In re McCulloch v. Freidman ( 2012 )


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  • [Cite as In re McCulloch v. Freidman, 
    2012-Ohio-2777
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 97748
    IN RE: CEDRIC MCCULLOCH, ET AL.
    RELATORS
    vs.
    JUDGE STUART A. FRIEDMAN
    RESPONDENT
    JUDGMENT:
    WRIT DENIED
    Writ of Mandamus
    Motion Nos. 451570 and 452035
    Order No. 455625
    RELEASE DATE:               June 20, 2012
    FOR RELATORS
    Cedric McCulloch, Pro Se
    Laurie McCulloch, Pro Se
    2820 Lander Road
    Pepper Pike, Ohio 44124
    ATTORNEYS FOR RESPONDENT
    William D. Mason, Esq.
    Cuyahoga County Prosecutor
    By: Charles E. Hannan, Jr., Esq.
    Assistant County Prosecutor
    8th Floor, Justice Center
    1200 Ontario Street
    Cleveland, Ohio 44113
    JAMES J. SWEENEY, J.:
    {¶1} Relators, Cedric and Laurie McCulloch, are parties in BAC Home Loans
    Servicing LP v. McCulloch, Cuyahoga C.P. Case No. CV-761872, which has been
    assigned to respondent judge.   Relators aver that they filed a counterclaim in Case No.
    CV-761872 and filed motions for summary judgment and default judgment on their
    counterclaim.   They request that this court compel respondent to grant summary
    judgment or a default judgment on their counterclaim.
    {¶2} Relators and respondent have filed motions for summary judgment.
    Respondent observes that relators did not file a counterclaim in Case No. CV-761872.
    He correctly observes that respondents filed a counterclaim in Third Fed. S. & L. Assn. v.
    McCulloch, Cuyahoga C.P. Case No. CV-753811. Indeed, relators acknowledge in their
    motion for summary judgment that they filed the counterclaim in the wrong case.
    {¶3} Attached to respondent’s motion for summary judgment is a copy of his
    January 4, 2012 memorandum of opinion and order in Case No. CV-761872 denying
    relators’ motions for summary judgment and default judgment on the ground that there
    was no counterclaim pending in Case No. CV-761872. To the extent that relators seek a
    ruling on their motions for summary judgment and default judgment in Case No.
    CV-761872, respondent has discharged his duty and this action is moot. To the extent
    that relators request that this court compel respondent to grant those motions, relief in
    mandamus is not appropriate. Mandamus does not lie to control judicial discretion.
    See, e.g., In re Barksdale, 8th Dist. No. 94221, 
    2010-Ohio-269
    , ¶ 4. As a consequence,
    we grant respondent’s motion for summary judgment and deny relators’ motion for
    summary judgment.
    {¶4} Additionally, R.C. 2731.04 requires that an action in mandamus be brought
    in the name of the state on relation of the person applying. Failure to comply with this
    requirement is a ground for dismissal. See, e.g., Brooks v. State, 8th Dist. No. 97678,
    
    2012-Ohio-1361
    .
    {¶5} Accordingly, respondent’s motion for summary judgment is granted and
    relators’ motion for summary judgment is denied. Relators to pay costs. The court
    directs the clerk of court to serve all parties with notice of this judgment and its date of
    entry upon the journal as required by Civ.R. 58(B).
    {¶6} Writ denied.
    JAMES J. SWEENEY, JUDGE
    MARY EILEEN KILBANE, P.J., and
    FRANK D. CELEBREZZE, JR., J., CONCUR
    

Document Info

Docket Number: 97748

Judges: Sweeney

Filed Date: 6/20/2012

Precedential Status: Precedential

Modified Date: 10/30/2014