Albino v. Clerk of Courts, Stark Cty. Probate Court ( 2012 )


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  • [Cite as Albino v. Clerk of Courts, Stark Cty. Probate Court, 
    2012-Ohio-235
    .]
    COURT OF APPEALS
    STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    ANGEL L. ALBINO-ALBINO
    Relator
    -vs-
    CLERK OF COURTS, PROBATE COURT OF STARK COUNTY
    Respondent
    JUDGES:
    Hon. William B. Hoffman, P .J.
    Hon. Sheila G. Farmer, J.
    Hon. John W. Wise, J.
    Case No. 2011 CA 00205
    OPINION
    CHARACTER OF PROCEEDING:                                Writ of Mandamus
    JUDGMENT:                                               Dismissed
    DATE OF JUDGMENT ENTRY:                                 January 23, 2012
    APPEARANCES:
    For Relator                                             For Respondent
    ANGEL L. ALBINO-ALBINO                                  JOHN D. FERRERO
    PRO SE                                                  PROSECUTING ATTORNEY
    MANSFIELD CORRECTIONAL INST.                            AMY A. SABINO
    Post Office Box 788                                     ASSISTANT PROSECUTOR
    Mansfield, Ohio 44901                                   110 Central Plaza South, Suite 510
    Canton, ohio 44702
    Wise, J.
    {¶1}   Relator, Angel L. Albino-Albino, has filed a Petition for Writ of Mandamus
    requesting a writ be issued which would require Respondent to accept an objection to a
    petition for adoption for filing. Respondent, Judge Dixie Park, has filed a Motion to
    Dismiss.
    {¶2}   Relator presented an objection to a petition for adoption to the Clerk of the
    Probate Court. The objection was returned to Respondent with a letter indicating the
    objection would not be filed without a filing fee. The letter also advised Respondent that
    the filing fee would not be waived under any circumstances.
    {¶3}   Once the instant Petition was filed, Respondent through counsel agreed to
    allow Relator to file an objection without advancing the filing fee. Relator in turn did file
    the objection with Respondent on October 20, 2011.
    {¶4}   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 (1983), 
    6 Ohio St.3d 28
    , 6 OBR 50,
    
    451 N.E.2d 225
    .
    {¶5}   The Supreme Court has held, “Neither 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 (2000), 
    88 Ohio St.3d 313
    , 318, 
    725 N.E.2d 663
    , 668.
    {¶6}     Because the relief requested in the Petition has been performed, we find
    the Petition to be moot. For this reason, Respondent’s Motion to Dismiss is granted.
    The request for the issuance of a writ of mandamus is denied.
    By: Wise, J.
    Hoffman, P. J., and
    Farmer, J., concur.
    ___________________________________
    ___________________________________
    ___________________________________
    JUDGES
    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    ANGEL L. ALBINO-ALBINO                      :
    :
    Relator                              :
    :
    -vs-                                        :         JUDGMENT ENTRY
    :
    CLERK OF COURTS, PROBATE                    :
    COURT OF STARK COUNTY                       :
    :
    Respondent                           :         Case No. 2011 CA 00205
    For   the   reasons   stated   in   our   accompanying   Memorandum-Opinion,
    Respondent’s Motion to Dismiss is granted. The request for the issuance of a writ of
    mandamus is denied.
    Court costs are waived.
    ___________________________________
    ___________________________________
    ___________________________________
    JUDGES
    

Document Info

Docket Number: 2011 CA 00205

Judges: Wise

Filed Date: 1/23/2012

Precedential Status: Precedential

Modified Date: 10/30/2014