Mays v. Olivito

[Cite as Mays v. Olivito, 2012-Ohio-5467.]
STATE OF OHIO, CARROLL COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
PAUL K. MAYS, )
)
RELATOR, )
)
V. ) CASE NO. 12-CA-880
)
JUDGE DOMINIC E. OLIVITO, ) OPINION
) AND
RESPONDENT. ) JUDGMENT ENTRY
CHARACTER OF PROCEEDINGS: Petition for Writ of Procedendo
JUDGMENT: Dismissed
APPEARANCES:
For Relator Paul K. Mays
6135 Canton Rd. #B
Carrollton, Ohio 44615
For Respondent Attorney Donald R. Burns, Jr.
Attorney Steven D. Barnett
Office of the Prosecuting Attorney
7 Eat Main Street
Carrollton, Ohio 44615
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
-2-
Dated: November 21, 2012
[Cite as Mays v. Olivito, 2012-Ohio-5467.]
PER CURIAM.
{¶1} Relator, Paul Mays, has filed a pro se petition for a writ of procedendo
asking this court to compel respondent, Carroll County Common Pleas Court Judge
Dominick Olivito, to approve a statement of evidence under App.R. 9 to support his
appeal of a case in which a civil stalking protection order had been issued against
him. In response, counsel for Judge Olivito has filed a motion to dismiss the petition.
{¶2} On March 15, 2011, Judge Olivito issued an ex parte civil stalking
protection order against Mays under R.C. 2903.214 and set a hearing for March 29,
2011. McKnight v. Mays, Carroll C.P. No. 2011DRH26692 (Mar. 15, 2011). Mays
was personally served with the action and given notice of the hearing. On the date
set for the hearing, May executed a written waiver of his right to a full hearing on the
petition. Judge Olivito issued the protection order on March 30, 2011, effective until
September 1, 2011.
{¶3} Thereafter, Mays filed separate motions to dismiss and vacate the
protection order, both of which Judge Olivito overruled. Mays then filed a notice of
“intent to” appeal on July 21, 2011, and notice of appeal on August 4, 2011, both well
after the expiration of the 30 days in which he had to perfect his appeal of the March
30, 2011 protection order. App.R. 4(A). The appeal was assigned case number 11
CA 876.
{¶4} Following the filing of his notice of appeal, the docket reflects that the
court reporter certified that there was no transcript for March 29, 2011, indicating that
the case had been settled by “consent” agreement.
{¶5} On February 28, 2012, Mays filed in the trial court (presided over by
Judge Olivito) a statement of proceedings in lieu of transcript pursuant to App.R. 9.
According to his petition for a writ of procedendo, Judge Olivito has yet to approve or
otherwise rule upon his statement of proceedings.
{¶6} A writ of procedendo is appropriate when “a court has either refused to
render a judgment or has unnecessarily delayed proceeding to judgment.” State ex
rel. Weiss v. Hoover (1999), 84 Ohio St. 3d 530, 532, 705 N.E.2d 1227. The criteria
for relief in procedendo are well-established. The relator must demonstrate: (1) a
clear legal right to proceed in the underlying matter; and (2) the lack of an adequate
-2-
remedy in the ordinary course of the law. State ex rel. Charvat v. Frye, 114 Ohio
St.3d 76, 868 N.E.2d 270, 2007-Ohio-2882, ¶13.
{¶7} App.R. 9 provides that appellant must submit a transcript of the trial
court proceedings they deem necessary to the appellate court. If no transcript is
available, App.R. 9(C) and (D) provide alternatives for the appellant. In this case,
Mays attempted to avail himself of App.R. 9(C) which addresses the situation where
no transcript or recording is available:
If no recording of the proceedings was made, if a transcript is
unavailable, or if a recording was made but is no longer available for
transcription, the appellant may prepare a statement of the evidence or
proceedings from the best available means, including the appellant’s
recollection. The statement shall be served on the appellee no later
than twenty days prior to the time for transmission of the record
pursuant to App.R. 10 and the appellee may serve on the appellant
objections or propose amendments to the statement within ten days
after service of the appellant's statement; these time periods may be
extended by the court of appeals for good cause. The statement and
any objections or proposed amendments shall be forthwith submitted to
the trial court for settlement and approval. The trial court shall act prior
to the time for transmission of the record pursuant to App. R. 10, and,
as settled and approved, the statement shall be included by the clerk of
the trial court in the record on appeal.
(Emphasis added.)
{¶8} Here the record does not reflect that Mays served his proposed
statement of the evidence on appellee as required by App.R. 9(C). Such an attempt
to evade the directives and intent of the rule by failing to serve the statement on
appellee deprives the statement of any validity under App.R. 9. Gravill v. Gravill, 8th
Dist. No. 43070, 1981 WL 4966 *3. (May 21, 1981). Additionally, a reviewing court
must presume that a trial court did not approve the statement of evidence if the trial
-3-
court fails to sign the statement. King v. Plaster, 71 Ohio App. 3d 360, 362, 594
N.E.2d 34 (3d Dist.1991). Consequently, due to his failure to comply with App.R. 9,
Mays has failed to demonstrate a clear legal right to proceed in the underlying matter
and his petition is dismissed.
{¶9} Costs taxed against Mays. Final order. Clerk to serve notice as
provided by the Civil Rules.
Donofrio, J. concurs.
Waite, P.J. concurs.
DeGenaro, J. concurs.