Pomales v. Fuerst ( 2013 )

[Cite as Pomales v. Fuerst, 2013-Ohio-4605.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100279
ARCHIE T. POMALES
RELATOR
vs.
HONORABLE NANCY FUERST
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Order No. 468718
Motion No. 468307
RELEASE DATE: October 15, 2013
FOR RELATOR
Archie T. Pomales, pro se
Inmate No. 24334
Huttonsville Correctional Center
P.O. Box 1
Huttonsville, WV 26273
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Archie T. Pomales, relator, has petitioned this court to issue a writ of
mandamus to compel the trial court to rule on his motion to dismiss filed on May 9, 2013,
in State v. Pomales, Cuyahoga C.P. Nos. CR-95-329576 and CR-95-331107.
Respondent has filed a motion for summary judgment. For the reasons that follow, we
grant respondent’s motion for summary judgment and deny relator’s complaint for a writ
of mandamus because it is procedurally defective and moot.
{¶2} Relator did not properly designate the original action by using the name of
the state on the relation of the person applying, and he did not include the address of the
parties as required by Civ.R. 10(A) and 2731.04. The failure to caption an original
action properly constitutes sufficient grounds for dismissing the complaint. Rust v.
Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766; Barry
v. Galvin, 8th Dist. Cuyahoga No. 85990, 2005-Ohio-2324, ¶ 2, citing Allen v. Court of
Common Pleas of Allen Cty., 173 Ohio St. 226, 181 N.E.2d 270 (1962).
{¶3} Relator has further failed to comply with R.C. 2969.25 by failing to file an
affidavit detailing his prior civil filings. The Supreme Court has held, “The
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. Noncompliance with R.C. 2969.25 warrants
dismissal. State ex rel. Graham v. Niemeyer, 106 Ohio St.3d 466, 467, 2005-Ohio-5522,
835 N.E.2d 1250.
{¶4} The complaint is also moot. Respondent’s motion for summary judgment
includes an attached copy of the trial court’s entry that was journalized on August 12,
2013, which demonstrates that a ruling has been rendered with regard to relator’s motion
to dismiss filed in each case on May 9, 2013. “[R]elief is unwarranted because mandamus
and procedendo will not compel the performance of a duty that has already been
performed.” State ex rel. Hopson v. Cuyahoga Cty. Court of Common Pleas, 135 Ohio
St.3d 456, 2013-Ohio-1911, 989 N.E.2d 49, ¶ 4.
{¶5} Accordingly, we grant respondent’s motion for summary judgment and
deny relator’s complaint for writ of mandamus. Costs are assessed against relator but
waived. 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.
__________________________________________
TIM McCORMACK, JUDGE
MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR