State ex rel. Black v. Brown , 2022 Ohio 2783 ( 2022 )

[Cite as State ex rel. Black v. Brown, 2022-Ohio-2783.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Franklin Black, :
Relator, :
No. 21AP-55
v. :
(REGULAR CALENDAR)
Franklin County Common Pleas :
Judge [Kim] Brown,
:
Respondent.
:
D E C I S I O N
Rendered on August 11, 2022
On brief: Franklin Black, pro se.
On brief: G. Gary Tyack, Prosecuting Attorney, and
Ashley M. Wnek, for respondent.
IN PROCEDENDO
MENTEL, J.
{¶ 1} Relator, Franklin Black, brought this original action seeking a writ of
procedendo ordering Respondent, a judge of the Franklin County Court of Common Pleas,
to rule on the motion for postconviction relief he filed on October 16, 2019, in the criminal
case against him in that court. The State of Ohio filed a motion to dismiss Mr. Black's
complaint in that court on October 21, 2019. Respondent has filed a motion to dismiss,
arguing that this action is moot. Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth
District Court of Appeals, this matter was referred to a magistrate.
{¶ 2} The magistrate recommends that we dismiss Mr. Black's complaint for a writ
of procedendo as moot because the trial court judge ruled on relator's motion on
No. 21AP-55 2
December 16, 2019. (Apr. 12, 2021 Mag.'s Decision at 3.) The magistrate also provided
notice to the relator of the opportunity under Civ.R. 53(D)(3) to object to the findings of
fact and conclusions of law in the decision. Id.{¶ 3} Mr. Black filed no objection to the magistrate's decision. "If no timely
objections are filed, the court may adopt a magistrate's decision, unless it determines that
there is an error of law or other defect evident on the face of the magistrate's decision."
Civ.R. 53(D)(4)(c). Our review of the magistrate's decision reveals no error of law or other
evident defect. See, e.g., State ex rel. Alleyne v. Indus. Comm., 10th Dist. No. 03AP-811,
2004-Ohio-4223 (adopting the magistrate's decision where no objections were filed).
Accordingly, we adopt the decision of the magistrate, grant the respondent's motion, and
dismiss the complaint for a writ of procedendo.
Motion granted; writ of procedendo dismissed.
SADLER, and JAMISON, JJ., concur.
_________________
No. 21AP-55 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Franklin Black, :
Relator, :
v. : No. 21AP-55
Franklin County Common Pleas : (REGULAR CALENDAR)
Judge [Kim] Brown,
:
Respondent.
:
MAGISTRATE'S DECISION
Rendered on April 12, 2021
Franklin Black, pro se.
[G. Gary Tyack], Prosecuting Attorney, and Ashley M. Wnek,
for respondent.
IN PROCEDENDO ON
RESPONDENT'S MOTION TO DISMISS
{¶ 4} Relator, Franklin Black, has filed this original action seeking a writ of
procedendo ordering respondent, Franklin County Common Pleas Judge Kim Brown, to
issue a ruling on relator's October 16, 2019, petition for postconviction relief.
No. 21AP-55 4
Findings of Fact:
{¶ 5} 1. Respondent is a public official serving as a judge in the Franklin County
Court of Common Pleas, in Franklin County, Ohio.
{¶ 6} 2. Relator is a prisoner incarcerated at Chillicothe Correctional Institution.
{¶ 7} 3. Relator filed his complaint in procedendo with this court on February 12,
2021.
{¶ 8} 4. On October 16, 2019, relator filed a petition for postconviction relief in
Franklin C.P. No. 11CR-1080, over which respondent presided.
{¶ 9} 5. On October 21, 2019, in Franklin C.P. No. 11CR-1080, the State of Ohio
filed a motion to dismiss the petition for postconviction relief.
{¶ 10} 6. On December 16, 2019, respondent filed a decision and entry denying
relator's petition for postconviction relief.
{¶ 11} 7. On March 4, 2021, in the present action, respondent filed a motion to
dismiss, pursuant to Civ.R. 12(B)(6), asserting relator has no right to the requested relief
because respondent has already ruled on relator's petition for postconviction relief.
Conclusions of Law:
{¶ 12} For the reasons that follow, it is the magistrate's decision that this court grant
respondent's motion and dismiss relator's complaint.
{¶ 13} In order to be entitled to a writ of procedendo, a relator must establish a clear
legal right to require that 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. State ex rel.
Miley v. Parrott, 77 Ohio St.3d 64, 65 (1996). A writ of procedendo is appropriate when a
court has either refused to render a judgment or has unnecessarily delayed proceeding to
judgment. Id. An " 'inferior court's refusal or failure to timely dispose of a pending action is
the ill a writ of procedendo is designed to remedy.' " State ex rel. Dehler v. Sutula, 74 Ohio
St.3d 33, 35 (1995), quoting State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 110
(1994).
{¶ 14} The magistrate may take judicial notice of the pleadings and orders in related
cases when these are not subject to reasonable dispute, at least insofar as they affect the
No. 21AP-55 5
present original action. State ex rel. Nyamusevya v. Hawkins, 10th Dist. No. 19AP-199,
2020-Ohio-2690, ¶ 33, citing Evid.R. 201(B); State ex rel. Ohio Republican Party v.
Fitzgerald, 145 Ohio St.3d 92, 2015-Ohio-5056, ¶ 18; and State ex rel. Womack v. Marsh,
128 Ohio St.3d 303, 2011-Ohio-229, ¶ 8.
{¶ 15} Procedendo will not lie to compel an act that has already been performed.
State ex rel. Lester v. Pepple, 130 Ohio St.3d 353, 2011-Ohio-5756, ¶ 1; State ex rel. Kreps v.
Christiansen, 88 Ohio St.3d 313, 318 (2000), citing State ex rel. Grove v. Nadel, 84 Ohio
St.3d 252, 253 (1998).
{¶ 16} In the present matter, respondent has performed the act that relator sought
to compel, i.e., ruling on relator's October 16, 2019, motion for postconviction relief.
Therefore, procedendo will not lie.
{¶ 17} Accordingly, the magistrate recommends that this court grant respondent's
motion to dismiss relator's complaint for a writ of procedendo.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).