State ex rel. Carter v. Astrab

[Cite as State ex rel. Carter v. Astrab, 2011-Ohio-6301.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97072
STATE OF OHIO, EX REL.,
LAWRENCE CARTER
RELATOR
vs.
JUDGE MICHAEL ASTRAB, ET AL.
RESPONDENTS
JUDGMENT:
WRIT DENIED
Writ of Mandamus and/or Procedendo
Motion Nos. 446296, 446297 and 447691
Order No. 449808
RELEASED DATE: December 5, 2011
FOR RELATOR
Lawrence Carter, pro se
Inmate #453-994
Mansfield Correctional Inst.
P. O. Box 788
Mansfield, OH 44901
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
Justice Center, 9th Fl.
1200 Ontario Street
Cleveland, Ohio 44113
MELODY J. STEWART, P.J.:
{¶ 1} Relator, Lawrence Carter, is the defendant in State v. Carter, Cuyahoga Cty.
Court of Common Pleas Case Nos. CR-441174, 441175, 441176, 441177, 441178, 441179,
441180 and 441193, which are assigned to respondent judge, a member of respondent court of
common pleas. Carter avers that, although the court of common pleas waived all costs, fines
and fees, the clerk of the court of common pleas continued to attempt to collect costs. Carter
requests that this court issue writs of mandamus and/or procedendo compelling the clerk to
cease attempts to collect costs from Carter.
{¶ 2} Respondents have filed a motion for summary judgment. Carter has not
opposed the motion. Respondents argue that this action is moot. We agree. Respondent
judge has issued journal entries in the underlying cases finding that Carter is indigent and
waiving all costs as well as ordering the clerk of courts to remove all costs associated with
each case from its records.
{¶ 3} Respondents also correctly observe that Carter’s affidavit in support of this
action is not sufficient under Loc.App.R. 45(B)(1)(a), which requires that all complaints in
original actions “must be supported by an affidavit from the plaintiff or relator specifying the
details of the claim.” Carter avers: “The statements contained in paragraph [sic] 1 through
12 in the Complaint/ Petition for Writs of Mandamus and/or Procedendo are accurate
representations of the actual events in the relator’s criminal case[.]” Carter’s Affidavit, ¶2.
Carter’s conclusory averment does not specify the details of the claim. Rather, he merely
incorporates the complaint by reference. Compare Bandy v. Villanueva, Cuyahoga App. No.
96866, 2011-Ohio-4831 (“Bandy’s ‘Verification’ states, in part, that all the facts in this
petition are true and accurate to the best of my personal knowledge and belief.’” Id. ¶4).
The failure to comply with Loc.App.R. 45(B)(1)(a) provides an additional basis for denying
relief.
{¶ 4} Accordingly, respondents’ motion for summary judgment is granted. Relator
to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its
date of entry upon the journal. Civ.R. 58(B).
Writ denied.
MELODY J. STEWART, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., and
SEAN G. GALLAGHER, J.