State ex rel. Henderson v. Sweeney

[Cite as State ex rel. Henderson v. Sweeney, 2013-Ohio-2919.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99605
STATE OF OHIO, EX REL.
TROY HENDERSON
RELATOR
vs.
KRISTIN SWEENEY, JUDGE
RESPONDENT
JUDGMENT:
COMPLAINT DISMISSED
Writ of Mandamus
Motion Nos. 463882 and 463912
Order No. 465637
RELEASE DATE: July 1, 2013
FOR RELATOR
Troy Henderson, pro se
11040 Clark Road
Chardon, Ohio 44024
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Nora E. Graham
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} On March 5, 2013, the relator, Troy Henderson, commenced this mandamus
action against the respondent, Judge Kristin Sweeney, to compel the judge to rule on
Henderson’s “motion to dismiss all orders due to lack of service and on constitutional
grounds” that Henderson filed on December 16, 2011, in the underlying case, In re J.H.,
Cuyahoga C.P. Juvenile Court Division No. 11705281. Henderson is trying to vacate a
support order against him. On April 5, 2013, the respondent judge moved to dismiss on
the grounds of mootness. On April 8, 2013, Henderson moved for summary judgment,
requesting that this court grant his motion to dismiss the support order in the underlying
case. On April 26, 2013, the respondent filed her brief in opposition to Henderson’s
motion for summary judgment, and Henderson filed his brief in opposition to the judge’s
motion to dismiss, as well as a motion to strike the judge’s dispositive motion.
Subsequently, the parties filed multiple briefs continuing their arguments. After
reviewing the filings, this court concludes that this matter is ripe for resolution, denies
Henderson’s motion for summary judgment, and grants the respondent judge’s motion to
dismiss.
{¶2} The requisites for mandamus are well established: (1) the relator must have
a clear legal right to the requested relief, (2) the respondent must have a clear legal duty
to perform the requested relief, and (3) there must be no adequate remedy at law.
Additionally, although mandamus may be used to compel a court to exercise judgment or
to discharge a function, it may not control judicial discretion, even if that discretion is
grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St. 3d 118, 515 N.E.2d 914 (1987).
Furthermore, mandamus is not a substitute for appeal. State ex rel. Keenan v.
Calabrese, 69 Ohio St. 3d 176, 631 N.E.2d 119 (1994); State ex rel. Daggett v. Gessaman,
34 Ohio St. 2d 55, 295 N.E.2d 659 (1973); and State ex rel. Pressley v. Indus. Comm. of
Ohio, 11 Ohio St. 2d 141, 228 N.E.2d 631 (1967), paragraph three of the syllabus. Thus,
mandamus does not lie to correct errors and procedural irregularities in the course of a
case. State ex rel. Jerninghan v. Gaughan, 8th Dist. No. 67787, 1994 Ohio App. LEXIS
6227 (Sept. 26, 1994). Furthermore, if the relator had an adequate remedy, regardless of
whether it was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78
Ohio St. 3d 45, 676 N.E.2d 108 (1997); State ex rel. Boardwalk Shopping Ctr., Inc. v.
Court of Appeals for Cuyahoga Cty., 56 Ohio St. 3d 33, 564 N.E.2d 86 (1990). Moreover,
mandamus is an extraordinary remedy that is to be exercised with caution and only when
the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser,
50 Ohio St. 2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer v. Ohio Turnpike Comm.,
159 Ohio St. 581, 113 N.E.2d 14 (1953); and State ex rel. Connole v. Cleveland Bd. of
Edn., 87 Ohio App. 3d 43, 621 N.E.2d 850 (8th Dist.1993).
{¶3} In the underlying case, a complaint was filed against Henderson in March
2011. Henderson maintains and the docket indicates that the complaint was sent to a
wrong address in Bedford, Ohio, instead of the correct address in Chardon. In October
2011, the juvenile court issued a support order, which Henderson maintains is too much.
In assessing the amount of child support, the magistrate accepted the mother’s testimony
that Henderson earned between $60,000 to $100,000 per year, even though there was no
evidence of Henderson’s current business address. Again, the docket indicates that
service of the magistrate’s order was sent to Bedford, even though the magistrate’s
decision listed Henderson’s Chardon address. He responded on December 16, 2011, by
filing the subject motion to stay proceedings and to dismiss the support order for lack of
service. By a January 25, 2012 order, journalized on February 6, 2012, the respondent
judge referred the subject motion to a visiting judge. (exhibit No. 4 to the complaint.)
On March 20, 2012, the visiting judge conducted a hearing at which Henderson was not
present. 1 In a March 21, 2012 journal entry, the visiting judge dismissed without
prejudice the mother’s motion for past support and noted Henderson’s lack of
involvement with his child. Finally, the visiting judge ruled “that all pending motions
are dismissed for want of prosecution.”
{¶4} This March 21, 2012 order resolved the subject motion. “[A]ll pending
motions” necessarily included the subject motion, even if the visiting judge did not
explicitly rule on the subject motion. Thus, although Henderson may not find the
language satisfying, he has received his requested relief, a ruling on the subject motion.
This matter is moot.
1The docket to State v. Henderson, Cuyahoga C.P. No. CR-554594, shows that Henderson
had a criminal trial on March 22, 2012, at which he was found not guilty of the charges.
{¶5} His remedy was an appeal of the ruling, which is the proper means for
addressing errors and irregularities in a proceeding. He had an adequate remedy at law
that now further precludes a writ of mandamus. Furthermore, Henderson may still have
remedies available in the trial court. He may file a motion to modify the child support,
nor is an authentic motion to vacate pursuant to Civ.R. 60(B) necessarily precluded.
{¶6} Accordingly, this court grants the motion to dismiss and dismisses this
application for a writ of mandamus. Relator to pay costs. This court directs the clerk
of court to serve all parties notice of this judgment and its date of entry upon the journal
as required by Civ.R. 58(B).
_______________________________________
MARY J. BOYLE, PRESIDING JUDGE
TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR