State ex rel. Battigaglia v. Kubilus , 2020 Ohio 5015 ( 2020 )

[Cite as State ex rel. Battigaglia v. Kubilus, 2020-Ohio-5015.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE EX REL. ROMERO A. JUDGES:
BATTIGAGLIA, JR.
Hon. William B. Hoffman, P.J.
Relator Hon. W. Scott Gwin, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2020CA00125
HON. JUDGE RICHARD J. KUBILUS
Respondent O P I N IO N
CHARACTER OF PROCEEDINGS: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 21, 2020
APPEARANCES:
For Relator For Respondent
ROMERO A. BATTIGAGLIA, JR. HON. RICHARD J. KUBILUS
A717741 Canton Municipal Court
London Correctional Institution 218 Cleveland Avenue, S.W.
1580 State Route 56, S.W. Canton, Ohio 44701
London, Ohio 43140
Stark County, Case No. 2020CA00125 2
Hoffman, P.J.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
{¶1} Relator, Romero A. Battigaglia Jr. brings this matter before the Court upon
a Complaint for Writ of Mandamus. Mr. Battigaglia seeks relief against Respondent,
Judge Richard J. Kubilus. He requests this Court issue a preemptory writ of mandamus
“directing the respondent to properly adjudicate Relator’s motion to vacate costs and
fines” related to two previous cases in the Canton Municipal Court (Case Nos. 2009 TRC
7560, 2009 CRB 4667). (Complaint Mandamus at ¶ 9)
{¶2} Mr. Battigaglia is currently incarcerated at London Correctional Institution.
(Id. at ¶ 1) He alleges on or around June 19th, 2020, he filed a Motion to Vacate Costs
and Fines in the Stark County Municipal Court.1 (Id. at ¶¶ 2-3) Judge Kubilus sent a letter
to Mr. Battigaglia in response to his motion stating, “I am in receipt of a recent Motion
regarding the above cases. Upon release from your facility, you may appear in my
courtroom on any Tuesday at 9:00am to discuss your case further.” (Id. at ¶¶ 4-5)
{¶3} Mr. Battigaglia believes he has a right to a judgment entry granting or
denying his motion and claims Judge Kubilus had a clear legal duty to enter such a
judgment. (Id. at ¶¶ 6-7) Mr. Battigaglia filed this original action requesting a preemptory
writ of mandamus because he believes he has no adequate remedy at law and is unable
to appeal Judge Kubilus’s letter as it is not a judgment entry or final appealable order. (Id.
at ¶ 8)
1 Mr. Battigaglia actually filed his Motion to Vacate Costs and Fines in the Canton Municipal Court.
Stark County, Case No. 2020CA00125 3
{¶4} Following Mr. Battigaglia’s filing of his mandamus action, Judge Kubilus
issued a Judgment Entry on October 16, 2020 denying Mr. Battigaglia’s Motion to Vacate
Costs and Fines in both cases.
MANDAMUS ELEMENTS
{¶5} To be entitled to a writ of mandamus, three elements must be proven by
clear and convincing evidence. They are: (1) a clear legal right to the requested relief, (2)
a clear legal duty on the part of the respondent to provide it, and (3) the lack of an
adequate remedy in the ordinary course of the law. State ex rel. Zander v. Judge of
Summit Cty. Common Pleas Court, 156 Ohio St.3d 466, 2019-Ohio-1704, 129 N.E.3d
401, ¶ 4. “Mandamus is an extraordinary remedy ‘to be issued with great caution and
discretion and only when the way is clear.’ ” State ex rel. Taylor v. Glasser, 50 Ohio St.2d
165, 166, 364 N.E.2d 1 (1977), citing State ex rel. Kriss v. Richards, 102 Ohio St. 455,
457, 132 N.E. 23 (1921), and State ex rel. Skinner Engine Co. v. Kouri, 136 Ohio St. 343,
25 N.E.2d 940 (1940), paragraph one of the syllabus.
‘It is a well-settled general rule in Ohio that the issuance of a writ of
mandamus rests, to a considerable extent at least, within the sound
discretion of the court to which application for the writ is made. The writ is
not demandable as a matter of right, or at least is not wholly a matter of
right; nor will it issue unless the relator has a clear right to the relief sought,
and makes a clear case for the issuance of the writ. The facts submitted
and the proof produced must be plain, clear, and convincing before a court
is justified in using the strong arm of the law by way of granting the writ.’
Stark County, Case No. 2020CA00125 4
{¶6} (Citation omitted.) State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d
141, 161, 228 N.E.2d 631 (1967).
LEGAL ANALYSIS
{¶7} Mr. Battigaglia asks this Court to issue a preemptory writ of mandamus
ordering Judge Kubilus to adjudicate his Motion to Vacate Costs and Fines. Because
Judge Kubilus has ruled upon Mr. Battigaglia’s motion, as requested in his Complaint for
Writ of Mandamus, we will not issue the writ to compel an act already performed. See
State ex rel. Jerninghan v. Cuyahoga Cty. Court of Common Pleas, 74 Ohio St.3d 278,
658 N.E.2d 723 (1996) (“A writ of mandamus will not issue to compel an act already
performed. State ex rel. Gantt v. Coleman (1983), 6 Ohio St.3d 5, 6 OBR 4, 450 N.E.2d
1163.”)
Stark County, Case No. 2020CA00125 5
{¶8} For the foregoing reasons, Mr. Battigaglia’s Complaint for Writ of
Mandamus is dismissed. The clerk of courts is hereby directed to serve upon all parties
not in default notice of this judgment and its date of entry upon the journal. See Civ.R.
58(B).
WRIT DISMISSED.
COSTS TO RELATOR.
IT IS SO ORDERED.
By: Hoffman, P.J.
Gwin, J. and
Baldwin, J. concur