[Cite as Albino v. Clerk of Courts, Stark Cty. Probate Court, 2012-Ohio-235.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


ANGEL L. ALBINO-ALBINO

        Relator

-vs-

CLERK OF COURTS, PROBATE COURT OF STARK COUNTY

        Respondent

JUDGES:
Hon. William B. Hoffman, P .J.
Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.


Case No. 2011 CA 00205


OPINION


CHARACTER OF PROCEEDING:                                Writ of Mandamus


JUDGMENT:                                               Dismissed


DATE OF JUDGMENT ENTRY:                                 January 23, 2012


APPEARANCES:

For Relator                                             For Respondent

ANGEL L. ALBINO-ALBINO                                  JOHN D. FERRERO
PRO SE                                                  PROSECUTING ATTORNEY
MANSFIELD CORRECTIONAL INST.                            AMY A. SABINO
Post Office Box 788                                     ASSISTANT PROSECUTOR
Mansfield, Ohio 44901                                   110 Central Plaza South, Suite 510
                                                        Canton, ohio 44702
Wise, J.

       {¶1}   Relator, Angel L. Albino-Albino, has filed a Petition for Writ of Mandamus

requesting a writ be issued which would require Respondent to accept an objection to a

petition for adoption for filing. Respondent, Judge Dixie Park, has filed a Motion to

Dismiss.

       {¶2}   Relator presented an objection to a petition for adoption to the Clerk of the

Probate Court. The objection was returned to Respondent with a letter indicating the

objection would not be filed without a filing fee. The letter also advised Respondent that

the filing fee would not be waived under any circumstances.

       {¶3}   Once the instant Petition was filed, Respondent through counsel agreed to

allow Relator to file an objection without advancing the filing fee. Relator in turn did file

the objection with Respondent on October 20, 2011.

       {¶4}   For a writ of mandamus to issue, the relator must have a clear legal right

to the relief prayed for, the respondents must be under a clear legal duty to perform the

requested act, and relator must have no plain and adequate remedy in the ordinary

course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,

451 N.E.2d 225.

       {¶5}   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.
      {¶6}     Because the relief requested in the Petition has been performed, we find

the Petition to be moot. For this reason, Respondent’s Motion to Dismiss is granted.

The request for the issuance of a writ of mandamus is denied.


By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.



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




ANGEL L. ALBINO-ALBINO                      :
                                            :
       Relator                              :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
CLERK OF COURTS, PROBATE                    :
COURT OF STARK COUNTY                       :
                                            :
       Respondent                           :         Case No. 2011 CA 00205




       For   the   reasons   stated   in   our   accompanying   Memorandum-Opinion,

Respondent’s Motion to Dismiss is granted. The request for the issuance of a writ of

mandamus is denied.

       Court costs are waived.




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                                                                JUDGES
