State ex rel. Lowe v. Berens

[Cite as State ex rel. Lowe v. Berens, 2019-Ohio-4036.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DENNIS RAY LOWE JUDGES:
Hon. W. Scott Gwin, P.J
Relator Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 19-CA-30
JUDGE RICHARD E. BERENS
Respondent O P I N IO N
CHARACTER OF PROCEEDINGS: Writ of Procedendo
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: September 30, 2019
APPEARANCES:
For Relator For Respondent
DENNIS RAY LOWE JOSHUA S. HORACEK
S.O.C.F. #441-903 Assistant Prosecuting Attorney
P.O. Box 45699 Fairfield County Prosecutor’s Office
Lucasville, Ohio 45699 239 West Main Street, Suite #101
Lancaster, Ohio 43130
Fairfield County, Case No. 19-CA-30 2
Hoffman, J.
{¶1} On July 3, 2019, Dennis Lowe filed a petition for writ of procedendo to
compel Judge Richard Berens to rule upon two motions he had pending before the trial
court in his underlying criminal case: Motion for Relief from Judgment and Motion to
Dismiss Case. The Fairfield County Prosecutor, on behalf of Judge Berens, has moved
to dismiss the writ. This Court grants the prosecutor’s motion.
{¶2} On July 8, 2019, Judge Berens issued a Judgment Entry overruling both of
Mr. Lowe’s motions. Because Judge Berens addressed Mr. Lowe’s pending motions that
are the subject of this writ, the writ is moot. “Neither mandamus nor procedendo will
compel the performance of a duty that has already been performed.” State ex rel. Nelson
v. Russo, 89 Ohio St. 3d 227, 228, 729 N.E.2d 1181 (2000), citing State ex rel. Grove v.
Nadel, 84 Ohio St. 3d 252, 253, 703 N.E.2d 304 (1998).
{¶3} Further, in Grove, the Ohio Supreme Court explained the court of appeals
appropriately took judicial notice Grove’s procedendo action was moot based on the
journalized entry submitted by Judge Nadel in his second motion to dismiss. Similarly,
here, the Fairfield County Prosecutor attached to his Motion to Dismiss a copy of the
Judgment Entry issued by Judge Berens that overruled Mr. Lowe’s two pending motions.
We may properly take judicial notice of this Judgment Entry which renders Mr. Lowe’s
writ of procedendo moot. Because Mr. Lowe’s writ of procedendo is moot we grant the
prosecutor’s motion to dismiss.
Fairfield County, Case No. 19-CA-30 3
{¶4} 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).
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur