State ex rel. Grinnell v. Page

[Cite as State ex rel. Grinnell v. Page, 2022-Ohio-3297.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Timothy Grinnell, :
Relator, : No. 21AP-534
v. : (REGULAR CALENDAR)
Judge Jaiza Page, :
Respondent. :
DECISION
Rendered on September 20, 2022
On brief: Timothy Grinnell, pro se.
On brief: G. Gary Tyack, Prosecuting Attorney, and
Thomas W. Ellis, for respondent.
IN PROCEDENDO ON
RESPONDENT'S MOTION TO DISMISS
JAMISON, J.
{¶ 1} Relator, Timothy Grinnell, filed this original action seeking a writ of
procedendo ordering respondent, Franklin County Common Pleas Judge Jaiza Page, to
issue a ruling on relator's October 2, 2020, motion to vacate the judgment of conviction for
want of jurisdiction ("motion to vacate"). Respondent filed a motion to dismiss pursuant
to Civ.R. 12(B)(6).
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53(C)
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
court grant respondent’s motion to dismiss in light of respondent's January 22, 2021, entry
denying relator's October 2, 2020, motion to vacate. Relator has not objected to the
decision.
No. 21AP-534 2
{¶ 3} Finding no error of law or other defect on the face of the magistrate’s decision,
this court adopts the magistrate’s decision as our own, including the findings of fact and
conclusions of law. In accordance with the magistrate’s decision, we dismiss relator’s
complaint for a writ of procedendo.
Writ of procedendo dismissed.
LUPER SCHUSTER, P.J., and SADLER, J., concur.
_____________
No. 21AP-534 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Timothy Grinnell, :
Relator, :
v. : No. 21AP-534
Judge Jaiza Page, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on April 20, 2022
Timothy Grinnell, pro se.
G. Gary Tyack, Prosecuting Attorney, and Thomas W. Ellis,
for respondent.
IN PROCEDENDO ON
RESPONDENT'S MOTION TO DISMISS
{¶ 4} Relator, Timothy Grinnell, has filed this original action seeking a writ of
procedendo ordering respondent, Franklin County Common Pleas Judge Jaiza Page, to
issue a ruling on relator's October 2, 2020, motion to vacate the judgment of conviction for
want of jurisdiction ("motion to vacate"). Respondent has filed a motion to dismiss
pursuant to Civ.R. 12(B)(6).
No. 21AP-534 4
Findings of Fact:
{¶ 5} 1. Respondent is a public official serving as a judge in the Franklin County
Court of Common Pleas, Ohio.
{¶ 6} 2. Relator is a prisoner who was incarcerated at Madison Correctional
Institution in London, Ohio, at the time he filed this procedendo action.
{¶ 7} 3. On October 2, 2020, relator filed a motion to vacate in Franklin C.P. No.
94CR-6418, over which respondent presided.
{¶ 8} 4. On October 20, 2021, relator filed his complaint in procedendo with this
court, requesting that this court order respondent to issue a ruling on relator's October 2,
2020, motion to vacate.
{¶ 9} 5. On January 22, 2021, in case No. 94CR-6418, respondent filed an entry
denying relator's October 2, 2020, motion to vacate.
{¶ 10} 6. On November 15, 2021, in the present action, respondent filed a motion to
dismiss, pursuant to Civ.R. 12(B)(6), asserting relator's procedendo action is moot because
respondent has already ruled on relator's October 2, 2020, motion to vacate.
Conclusions of Law:
{¶ 11} For the reasons that follow, it is the magistrate's decision that this court grant
respondent's motion to dismiss relator's complaint for a writ of procedendo.
In order to be entitled to a writ of procedendo, a relator must establish a
clear legal right to require that court to proceed, a clear legal duty on the part of the court
to proceed, and the lack of an adequate remedy in the ordinary course of law. State ex rel.
Miley v. Parrott, 77 Ohio St.3d 64, 65 (1996). A writ of procedendo is appropriate when
a court has either refused to render a judgment or has unnecessarily delayed proceeding
to judgment. Id. An " 'inferior court's refusal or failure to timely dispose of a pending
action is the ill a writ of procedendo is designed to remedy.' " State ex rel. Dehler v. Sutula,
74 Ohio St.3d 33, 35 (1995), quoting State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d
104, 110 (1994).
{¶ 12} A motion to dismiss pursuant to Civ.R. 12(B)(6) tests the sufficiency of the
complaint. "In order for a court to dismiss a case pursuant to Civ.R. 12(B)(6) 'it must appear
No. 21AP-534 5
beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him
to recovery.' " T & M Machines, LLC v. Yost, 10th Dist. No. 19AP-124, 2020-Ohio-551, ¶ 10,
quoting O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975),
syllabus. In construing a complaint upon a Civ.R. 12(B)(6) motion, a court must presume
that all factual allegations in the complaint are true and make all reasonable inferences in
the plaintiff's favor. LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-
3608, ¶ 14.
{¶ 13} The magistrate may take judicial notice of the pleadings and orders in related
cases when these are not subject to reasonable dispute, at least insofar as they affect the
present original action. State ex rel. Nyamusevya v. Hawkins, 10th Dist. No. 19AP-199,
2020-Ohio-2690, ¶ 33, citing Evid.R. 201(B); State ex rel. Ohio Republican Party v.
Fitzgerald, 145 Ohio St.3d 92, 2015-Ohio-5056, ¶ 18; and State ex rel. Womack v. Marsh,
128 Ohio St.3d 303, 2011-Ohio-229, ¶ 8. Furthermore, a court may take judicial notice of
pleadings that are readily accessible on the internet. See Draughon v. Jenkins, 4th Dist. No.
16CA3528, 2016-Ohio-5364, ¶ 26, citing State ex rel. Everhart v. McIntosh, 115 Ohio St.3d
195, 2007-Ohio-4798, ¶ 8, 10 (a court may take judicial notice of appropriate matters,
including judicial opinions and public records accessible from the internet, in determining
a Civ.R. 12(B)(6) motion); and Giannelli, 1 Baldwin's Ohio Practice Evidence, Section 201.6
(3d Ed.2015) (noting that the rule generally precluding a court from taking judicial notice
of other cases has been relaxed if the record is accessible on the internet).
{¶ 14} Procedendo will not lie to compel an act that has already been performed.
State ex rel. Lester v. Pepple, 130 Ohio St.3d 353, 2011-Ohio-5756, ¶ 1; State ex rel. Kreps v.
Christiansen, 88 Ohio St.3d 313, 318 (2000), citing State ex rel. Grove v. Nadel, 84 Ohio
St.3d 252-53 (1998).
{¶ 15} In the present matter, respondent's January 22, 2021, entry denied relator's
October 2, 2020, motion to vacate. Thus, respondent has performed the act that relator
sought to compel, i.e., ruling on relator's October 2, 2020, motion to vacate. Therefore,
procedendo will not lie under these circumstances.
{¶ 16} The magistrate also notes that relator contends that because the Franklin
County Clerk of Courts failed to serve him with a copy of the January 22, 2021, judgment,
as required by Civ.R. 58(B), the trial court never actually ruled upon the motion to vacate.
No. 21AP-534 6
However, even if the clerk of courts did not comply with the service requirements in Civ.R.
58(B), the rule specifically indicates that "[t]he failure of the clerk to serve notice does not
affect the validity of the judgment." Therefore, this argument is without merit.
{¶ 17} Accordingly, the magistrate recommends that this court grant respondent's
motion to dismiss relator's complaint for a writ of procedendo.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).
No. 21AP-534 7