State ex rel. Davidson v. Beathard (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Davidson v. Beathard, Slip Opinion No. 2021-Ohio-3125.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2021-OHIO-3125THE STATE EX REL. DAVIDSON , APPELLANT, v. BEATHARD, JUDGE,
APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Davidson v. Beathard, Slip Opinion No.
2021-Ohio-3125.]
Mandamus—Petition seeking writ of mandamus to compel a trial-court judge to
direct the clerk of courts to provide petitioner with a free copy of a trial
transcript properly dismissed as moot because the court produced the
document after the mandamus action was filed—Court of appeals’
dismissal of mandamus action affirmed.
(No. 2021-0219—Submitted August 3, 2021—Decided September 14, 2021.)
APPEAL from the Court of Appeals for Fayette County, No. CA2020-11-019,
2021-Ohio-593.
__________________
Per Curiam.
SUPREME COURT OF OHIO
{¶ 1} Appellant, Richard A. Davidson, appeals the Twelfth District Court
of Appeals’ dismissal of his mandamus petition against appellee, Judge Steven P.
Beathard, as moot on the ground Judge Beathard had already performed the
requested act. Davidson has also filed several motions in this appeal. We affirm
the judgment of the court of appeals and deny all of Davidson’s motions.
I. Factual and Procedural Background
{¶ 2} In November 2020, while incarcerated at the London Correctional
Institution, Davidson filed a mandamus action in the court of appeals, seeking an
order directing Judge Beathard to provide him with a free copy of the transcript
from his criminal trial. Davidson alleged that he had been denied a copy of the
transcript since 2018 and that, as an indigent defendant, he had a right to obtain the
transcript free of charge.
{¶ 3} Judge Beathard timely responded to Davidson’s petition and agreed
that Davidson was “entitled to a gratis copy” of his trial transcript. Accordingly,
the court administrator and clerk of court’s office were directed to serve Davidson
with a copy of the transcript. Davidson admits that he subsequently received a copy
of the transcript.
{¶ 4} Following his receipt of the transcript, Davidson filed a “motion for
default judgment” with the court of appeals. Davidson argued that Judge
Beathard’s admission that Davidson was entitled to a free copy of the trial transcript
showed that Davidson had been wrongfully denied a transcript for three years and
that the denial of his request for a trial transcript had prejudiced his direct appeal of
his conviction and his pursuit of postconviction relief. Davidson argued that he
was therefore entitled to a new trial.
{¶ 5} The court of appeals dismissed Davidson’s petition in mandamus as
moot based on Davidson’s admitted receipt of the trial transcript. The court of
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January Term, 2021
appeals also denied Davidson’s motion for default judgment. In February 2021,
Davidson appealed to this court as of right.1
{¶ 6} After filing his notice of appeal with this court, Davidson filed a
Civ.R. 60(B) motion for relief from judgment with the court of appeals in March
2021. The court of appeals denied the motion, after which Davidson filed a motion
for leave to file a supplemental brief in this appeal, seeking to challenge the court
of appeals’ denial of his Civ.R. 60(B) motion. When Judge Beathard did not file
an appellee brief, Davidson filed a “motion for default judgment pursuant to App.R.
18(C),” asking this court to either grant him a new trial or reopen his appeal under
App.R. 26(B). Finally, Davidson has filed a motion for judicial notice under
Evid.R. 201, asking us to take judicial notice of the facts he alleged in an affidavit
of disqualification that he had filed against Judge Beathard.
II. Analysis
A. Motion for Leave to File Supplemental Brief
{¶ 7} Davidson argues that the court of appeals lacked jurisdiction to rule
on his Civ.R. 60(B) motion while his appeal was pending before this court. See
Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 146-
147, 637 N.E.2d 890 (1994) (an appeal divests the lower court of jurisdiction to
consider a Civ.R. 60(B) motion). In his motion for leave to file a supplemental
brief, Davidson asks the court to either (1) allow him to submit briefing related to
the court of appeals’ lack of jurisdiction to rule on his Civ.R. 60(B) motion or (2)
remand to the court of appeals to reconsider his Civ.R. 60(B) motion.
1. Along with his notice of appeal, Davidson filed a motion to consolidate this case with case No.
2021-0222, in which he appealed the court of appeals’ denial of a motion to reconsider a judgment
affirming dismissal of his petition for postconviction relief. We deny Davidson’s motion to
consolidate as moot. On April 27, 2021, we declined to accept jurisdiction in case No. 2021-0222
and denied Davidson’s motion to consolidate that case with this one. State v. Davidson, 162 Ohio
St.3d 1439, 2021-Ohio-1399, 166 N.E.3d 1262.
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SUPREME COURT OF OHIO
{¶ 8} We deny Davidson’s motion for leave. Whether the court of appeals
properly considered Davidson’s Civ.R. 60(B) motion is not at issue in this appeal.
