[Cite as State ex rel. Sevilla v. Cocroft, 2013-Ohio-5550.]

                                IN THE COURT OF APPEALS OF OHIO

                                     TENTH APPELLATE DISTRICT


State ex rel. Jesus Sevilla,                              :

                  Relator,                                :                     No. 13AP-617

v.                                                        :               (REGULAR CALENDAR)

Judge Kimberly Cocroft,                                   :

                  Respondent.                             :




                                           D E C I S I O N

                                     Rendered on December 17, 2013


                  Jesus Sevilla, pro se.

                  Ron O'Brien, Prosecuting                    Attorney,   and   Sean   T.
                  McCullough, for respondent.


                                              IN PROCEDENDO

McCORMAC, J.

         {¶ 1} Relator, Jesus Sevilla, commenced this original action requesting a writ of
procedendo ordering respondent, the Honorable Judge Kimberly Cocroft of the Franklin
County Court of Common Pleas, to rule on a motion submitted by relator on August 1,
2012.
         {¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53 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. The magistrate found that
respondent on July 22, 2013 ruled on the motion that is the subject of this action.
Accordingly, the magistrate recommended that this court dismiss relator's complaint. No
objections were filed to the magistrate's decision.
No. 13AP-617                                                                          2


      {¶ 3} Following independent review, pursuant to Civ.R. 53, we find the magistrate
has properly determined the pertinent facts and applied the salient law to them.
Therefore, we adopt the magistrate's decision as our own, including the findings of fact
and conclusions of law contained in it. In accordance with the magistrate's decision, we
grant respondent's motion for judgment on the pleadings and dismiss this action.
                                          Motion for judgment on the pleadings granted;
                                                                       action dismissed.

                           SADLER and DORRIAN, JJ., concur.

               McCORMAC, J., retired, formerly of the Tenth Appellate
               District, assigned to active duty under authority of the Ohio
               Constitution, Article IV, Section 6(C).


                            _______________________
[Cite as State ex rel. Sevilla v. Cocroft, 2013-Ohio-5550.]

                                                 APPENDIX

                                IN THE COURT OF APPEALS OF OHIO

                                     TENTH APPELLATE DISTRICT


State ex rel. Jesus Sevilla,                              :

                  Relator,                                :                     No. 13AP-617

v.                                                        :               (REGULAR CALENDAR)

Judge Kimberly Cocroft,                                   :

                  Respondent.                             :




                                MAGISTRATE'S DECISION

                                        Rendered on August 7, 2013


                  Jesus Sevilla, pro se.

                  Ron O'Brien, Prosecuting                    Attorney,   and   Sean   T.
                  McCullough, for respondent.


                                   IN PROCEDENDO
                      ON MOTION FOR JUDGMENT ON THE PLEADINGS

         {¶ 4} Relator, Jesus Sevilla, has filed this original action requesting that this court
issue a writ of procedendo ordering respondent the Honorable Judge Kimberly Cocroft,
judge of the Franklin County Court of Common Pleas, to rule on a motion for production
of evidence relator filed in his underlying common pleas court action on August 1, 2012.




Findings of Fact:
No. 13AP-617                                                                                 4


       {¶ 5} 1. Relator is an inmate currently incarcerated at Chillicothe Correctional
Institution.
       {¶ 6} 2. On July 17, 2013, relator filed the instant action seeking a writ of
procedendo to compel respondent to rule on a pending motion.
       {¶ 7} 3. On July 23, 2013, respondent filed her answer asserting that the matter
was now moot. Specifically, respondent asserted:
               Respondent admits that Relator filed a "Motion for
               Production of Evidence" on August 1, 2012 in the underlying
               case styled State v. Sevilla, Franklin C.P. No. 05CR-4630
               (August 24, 2006). Respondent further asserts that she ruled
               on Relator's above referenced motion, through its Entry,
               filed July 22, 2013, which is attached hereto as Exhibit A.
               Respondent denies the remaining averments.

(Emphasis sic.)

       {¶ 8} 4. Respondent attached to her answer the July 22, 2013 entry denying
relator's motion for production of evidence.
       {¶ 9} 5. The matter is currently before the magistrate for review.
Conclusions of Law:
       {¶ 10} For the reasons that follow, it is this magistrate's decision that this court
should grant respondent's motion.
       {¶ 11} 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.
       {¶ 12} 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).
       {¶ 13} Procedendo is an order from a court of superior jurisdiction to proceed to
judgment: it does not attempt to control the inferior court as to what the judgment should
No. 13AP-617                                                                              5


be. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461,
462 (1995).
       {¶ 14} When construing a motion for judgment on the pleadings pursuant to Civ.R.
12(C), this court must construe as true all material allegations in the complaint, together
with all reasonable inferences which can be drawn from those allegations. State ex rel.
Peterson v. Teodosio, 34 Ohio St.2d 161, 165 (1973). As a general rule, the determination
of a motion for judgment on the pleadings is restricted solely to the allegations in the
pleadings.    Id.   However, an exception exists which permits the consideration of
documents which are attached to and incorporated into the pleadings. Civ.R. 10(C) and
Business Data Sys., Inc. v. Figetakis, 9th Dist. No. 22783, 2006-Ohio-1036.
       {¶ 15} As noted in the findings of fact, respondent attached a copy of the entry
denying relator's motion for production of evidence.
       {¶ 16} It is well-established that a writ of procedendo will not issue to compel the
performance of a duty which has already been performed. State ex rel. Graham v.
Niemeyer, 106 Ohio St.3d 466, 2005-Ohio-5522. Inasmuch as respondent has ruled on
the motion, the matter is now moot.
       {¶ 17} Based on the forgoing, it is this magistrate's decision that this court should
grant respondent's motion for judgment on the pleadings and dismiss relator's complaint.


                                          /S/ MAGISTRATE
                                          STEPHANIE BISCA BROOKS




                              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).
