State ex rel. Nelson v. Russo

Ohio Supreme Court

State ex rel. Nelson v. Russo

729 N.E.2d 1181, 89 Ohio St. 3d 227

CourtOhio Supreme Court

DecidedJune 28, 2000

DocketNo. 99-2133

StatusPublished

Cited by95 cases

This text of 729 N.E.2d 1181 (State ex rel. Nelson v. Russo) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

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

Pincite

Opinion

Per Curiam..

Nelson asserts that the court of appeals erred in denying the writ because it improperly sua sponte converted Judge’s Russo’s motion to dismiss to a motion for summary judgment without notifying him of the conversion and giving him an opportunity to respond. Under Civ.R. 12(B) and 56(C), a court must notify all parties at least fourteen days before the time fixed for hearing when it converts a motion to dismiss for failure to state a claim into a motion for summary judgment. Petrey v. Simon (1983), 4 Ohio St.3d 154, 4 OBR 396, 447 N.E.2d 1285, paragraphs one and two of the syllabus. Based on Petrey, the court of appeals erred in converting Judge Russo’s motion without notifying the parties.

Nevertheless, this error was harmless because the court of appeals could have taken judicial notice of the mootness of Nelson’s writ action without converting Judge Russo’s dismissal motion to a motion for summary judgment. State ex rel. Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 581, 669 N.E.2d 835, 837, citing State ex rel. Neff v. Corrigan (1996), 75 Ohio St.3d 12, 16, 661 N.E.2d 170, 174; see, also, State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 471, 692 N.E.2d 198, 202. In fact, “an event that causes a case to be moot may be proved by extrinsic evidence outside the record.” Pewitt v. Lorain Correctional Inst. (1992), 64 Ohio St.3d 470, 472, 597 N.E.2d 92, 94.

The entry and findings of fact and conclusions of law attached to Judge Russo’s dismissal motion established that Judge Russo had performed the requested act. Neither mandamus nor procedendo will compel the performance of a duty that has already been performed. State ex rel. Grove v. Nadel (1998), 84 Ohio St.3d 252, 253, 703 N.E.2d 304, 305.

Based on the foregoing, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam..

Nelson asserts that the court of appeals erred in denying the writ because it improperly sua sponte converted Judge’s Russo’s motion to dismiss to a motion for summary judgment without notifying him of the conversion and giving him an opportunity to respond. Under Civ.R. 12(B) and 56(C), a court must notify all parties at least fourteen days before the time fixed for hearing when it converts a motion to dismiss for failure to state a claim into a motion for summary judgment. Petrey v. Simon (1983), 4 Ohio St.3d 154, 4 OBR 396, 447 N.E.2d 1285, paragraphs one and two of the syllabus. Based on Petrey, the court of appeals erred in converting Judge Russo’s motion without notifying the parties.

Nevertheless, this error was harmless because the court of appeals could have taken judicial notice of the mootness of Nelson’s writ action without converting Judge Russo’s dismissal motion to a motion for summary judgment. State ex rel. Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 581, 669 N.E.2d 835, 837, citing State ex rel. Neff v. Corrigan (1996), 75 Ohio St.3d 12, 16, 661 N.E.2d 170, 174; see, also, State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 471, 692 N.E.2d 198, 202. In fact, “an event that causes a case to be moot may be proved by extrinsic evidence outside the record.” Pewitt v. Lorain Correctional Inst. (1992), 64 Ohio St.3d 470, 472, 597 N.E.2d 92, 94.

The entry and findings of fact and conclusions of law attached to Judge Russo’s dismissal motion established that Judge Russo had performed the requested act. Neither mandamus nor procedendo will compel the performance of a duty that has already been performed. State ex rel. Grove v. Nadel (1998), 84 Ohio St.3d 252, 253, 703 N.E.2d 304, 305.

Based on the foregoing, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

729 N.E.2d 1181, 89 Ohio St. 3d 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-nelson-v-russo-ohio-2000.

Opinion

Related

Cite This Page — Counsel Stack