The appeal before us relates solely to the court of appeals’ dismissal of Davidson’s
mandamus petition as moot. Briefing on the Civ.R. 60(B) issue is therefore
unnecessary for us to decide this appeal.
{¶ 9} We also decline Davidson’s request that we remand this matter to the
court of appeals to reconsider its denial of the Civ.R. 60(B) motion. A motion to
remand for the purpose of allowing the lower court to consider a Civ.R. 60(B)
motion must be supported by good cause. See Majnaric v. Majnaric, 46 Ohio
App.2d 157, 161, 347 N.E.2d 552 (1975), cited with approval in Howard at 147.
In this case, Davidson’s motion makes clear that his Civ.R. 60(B) motion is, in
substance, a motion for reconsideration of the court of appeals’ decision to deny his
motion for default judgment. This circumstance does not provide good cause for
remand.
B. Motion for Default Judgment
{¶ 10} When Judge Beathard did not file an appellee brief, Davidson filed
a “motion for default judgment pursuant to App.R. 18(C)” with this court. We deny
the motion. The Supreme Court Rules of Practice—not the Rules of Appellate
Procedure—apply to appeals in this court. See S.Ct.Prac.R. 1.04; App.R. 1(A).
And in any event, neither this court’s rules of practice nor App.R. 18(C) provide
for a default judgment in the appellant’s favor as a consequence of an appellee’s
failure to file a brief. Rather, the court may accept the appellant’s statement of facts
and issues as correct and reverse the judgment below if the appellant’s brief
reasonably appears to sustain reversal. S.Ct.Prac.R. 16.07(B); App.R. 18(C). Even
if we were to accept Davidson’s statement of facts and issues as correct, his brief
does not provide a basis for reversal of the court of appeals’ judgment.
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January Term, 2021
C. Motion for Judicial Notice
{¶ 11} Davidson asks this court to take judicial notice of the alleged fact
that Judge Beathard intentionally withheld a copy of the trial transcript from him
for three years, in violation of Davidson’s constitutional rights. We deny
Davidson’s motion.
{¶ 12} “A reviewing court generally may not add matter to the record before
it and then decide the appeal on the basis of the new matter.” State ex rel. Harris
v. Turner, 160 Ohio St.3d 506, 2020-Ohio-2901, 159 N.E.3d 1121, ¶ 16. Moreover,
Davidson is asking this court to take judicial notice of legal conclusions and facts
that are subject to reasonable dispute, which is improper. See id. at ¶ 17; see also
Evid.R. 201(B).
D. The Court of Appeals Properly Dismissed the Action
{¶ 13} To be entitled to a writ of mandamus, Davidson had to establish (1)
a clear legal right to a free copy of his trial transcript, (2) a clear legal duty on the
part of Judge Beathard to provide it, and (3) the lack of an adequate remedy in the
ordinary course of the law. State ex rel. Love v. O’Donnell, 150 Ohio St.3d 378,
2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. Because Judge Beathard performed the act
that Davidson requested in this action—providing him with a free copy of the trial
transcript—the court of appeals correctly dismissed this action as moot. A writ of
mandamus will not issue to compel an act that has already been performed. State
ex rel. Scruggs v. Sadler, 102 Ohio St.3d 160, 2004-Ohio-2054, 807 N.E.2d 357,
¶ 5.
{¶ 14} Davidson argues, however, that the court of appeals should not have
dismissed his action but should have instead granted his motion for default
judgment and ordered a new trial. He contends that the three-year delay in
providing him with a copy of his trial transcript warrants such relief. But even if a
writ of mandamus were the proper vehicle for obtaining a new trial, Davidson’s
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SUPREME COURT OF OHIO
argument is without merit because there is no basis for the court of appeals to enter
a default judgment.
{¶ 15} A motion for default judgment in a mandamus action is governed by
Civ.R. 55. State ex rel. Spirko v. Judges of the Court of Appeals, Third Appellate
Dist., 27 Ohio St.3d 13, 15, 501 N.E.2d 625 (1986). A default judgment is
appropriate only “against a defendant who has failed to timely plead in response to
an affirmative pleading.” Ohio Valley Radiology Assocs. v. Ohio Valley Hosp.
Assn., 28 Ohio St.3d 118, 121, 502 N.E.2d 599 (1986); see also Civ.R. 55(A) (a
party may apply for judgment by default “[w]hen a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise defend” [emphasis
added]). In this case, there was no default because Judge Beathard timely
responded to Davidson’s mandamus petition in the court of appeals.
III. Conclusion
{¶ 16} The court of appeals properly dismissed this action as moot. We
therefore affirm the judgment of the Twelfth District Court of Appeals and deny
Davidson’s motions filed with this court.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Richard A. Davidson, pro se.
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