Ramirez v. Richland Cty. Common Pleas Court , 2012 Ohio 661 ( 2012 )

[Cite as Ramirez v. Richland Cty. Common Pleas Court, 2012-Ohio-661.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MOISES RAMIREZ : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Petitioner : Hon. John W. Wise, J.
: Hon. Julie A. Edwards, J.
-vs- :
: CASE NO. 11CA87
RICHLAND COUNTY COMMON :
PLEAS COURT :
: OPINION
Respondent :
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2008CV0403
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: February 7, 2012
APPEARANCES:
For Petitioner: For Respondent:
Moises Ramirez, Pro Se Daniel J. Benoit, Esq.
Allen Correctional Institution Assistant Richland County Prosecutor
P.O. Box 4501 38 South Park, Second Floor
Lima, Ohio 45802-4501 Mansfield, Ohio 44902
Richland County, Case No. 11CA87
Delaney, P.J.
{¶1} Petitioner Moises Ramirez has filed a “Motion for Writ of Mandamus”
requesting a writ be issued which would require Respondent to rule on a motion
that Petitioner filed in the trial court. Respondent has filed a Motion to Dismiss
indicating the trial court has now ruled on the motion.
{¶2} Prior to reaching the merits of the motion for writ and motion to dismiss,
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.” 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). Petitioner herein has not
properly brought this cause as a petition in the name of the state. 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. See also,
Selway v. Court of Common Pleas Stark County, 5th Dist. No. 2007CA00213,
2007-Ohio-4566.
{¶3} Petitioner also has failed to comply with R.C. 2969.25 by neglecting to file
an affidavit detailing his prior civil filings. The Supreme Court has held, “[t]he
requirements of R.C. 2969.25 are mandatory, and failure to comply with them
subjects an inmate's action to dismissal.” State ex rel. White v. Bechtel, 99 Ohio
St.3d 11, 2003-Ohio-2262, 788 N.E.2d 634, ¶ 5.
Richland County, Case No. 11CA87 2
{¶4} Even had Petitioner properly filed this cause, we would not find the
issuance of a writ of mandamus to be warranted.
{¶5} 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 (1983).
{¶6} The Supreme Court has held, “[n]either procedendo nor mandamus 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.” State ex
rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 318, 2000-Ohio335, 725 N.E.2d
663, 668.
{¶7} Because the relief requested in the motion has been obtained, a ruling on
the motion pending in the trial court, we find the request for writ of mandamus to
be moot.
Richland County, Case No. 11CA87 3
{¶8} For this reason, Respondent’s Motion to Dismiss is granted. The petition for
a writ of mandamus is dismissed.
By: Delaney, P.J.
Wise, J. and
Edwards, J. concur
____________________________
HON. PATRICIA A. DELANEY
____________________________
HON. JOHN W. WISE
____________________________
HON. JULIE A. EDWARDS
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MOISES RAMIREZ : CASE NO. 11CA87
:
Petitioner :
:
-vs- : JUDGMENT ENTRY
:
RICHLAND COUNTY COMMON :
PLEAS COURT :
:
Respondent :
For the reasons stated in our accompanying Memorandum-Opinion, this
cause is dismissed.
Costs taxed to Petitioner.
______________________________
HON. PATRICIA A. DELANEY
______________________________
HON. JOHN W. WISE
______________________________
HON. JULIE A. EDWARDS