State ex rel. Duncan v. DeWeese , 2011 Ohio 5194 ( 2011 )

[Cite as State ex rel. Duncan v. DeWeese, 2011-Ohio-5194.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO, EX. REL : Hon. William B. Hoffman, P.J.
ROY SHANE DUNCAN : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
Relator :
:
-vs- : Case No. 2011-CA-67
:
JUDGE JAMES DEWEESE :
: OPINION
Respondent
CHARACTER OF PROCEEDING: Writ of Procedendo
JUDGMENT: Writ Issued
DATE OF JUDGMENT ENTRY: October 5, 2011
APPEARANCES:
For Relator For Respondent
ROY DUNCAN PRO SE JILL M. COCHRAN
North Central Correctional Inst. Assistant Richland County Prosecutor
670 Marion Williamsport Rd. E. 38 South Park Street, 2nd Fl.
Box 1812 Mansfield, OH 44902
Marion, OH 43301-1812
[Cite as State ex rel. Duncan v. DeWeese, 2011-Ohio-5194.]
Hoffman, P.J.
{1} Relator filed a Petition for Writ of Procedendo requesting a writ to compel
the trial court to rule on Relator’s motion for resentencing filed with the trial court on
March 10, 2011. Respondent has filed a motion to dismiss urging this Court to deny the
requested writ, arguing Sup.R. 40 is advisory and not mandatory.
{2} To be entitled to a writ of procedendo, “a relator must establish a clear
legal right to require the court to proceed, a clear legal duty on the part of the court to
proceed, and the lack of an adequate remedy in the ordinary course of law.” Miley,
supra, at 65, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas
(1995), 72 Ohio St.3d 461, 462, 650 N.E.2d 899. The Supreme Court has noted, “The
writ of procedendo is merely an order from a court of superior jurisdiction to one of
inferior jurisdiction to proceed to judgment. It does not in any case attempt to control the
inferior court as to what that judgment should be.” State ex rel. Davey v. Owen, 133
Ohio St. 96, *106, 12 N.E.2d 144, 149 (1937).
{3} “Sup.R. 40(A)(3) provides that motions shall be ruled upon within 120
days from the date of filing. Thus, a complaint in mandamus to compel a ruling on a
motion which has been pending less than that time is premature. State ex rel. Rodgers
v. Cuyahoga Cty. Court of Common Pleas (1992), 83 Ohio App.3d 684, 615 N.E.2d 689and State ex rel. Byrd v. Fuerst (July 12, 1991), Cuyahoga App. No. 61985.” State ex
rel. Smith v. Suster, Cuyahoga App. No. 89031, 2007-Ohio-89, at ¶ 2.
{4} A meritorious claim in procedendo does not automatically exist because a
motion remains pending longer than 120 days, “[U]nder Superintendence Rule 40(A)(3)
a trial court is directed to rule on a pending motion within 120 days from the date the
Richland County, Case No. 2011-CA-67 3
motion was filed. [T]he passage of 120 days does not automatically entitle a litigant to a
writ of mandamus. As stated in State ex. Rel. Rodgers v. Cuyahoga Cty. Court of
Common Pleas (1992), 84 Ohio App.3d 684, 615 N.E.2d 689; “The rule may impose
upon the trial court the duty to rule upon motions within one hundred twenty days for
purposes of efficient court administration. That, however, does not necessarily mean
that a corresponding right is created for litigants to force a trial judge to rule upon any
motion within one hundred twenty days, regardless of the posture of the litigation. The
need for discovery, the issues presented, the possibility of settlement, other motions
pending in the case, and even other matters pending before the court could all, inter
alia, be sufficient reason for the trial court within its proper discretion not to rule upon a
motion within one hundred twenty days. Furthermore, allowing litigants to enforce such
a rigid rule risks depriving other litigants of due process, invites gamesmanship in
litigation, and could frustrate the policy of deciding cases on their merits and not on
procedural technicalities. State ex rel. Richard v. Gorman (Aug. 19, 1992), Cuyahoga
App. No. 63333, unreported.” Powell v. Houser 2007 WL 1666587.
{5} Despite the fact Sup.R. 40 does not necessarily create a clear legal duty
on the 121st day after a motion is filed, in this case, Respondent has failed to offer any
explanation to why he has failed to rule upon the motion. There are no known reasons
such as those cited by our colleagues in the Eight District noted above which would
have prevented Respondent from ruling on the motion within 120 days. Furthermore,
as of the filing of this Complaint, an additional two months have passed without a ruling
on the motion.
Richland County, Case No. 2011-CA-67 4
{6} While this Court does not intend to suggest how the trial court should rule
on the motion filed on March 10, 2011, this Court finds the trial court should enter a
ruling on the motion forthwith.
{7} For these reasons, the writ of procedendo is granted.
By Hoffman, P.J.,
Farmer, J., and
Delaney, J., concur
s/ William B. Hoffman ________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney ________________
HON. PATRICIA A. DELANEY
[Cite as State ex rel. Duncan v. DeWeese, 2011-Ohio-5194.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX. REL
ROY SHANE DUNCAN :
:
Relator :
:
:
-vs- : JUDGMENT ENTRY
:
JUDGE JAMES DEWEESE :
:
:
Respondent : CASE NO. 2011-CA-67
For the reasons stated in our accompanying Opinion, Relator’s Petition for a Writ of
Procedendo is granted. The Richland County Court of Common Pleas shall proceed to
rule on Relator’s pending motion forthwith. Costs waived.
s/ William B. Hoffman ________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney ________________
HON. PATRICIA A. DELANEY