[Cite as Pearson v. Branstool, 2013-Ohio-3885.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

ROBERT PEARSON                                       JUDGES:
                                                     Hon. William B. Hoffman, P.J.
        Relator                                      Hon. Sheila G. Farmer, J.
                                                     Hon. Patricia A. Delaney, J.
-vs-
                                                     Case No. 13-CA-46
JUDGE W. DAVID BRANSTOOL

        Respondent                                   OPINION




CHARACTER OF PROCEEDING:                          Writ for Mandamus/Procedendo



JUDGMENT:                                         Dismissed


DATE OF JUDGMENT ENTRY:                           September 9, 2013


APPEARANCES:


For Relator                                       For Respondent

ROBERT PEARSON, PRO SE                            MARK A. ZANGHI
Marion Correctional Institution                   Assistant Prosecuting Attorney
#547-179                                          20 South Second Street, 4th Floor
P.O. Box 57                                       Newark, Ohio 43055
Marion, Ohio 43301
Licking County, Case No. 13-CA-46                                                         2

Hoffman, P.J.


       {¶1}      Relator Robert Pearson has filed a “Complaint/Petition for Mandamus

and/or Writ of Procedendo under the Jurisdiction of Article IV, Section 3 of the Ohio

Constitution.”     Relator requests Respondent be ordered to rule on a motion filed by

Relator on April 28, 2011. Respondent has filed a motion to dismiss arguing the relief

sought has already been obtained and arguing Relator has failed to meet the procedural

requirements for a writ of mandamus.

       {¶2}      To be entitled to the issuance of a writ of mandamus, the Relator must

demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on the

respondent's part to perform the act; and, (3) that there exists no plain and adequate

remedy in the ordinary course of law. State ex rel. Master v. Cleveland (1996), 75 Ohio

St.3d 23, 26-27, 661 N.E.2d 180; State ex rel. Harris v. Rhodes (1978), 5 Ohio St.2d 41,

324 N.E.2d 641, citing State ex rel. National City Bank v. Bd of Education (1977) 520

Ohio St.2d 81, 369 N.E.2d 1200.

       {¶3}      The Supreme Court has held, “Neither procedendo nor mandamus will

compel the performance of a duty that has already been performed. State ex rel. Grove

v. Nadel (1998), 84 Ohio St.3d 252, 253, 703 N.E.2d 304, 305.” State ex rel. Kreps v.

Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668.

       {¶4}      Respondent ruled on Relator’s April 28, 2011 motion on July 12, 2011.

Because the relief sought has already been rendered by the trial court, Relator has no

clear right to the relief prayed for, and the Respondent has no clear legal duty to

perform an act which it has already performed.       State ex rel. Lewis v. Boggins, 2007

WL 4395630 (Ohio App. 5 Dist.). Therefore, a writ of mandamus will not issue.
Licking County, Case No. 13-CA-46                                                        3


      {¶5}    To be entitled to a writ of procedendo, “a relator must establish a clear

legal right to require the 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.” Miley,

supra, at 65, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas

(1995), 72 Ohio St.3d 461, 462. The Supreme Court has noted, “The writ of procedendo

is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to

proceed to judgment. It does not in any case attempt to control the inferior court as to

what that judgment should be.” State ex rel. Davey v. Owen, 133 Ohio St. 96, *106, 12

N.E.2d 144, * *149 (1937).

       {¶6}   Because Respondent has issued a ruling on Relator’s motion, the request

for a writ of procedendo has become moot.

       {¶7}   For these reasons, Respondent’s Motion to Dismiss is granted.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

                                             ___________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             ___________________________________
                                             HON. SHEILA G. FARMER


                                             ___________________________________
                                             HON. PATRICIA A. DELANEY
Licking County, Case No. 13-CA-46                                              4


            IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


ROBERT PEARSON                          :
                                        :
       Relator                          :
                                        :
-vs-                                    :         JUDGMENT ENTRY
                                        :
JUDGE W. DAVID BRANSTOOL                :
                                        :
       Respondent                       :         Case No. 13-CA-46


       For the reasons stated in our accompanying Opinion, Respondent’s Motion to

Dismiss is granted. Costs to Relator.




                                        ___________________________________
                                        HON. WILLIAM B. HOFFMAN


                                        ___________________________________
                                        HON. SHEILA G. FARMER


                                        ___________________________________
                                        HON. PATRICIA A. DELANEY
