[Cite as State ex rel. Henderson v. Sweeney, 2013-Ohio-2919.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99605



                            STATE OF OHIO, EX REL.
                              TROY HENDERSON

                                                                RELATOR

                                                     vs.

                          KRISTIN SWEENEY, JUDGE
                                                                RESPONDENT




                                     JUDGMENT:
                                 COMPLAINT DISMISSED


                                         Writ of Mandamus
                                   Motion Nos. 463882 and 463912
                                         Order No. 465637

RELEASE DATE: July 1, 2013
FOR RELATOR

Troy Henderson, pro se
11040 Clark Road
Chardon, Ohio 44024


ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Nora E. Graham
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} On March 5, 2013, the relator, Troy Henderson, commenced this mandamus

action against the respondent, Judge Kristin Sweeney, to compel the judge to rule on

Henderson’s “motion to dismiss all orders due to lack of service and on constitutional

grounds” that Henderson filed on December 16, 2011, in the underlying case, In re J.H.,

Cuyahoga C.P. Juvenile Court Division No. 11705281. Henderson is trying to vacate a

support order against him. On April 5, 2013, the respondent judge moved to dismiss on

the grounds of mootness. On April 8, 2013, Henderson moved for summary judgment,

requesting that this court grant his motion to dismiss the support order in the underlying

case. On April 26, 2013, the respondent filed her brief in opposition to Henderson’s

motion for summary judgment, and Henderson filed his brief in opposition to the judge’s

motion to dismiss, as well as a motion to strike the judge’s dispositive motion.

Subsequently, the parties filed multiple briefs continuing their arguments.           After

reviewing the filings, this court concludes that this matter is ripe for resolution, denies

Henderson’s motion for summary judgment, and grants the respondent judge’s motion to

dismiss.

       {¶2} The requisites for mandamus are well established: (1) the relator must have

a clear legal right to the requested relief, (2) the respondent must have a clear legal duty

to perform the requested relief, and (3) there must be no adequate remedy at law.

Additionally, although mandamus may be used to compel a court to exercise judgment or
to discharge a function, it may not control judicial discretion, even if that discretion is

grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987).

Furthermore, mandamus is not a substitute for appeal.           State ex rel. Keenan v.

Calabrese, 69 Ohio St.3d 176, 631 N.E.2d 119 (1994); State ex rel. Daggett v. Gessaman,

34 Ohio St.2d 55, 295 N.E.2d 659 (1973); and State ex rel. Pressley v. Indus. Comm. of

Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph three of the syllabus. Thus,

mandamus does not lie to correct errors and procedural irregularities in the course of a

case.   State ex rel. Jerninghan v. Gaughan, 8th Dist. No. 67787, 1994 Ohio App. LEXIS

6227 (Sept. 26, 1994).   Furthermore, if the relator had an adequate remedy, regardless of

whether it was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78

Ohio St.3d 45, 676 N.E.2d 108 (1997); State ex rel. Boardwalk Shopping Ctr., Inc. v.

Court of Appeals for Cuyahoga Cty., 56 Ohio St.3d 33, 564 N.E.2d 86 (1990). Moreover,

mandamus is an extraordinary remedy that is to be exercised with caution and only when

the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser,

50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer v. Ohio Turnpike Comm.,

159 Ohio St. 581, 113 N.E.2d 14 (1953); and State ex rel. Connole v. Cleveland Bd. of

Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist.1993).

        {¶3}   In the underlying case, a complaint was filed against Henderson in March

2011. Henderson maintains and the docket indicates that the complaint was sent to a

wrong address in Bedford, Ohio, instead of the correct address in Chardon.      In October

2011, the juvenile court issued a support order, which Henderson maintains is too much.
In assessing the amount of child support, the magistrate accepted the mother’s testimony

that Henderson earned between $60,000 to $100,000 per year, even though there was no

evidence of Henderson’s current business address.        Again, the docket indicates that

service of the magistrate’s order was sent to Bedford, even though the magistrate’s

decision listed Henderson’s Chardon address. He responded on December 16, 2011, by

filing the subject motion to stay proceedings and to dismiss the support order for lack of

service.     By a January 25, 2012 order, journalized on February 6, 2012, the respondent

judge referred the subject motion to a visiting judge. (exhibit No. 4 to the complaint.)

On March 20, 2012, the visiting judge conducted a hearing at which Henderson was not

present. 1    In a March 21, 2012 journal entry, the visiting judge dismissed without

prejudice the mother’s motion for past support and noted Henderson’s lack of

involvement with his child. Finally, the visiting judge ruled “that all pending motions

are dismissed for want of prosecution.”

       {¶4} This March 21, 2012 order resolved the subject motion. “[A]ll pending

motions” necessarily included the subject motion, even if the visiting judge did not

explicitly rule on the subject motion.     Thus, although Henderson may not find the

language satisfying, he has received his requested relief, a ruling on the subject motion.

This matter is moot.




       1The  docket to State v. Henderson, Cuyahoga C.P. No. CR-554594, shows that Henderson
had a criminal trial on March 22, 2012, at which he was found not guilty of the charges.
       {¶5} His remedy was an appeal of the ruling, which is the proper means for

addressing errors and irregularities in a proceeding.   He had an adequate remedy at law

that now further precludes a writ of mandamus.     Furthermore, Henderson may still have

remedies available in the trial court. He may file a motion to modify the child support,

nor is an authentic motion to vacate pursuant to Civ.R. 60(B) necessarily precluded.

       {¶6} Accordingly, this court grants the motion to dismiss and dismisses this

application for a writ of mandamus.     Relator to pay costs.   This court directs the clerk

of court to serve all parties notice of this judgment and its date of entry upon the journal

as required by Civ.R. 58(B).



_______________________________________
MARY J. BOYLE, PRESIDING JUDGE

TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR
