orders and generally has refused to serve him. In the
present case the service of the motion for summary judgment has provided McGrath with the
subject orders. Furthermore, this court notes that McGrath has prudently used his knowledge
of the orders to appeal both of them. State of Ohio v. Joseph McGrath, Cuyahoga App. No.
97207. Therefore, this court rules that ordering service would be a vain act, with no benefit to
McGrath. State ex rel. Cotton v. Ghee, 84 Ohio St.3d 54, 1998-Ohio-679, 701 N.E.2d 989
and State ex rel. Thomas v. Ghee, 81 Ohio St.3d 191, 1998-Ohio-461, 690 N.E.2d 6; Cf.
Kontos. Moreover, the proper remedy for failure to serve is a Civ.R. 60(B)(5) motion to
vacate and reissue, rather than an extraordinary writ. State ex rel. Smith v. Fuerst (Feb. 10,
2000), Cuyahoga App. No. 77325, affirmed 89 Ohio St.3d 456, 200-Ohio-218, 732 N.E.2d 983.
To the extent that McGrath seeks mandamus to compel the respondent judge to serve him
with all orders in the future, the court declines to issue the writ. Mandamus does not lie to
control or regulate a general course of conduct or to compel the observance of the law, and it
does not lie in anticipation of an omission of duty, regardless how strong the presumption may
be that the person will refuse to perform their duty when the proper time arrives. State ex rel.
Home Care Pharmacy, Inc. v. Creasy (1981), 67 Ohio St.2d 342, 423 N.E.2d 482 and Mihocka
v. Ziegler (1971), Ohio Misc. 105, 274 N.E.2d 583.
{¶ 9} Finally, there is no claim for money damages against a judge for litigation
expenses caused by the judge’s delay in ruling on a matter. Borkowski v. Abood, 117 Ohio St.3d 347, 2008-Ohio-857, 884 N.E.2d 7.
{¶ 10} Accordingly, this court grants the respondent judge’s motion for summary
judgment, denies McGrath’s motion for summary judgment, and denies the application for a
writ of mandamus and/or procedendo. Respondent to pay costs. This court directs the Clerk
of the Eighth District Court of Appeals to serve upon the parties notice of this judgment and its
date of entry upon the journal. Civ.R. 58
Writ denied.
KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, P.J., and LARRY A. JONES, J.