State ex rel. Price v. Berger , 2023 Ohio 4661 ( 2023 )

[Cite as State ex rel. Price v. Berger, 2023-Ohio-4661.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE EX REL., KRISTON PRICE, :
Relator, :
No. 113175
v. :
JUDGE ROBERT BERGER, :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: COMPLAINT DISMISSED
DATED: December 20, 2023
Writ of Procedendo
Motion No. 569675
Order No. 570025
Appearances:
Kriston Price, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Matthew T. Fitzsimmons, IV, Assistant
Prosecuting Attorney, for respondent.
ANITA LASTER MAYS, A.J.:
Kriston Price, the relator, has filed a complaint for a writ of
procedendo. Price seeks a writ of procedendo to compel Judge Robert Berger, the
respondent, to render rulings with regard to motions that are pending in Cuyahoga
County Juvenile Court J.C. No. FA-21-100501. Price argues that Judge Berger has
failed to rule on a motion for shared parenting, motion for visitation, and a motion
to modify child support. Judge Berger has filed a motion to dismiss arguing that
Price’s request for procedendo is moot. This court grants Judge Berger’s motion to
dismiss.
Standards for Procedendo
In order for this court to grant a writ of procedendo, Price must
demonstrate a clear legal right to require a court to proceed, a clear legal duty on the
part of the court to proceed, and a lack of an adequate remedy in the ordinary course
of the law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio
St.3d 461, 650 N.E.2d 899 (1995); State ex rel. Knox v. Russo, 8th Dist. Cuyahoga
Nos. 102589 and 103003, 2015-Ohio-3773. A writ of procedendo is appropriate
when a court has refused to enter judgment or has unnecessarily delayed proceeding
to judgment. State ex rel. Brown v. Logan, 138 Ohio St.3d 286, 2014-Ohio-769, 6
N.E.3d 42; State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d
180, 652 N.E.2d 742 (1995).
Legal Analysis
Attached to Judge Berger’s motion to dismiss is a copy of a judgment
entry, journalized November 1, 2023, that demonstrates Price was granted
temporary visitation with his minor child via Zoom. The request for a writ of
procedendo, in order to require Judge Berger to render a ruling with regard to the
motion for visitation, is moot. State ex rel. Pettway v. Cuyahoga Cty. Court of
Common Pleas, 8th Dist. Cuyahoga No. 98699, 2012-Ohio-5423. The judgment
entry also provided that the motions to modify child support and shared parenting
would be heard at a pretrial hearing scheduled for November 17, 2023. The Ohio
Supreme Court has held that setting a matter for hearing renders an action for a writ
of procedendo moot. State ex rel. Rohrer v. Holzapfel, 149 Ohio St.3d 132, 2016-
Ohio-7827, 73 N.E.3d 482; State ex rel. S.Y.C. v. Floyd, 8th Dist. Cuyahoga No.
106955, 2018-Ohio-2743.
Conclusion
Accordingly, we grant Judge Berger’s motion to dismiss. Costs to Price;
costs waived. The court directs the clerk of courts to serve all parties with notice of
this judgment and the date of entry upon the journal as required by Civ.R. 58(B).
Complaint dismissed.
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
EMANUELLA D. GROVES, J., and
MARY J. BOYLE, J., CONCUR