State ex rel. Lewis v. Summit Cty. Court of Common Pleas

[Cite as State ex rel. Lewis v. Summit Cty. Court of Common Pleas, 2019-Ohio-3874.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE EX REL. JOHNNL LEWIS C.A. No. 29390
Relator
v.
SUMMIT COUNTY COURT OF
COMMON PLEAS ORIGINAL ACTION IN
PROCEDENDO
Respondent
Dated: September 25, 2019
PER CURIAM.
{¶1} Relator, Johnnl Lewis, has petitioned this Court for a writ of procedendo to
compel Respondent, Summit County Court of Common Pleas to rule on a motion to
vacate he filed. The court of common pleas filed an answer and motion for summary
judgment, both of which demonstrated that the court had ruled on the motion. Mr. Lewis
did not respond. The answer, motion, and trial court docket demonstrate that the motion
has been ruled on. Therefore, Mr. Lewis’s claim is moot, and this Court dismisses his
complaint.
{¶2} To be entitled to a writ of procedendo, Mr. Lewis must establish a clear
legal right to require respondent to proceed, a clear legal duty on the part of respondent
to proceed, and a lack of an adequate remedy in the ordinary course of law. State ex rel.
C.A. No. 29390
Page 2 of 3
Miley v. Parrott, Judge, 77 Ohio St. 3d 64, 65 (1996). Procedendo is the appropriate
remedy when a court has refused to render a judgment or has unnecessarily delayed
proceeding to judgment. See, e.g., State ex rel. CNG Financial Corp. v. Nadel, 111 Ohio
St.3d 149, 2006-Ohio-5344, ¶ 20. It is well-settled that procedendo will not “compel the
performance of a duty that has already been performed.” State ex rel. Grove v. Nadel, 84
Ohio St. 3d 252, 253, 1998-Ohio-541.
{¶3} Mr. Lewis sought a writ of procedendo to order the court to rule on his
motion. This Court may consider evidence outside the complaint to determine that an
action is moot. State ex rel. Nelson v. Russo, 89 Ohio St. 3d 227, 228 (2000). According
to the answer and motion for summary judgment, along with a review of the trial court
docket, the trial court has ruled on Mr. Lewis’s motion. Accordingly, this matter is moot.
{¶4} Because Mr. Lewis’s claim is moot, his complaint is dismissed. Costs are
taxed to Mr. Lewis. 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).
THOMAS A. TEODOSIO
FOR THE COURT
CARR, J.
SCHAFER, J.
CONCUR.
C.A. No. 29390
Page 3 of 3
APPEARANCES:
JOHNNL LEWIS, Pro se, Relator.
SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS, Assistant
Prosecuting Attorney, for Respondent.