State ex rel. Davies v. Schroeder , 2014 Ohio 973 ( 2014 )


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  • [Cite as State ex rel. Davies v. Schroeder, 
    2014-Ohio-973
    .]
    IN THE COURT OF APPEALS
    ELEVENTH APPELLATE DISTRICT
    ASHTABULA COUNTY, OHIO
    STATE OF OHIO ex rel.                                     :   PER CURIAM OPINION
    ROBERT R. DAVIES,
    :
    Relator,
    :   CASE NO. 2013-A-0059
    - vs -
    :
    JUDGE DAVID A. SCHROEDER,
    :
    Respondent.
    Original Action for Writ of Procedendo.
    Judgment: Petition dismissed.
    Robert R. Davies, pro se, 7455 Harmon Road, Conneaut, OH 44030 (Relator).
    Nicholas A. Iarocci, Ashtabula County Prosecutor, Ashtabula County Courthouse, 25
    West Jefferson Street, Jefferson, OH 44047 (For Respondent).
    PER CURIAM.
    {¶1}      This original action is before this court for final disposition of respondent’s
    motion to dismiss the procedendo petition. Respondent, Judge David A. Schroeder of
    the Ashtabula County Court, Western District, moves for dismissal because he has
    already performed the act that relator, Robert R. Davies, sought to compel. For the
    following reasons, the dismissal is warranted.
    {¶2}     Relator requested the issuance of a writ to require respondent to render a
    ruling on two post-judgment motions in the underlying criminal case. In his petition,
    relator alleged that, in April 2013, he filed a motion to seal his criminal record and a
    motion for reimbursement of certain funds. He also alleged that, despite conducting a
    hearing on the motions in May 2013, respondent still had not issued a final judgment on
    the two motions as of the date of the filing of the procedendo petition in October 2013.
    {¶3}    In maintaining that relator’s sole claim for relief is now moot, respondent
    asserts that, within one week of the filing of this case, he ruled on both motions. In light
    of this, he submits that no further proceedings are needed because relator’s prayer for
    relief under the procedendo claim has already been satisfied. Relator does not oppose
    this motion.
    {¶4}    “As a general proposition, a writ of procedendo will only lie when the
    relator can demonstrate, inter alia, that he has a legal right to have a judicial officer
    proceed in an underlying case and release a final determination on a pending matter.
    State ex rel. Fontanella v. Kontos, 11th Dist. No. 2007-T-0055, 
    2007-Ohio-5213
    , at ¶13.
    In light of the nature of this element, *** the merits of a claim in procedendo will be
    considered moot when the judicial officer has already completed the precise act which
    the relator sought to compel. Perry v. McKay, 11th Dist. No. 2009-T-0023, 2009-Ohio-
    5767, at ¶16.” Davis v. Smalheer, 11th Dist. Geauga No. 2010-G-2982, 2010-Ohio-
    6061, ¶5.
    {¶5}    Respondent has not attached the judgment entry supporting his assertion
    that he has issued a dispositive judgment. However, the failure to attach a copy of the
    purported judgment to the dismissal motion does not always mean that the “mootness”
    argument must be rejected:
    {¶6}    “In regard to this point, this court would indicate that, in most instances in
    which a judge has moved to dismiss on the basis that a judgment on the pending matter
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    has already been rendered, the judge has usually attached a certified copy of the
    judgment to his motion. See Penko [v. Mitrovich, 11th Dist. No. 2003-L-191], 2004-
    Ohio-6326, at ¶6. However, although the submission of certified copies may be the
    best method for establishing the existence of such a judgment, we have also indicated
    that a finding of mootness can be made in an original action when the relator does not
    contest the respondent’s contention. See State ex rel. Pasqualone v. Yost (July 24,
    1998), 11th Dist. No. 98-A-0052, 
    1998 Ohio App. LEXIS 3424
    .” State ex rel. Verbanik
    v. Bernard, 11th Dist. Trumbull No. 2006-T-0080, 
    2007-Ohio-1786
    , ¶8.
    {¶7}   Even though Verbanik involved a claim for a writ of mandamus, this court
    has followed the identical analysis in relation to a procedendo claim. See Davis v. Burt,
    11th Dist. Geauga No. 2011-G-3009, 
    2011-Ohio-5340
    , ¶7.
    {¶8}   In this case, despite being accorded ample time to do so, relator has not
    submitted a response or brief in opposition to respondent’s motion to dismiss. To this
    extent, he has admitted respondent’s assertion concerning the issuance of a judgment
    disposing of the two pending motions in the underlying criminal action. Hence, even in
    the absence of a certified copy of the judgment, the materials before this court support
    the conclusion that relator’s procedendo claim is moot because respondent has already
    performed the judicial act that the writ was intended to compel.
    {¶9}    Respondent’s motion to dismiss the procedendo petition is granted. It is
    the judgment and order of this court that relator’s entire procedendo petition is hereby
    dismissed.
    DIANE V. GRENDELL, J., THOMAS R. WRIGHT J., COLLEEN MARY O’TOOLE, J.,
    concur.
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