State v. Hurst

2013 Ohio 193

• Court: Ohio Court of Appeals
• Decided: January 15, 2013
• Docket: 12-CA-63
• Status: Published

Opinion

[Cite as State v. Hurst, 2013-Ohio-193.]

IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT LICKING COUNTY, OHIO

STATE OF OHIO : JUDGES: : Respondent : Hon., Sheila G. Farmer P.J. : Hon., William B. Hoffman J. -vs- : Hon., John W. Wise J. : MARK E. HURST : CASE NO. 12-CA-63 : Relator : : OPINION

CHARACTER OF PROCEEDING: Petition for Writ of Mandamus

JUDGMENT: WRIT DISMISSED

DATE OF JUDGMENT ENTRY: January 15, 2013

APPEARANCES:

For Relator: For Respondent:

Mark E. Hurst, pro se. Kenneth W. Oswalt 19 East Street Amy Brown Thompson (#0070511) Newark, Ohio 43055 Assistant Prosecuting Attorney 20 South Second Street 4th Floor Newark, Ohio 43055 Licking County, Case No. 12-CA-63 1

Farmer, P.J.

{¶1} Petitioner Mark E. Hurst has filed a “Motion and/or Petition for a Writ of

Mandamus” requesting a writ be issued which would require the trial court to rule on a

motion that Petitioner filed in the trial court. Respondent, the State of Ohio, has filed a

Motion to Dismiss based upon several procedural defects in the petition.

{¶2} We find Petitioner has not properly brought this action. R.C. 2731.04

provides, “Application for the writ of mandamus must be by petition, in the name of the

state on the relation of the person applying, and verified by affidavit.”

{¶3} Failure to comply with these requirements is grounds for dismissal. Thorne

v. State, 8th Dist. No. 85024, 2004–Ohio–6288; Maloney v. Court of Common Pleas of

Allen County, 173 Ohio St. 226, 181 N.E.2d 270 (1962).

{¶4} Petitioner herein has not properly brought this cause as a petition in the

name of the state. See Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004–Ohio–5596,

817 N.E.2d 382; Perotti v. Mahoning County Clerk, 7th Dist. No. 05–MA–202, 2006–

Ohio–673. Selway v. Court of Common Pleas Stark County, 5th Dist. No.2007CA00213,

2007–Ohio–4566.

{¶5} Further, the Petition does not contain an affidavit of verity as required by

R.C. 2731.04.

{¶6} Even had Petitioner properly filed this cause, we would not find the

issuance of a writ of mandamus to be warranted. Licking County, Case No. 12-CA-63 2

{¶7} For a writ of mandamus to issue, the relator must have a clear legal right

to the relief prayed for, the respondents must be under a clear legal duty to perform the

requested act, and relator must have no plain and adequate remedy in the ordinary

course of law. State, ex rel. Berger, v. McMonagle, 6 Ohio St.3d 28, 451 N.E.2d 225.

{¶8} Petitioner has failed to name a proper respondent. Respondent has

captioned the petition as State of Ohio v. Mark E. Hurst. The State of Ohio does not

have a legal duty to rule on motions filed by a litigant in a court case. For this reason, a

writ of mandamus does not lie against the State.

{¶9} For these reasons, Respondent's Motion to Dismiss is granted. The petition

for a writ of mandamus is dismissed.

{¶10} PETITION FOR WRIT DISMISSED.

{¶11} COSTS TO RELATOR.

By: Farmer, P.J. Hoffman, J. and Wise, J. concur

_________________________ HON. SHEILA G. FARMER

_________________________ HON. WILLIAM B. HOFFMAN

_________________________ HON. JOHN W. WISE IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT LICKING COUNTY, OHIO

STATE OF OHIO : : CASE NO. 12-CA-63 Respondent : : -vs- : JUDGMENT ENTRY : MARK E. HURST : : Relator :

For the reasons stated in the Memorandum-Opinion on file, Petitioner’s

Writ of Mandamus is hereby dismissed. Costs taxed to Relator.

__________________________ HON. SHEILA G. FARMER

__________________________ HON. WILLIAM B. HOFFMAN

__________________________ HON. JOHN W. WISE