State ex rel. Pankey v. D'Apolito

[Cite as State ex rel. Pankey v. D'Apolito, 2013-Ohio-2873.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE ex rel., )
BENJAMIN R. PANKEY, )
) CASE NO. 13 MA 73
RELATOR, )
)
- VS - ) OPINION
) AND
JUDGE LOU D'APOLITO, ) JUDGMENT ENTRY
MAHONING COUNTY )
COURT OF COMMON PLEAS, )
)
RESPONDENT. )
CHARACTER OF PROCEEDINGS: Complaint for Writ of Procedendo
JUDGMENT: Dismissed.
APPEARANCES:
For Relator: Benjamin R. Pankey, Pro-se
6476 Poplar Avenue
Hubbard, OH 44425
For Respondent: Attorney Paul J. Gains
Mahoning County Prosecutor
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, OH 44503
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: June 17, 2013
[Cite as State ex rel. Pankey v. D'Apolito, 2013-Ohio-2873.]
PER CURIAM:
{¶1} This is pro-se Relator, Benjamin R. Pankey's second attempt to obtain a writ
of procedendo. Pankey's first attempt resulted in this court's dismissal of said motion.
See Pankey v. Mahoning County Court of Common Pleas, 2013-Ohio-1617.
{¶2} Pursuant to that opinion, Pankey has now complied with Civ.R. 3(A) by filing
a 'complaint for a writ of procedendo' as opposed to his previously filed 'motion for a writ
in procedendo.' Further, Pankey named Judge Lou D'Apolito, Mahoning County Court of
Common Pleas as the Respondent as opposed to the previously named Mahoning
County Court of Common Pleas.
{¶3} While Pankey has attempted to correct the noted procedural problems from
his previous attempt to obtain a writ of procedendo, he apparently disregarded the
following language from this court:
"Relator alleges that his declaratory judgment was filed in April of 2012.
Relator acknowledges that there was a hearing in the civil action as recently
as December 20, 2012, and there was a prior hearing in October. He notes
that he has been regularly filing motions since the December hearing, each
of which the court must presumably act on before releasing any sort of final
judgment in the case, thus causing further delay in the case. He cites no
law or precedent, other than his own impatience, as to what constitutes
undue delay in rendering a final judgment in a declaratory action.
{¶4} Pankey has repeated this omission here. He has insufficiently plead facts
warranting the relief sought, including but not limited to any facts demonstrating undue
delay on the part of Respondent. Thus, Respondent's motion to dismiss pursuant to
Civ.R. 12(B)(6) and 12 (C) is granted. Moreover, res judicata bars Pankey from instituting
a successive writ action for the same relief. State ex rel. Clutter v. Wiseman, 127 Ohio
St.3d 214, 2010-Ohio-4987, 938 N.E.2d 328 (2010).
{¶5} Respondent's motion to dismiss is granted and Pankey's writ of procedendo
is dismissed.
-2-
{¶6} Costs taxed to Pankey. Final order. Clerk to serve notice on the parties as
provided by the Ohio Rules of Civil Procedure.
DeGenaro, P.J.
Donofrio, J.
Waite, J.