Harris v. Smith ( 2012 )

[Cite as Harris v. Smith, 2012-Ohio-151.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
DWAYNE HARRIS : W. Scott Gwin, P.J.
: John W. Wise, J.
Plaintiff : Julie A. Edwards, J.
:
-vs- : Case No. 2011CA00204
:
:
KEITH SMITH, et al., : OPINION
Defendants
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
2010CV0165D
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: January 17, 2012
APPEARANCES:
For Plaintiff For Defendant Keith Smith
DWAYNE HARRIS LAWRENCE BABICH
P.O. Box 8107 Assistant Attorney General
Mansfield, Ohio 44901 Criminal Justice Section
150 E. Gay Street, 16th Floor
Columbus, Ohio 43215
For Defendant Judge
James DeWeese
JILL COHRAN
Assistant Richland County Prosecutor
38 South Park Street, 2nd Floor
Mansfield, Ohio 44902
[Cite as Harris v. Smith, 2012-Ohio-151.]
Edwards, J.
{¶1} Plaintiff, Dwayne Harris, has filed a “Request for Writ of Procedendo Ad
Judicium” asking this Court to order Defendants, Keith Smith and Judge DeWeese to
rule on outstanding motions in his trial court case.
{¶2} Initially, we find this cause of action has not been filed in the proper venue.
All of the conduct which is the subject of the complaint occurred in Richland County.
Plaintiff filed the complaint in Stark County. There is no conduct alleged to have
occurred in Stark County and no defendant resides in Stark County. Because this Court
also has jurisdiction to review original actions in Richland County, we will address the
merits of the complaint.
{¶3} We find Defendant Smith, who is the warden of the Mansfield Correctional
Institution, is not an appropriate party to this case. Writs of procedendo are limited to a
superior court ordering a lower court to proceed, “[T]he limited purpose of the writ is to
require a lower court to go forward ‘when a court has either refused to render a
judgment or has unnecessarily delayed proceeding to judgment.’ State ex rel. Miley v.
Parrott (1996), 77 Ohio St.3d 64, 65, 671 N.E.2d 24.” State ex rel. Lemons v. Kontos
2009 WL 4756269, 2 (Ohio App. 11 Dist.). Defendant Smith is not a court or a judge of
a court. For this reason, the complaint is dismissed as to Defendant Smith.
{¶4} We now turn to the complaint as it relates to Judge DeWeese. The
Supreme Court has held that a judge’s performance of the requested act makes the
complaint in procedendo moot. State ex rel. Hazel v. Bender, 129 Ohio St.3d 496, 496,
954 N.E.2d 114, 115 (Ohio,2011). Subsequent to the filing of the instant complaint,
Defendant DeWeese ruled on outstanding motions by issuing a final, appealable order
Stark County App. Case No. 2011CA00204
3
in the underlying case which Plaintiff has appealed to this Court. For this reason, we
find the complaint is moot as it relates to Defendant DeWeese.
{¶5} For these reasons, we find the complaint in procedendo lacks merit and
dismiss the complaint.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/ads1212
[Cite as Harris v. Smith, 2012-Ohio-151.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DWAYNE HARRIS :
:
Plaintiff :
:
:
-vs- : JUDGMENT ENTRY
:
KEITH SMITH, et al. :
:
Defendants : CASE NO. 2011CA00204
For the reasons stated in our accompanying Memorandum-Opinion on file, the
Complaint is dismissed. Costs assessed to plaintiff.
_________________________________
_________________________________
_________________________________
JUDGES