State ex rel. Price v. Berger

2023 Ohio 4661

• Court: Ohio Court of Appeals
• Decided: December 20, 2023
• Docket: 113175
• Status: Published

Opinion

[Cite as State ex rel. Price v. Berger, 2023-Ohio-4661.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE EX REL., KRISTON PRICE, :

Relator, : No. 113175 v. :

JUDGE ROBERT BERGER, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: COMPLAINT DISMISSED DATED: December 20, 2023

Writ of Procedendo Motion No. 569675 Order No. 570025

Appearances:

Kriston Price, pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Matthew T. Fitzsimmons, IV, Assistant Prosecuting Attorney, for respondent.

ANITA LASTER MAYS, A.J.:

Kriston Price, the relator, has filed a complaint for a writ of

procedendo. Price seeks a writ of procedendo to compel Judge Robert Berger, the

respondent, to render rulings with regard to motions that are pending in Cuyahoga County Juvenile Court J.C. No. FA-21-100501. Price argues that Judge Berger has

failed to rule on a motion for shared parenting, motion for visitation, and a motion

to modify child support. Judge Berger has filed a motion to dismiss arguing that

Price’s request for procedendo is moot. This court grants Judge Berger’s motion to

dismiss.

Standards for Procedendo

In order for this court to grant a writ of procedendo, Price must

demonstrate a clear legal right to require a court to proceed, a clear legal duty on the

part of the court to proceed, and a lack of an adequate remedy in the ordinary course

of the law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio

St.3d 461, 650 N.E.2d 899 (1995); State ex rel. Knox v. Russo, 8th Dist. Cuyahoga

Nos. 102589 and 103003, 2015-Ohio-3773. A writ of procedendo is appropriate

when a court has refused to enter judgment or has unnecessarily delayed proceeding

to judgment. State ex rel. Brown v. Logan, 138 Ohio St.3d 286, 2014-Ohio-769, 6

N.E.3d 42; State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d

180, 652 N.E.2d 742 (1995).

Legal Analysis

Attached to Judge Berger’s motion to dismiss is a copy of a judgment

entry, journalized November 1, 2023, that demonstrates Price was granted

temporary visitation with his minor child via Zoom. The request for a writ of

procedendo, in order to require Judge Berger to render a ruling with regard to the

motion for visitation, is moot. State ex rel. Pettway v. Cuyahoga Cty. Court of Common Pleas, 8th Dist. Cuyahoga No. 98699, 2012-Ohio-5423. The judgment

entry also provided that the motions to modify child support and shared parenting

would be heard at a pretrial hearing scheduled for November 17, 2023. The Ohio

Supreme Court has held that setting a matter for hearing renders an action for a writ

of procedendo moot. State ex rel. Rohrer v. Holzapfel, 149 Ohio St.3d 132, 2016-

Ohio-7827, 73 N.E.3d 482; State ex rel. S.Y.C. v. Floyd, 8th Dist. Cuyahoga No.

106955, 2018-Ohio-2743.

Conclusion

Accordingly, we grant Judge Berger’s motion to dismiss. Costs to Price;

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.

ANITA LASTER MAYS, ADMINISTRATIVE JUDGE

EMANUELLA D. GROVES, J., and MARY J. BOYLE, J., CONCUR