[Cite as State ex rel. Hillman v. Blunt, 2018-Ohio-3686.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Robert L. Hillman,                    :

                 Relator,                               :

v.                                                      :             No. 17AP-793

Franklin County Common Pleas Judge                      :      (REGULAR CALENDAR)
Laurel Beatty Blunt,
                                                        :
                 Respondent.
                                                        :


                                            D E C I S I O N

                                   Rendered on September 13, 2018


                 Robert L. Hillman, pro se.

                 Ron O'Brien, Prosecuting Attorney, and Amy L. Hiers, for
                 respondent.

                                     IN PROCEDENDO
                            ON RESPONDENT'S MOTION TO DISMISS

HORTON, J.
        {¶ 1} Relator, Robert L. Hillman, filed a complaint seeking a writ of procedendo
ordering respondent, the Honorable Laurel Beatty Blunt of the Franklin County Court of
Common Pleas, to rule a on motion filed in that court on June 9, 2017. Respondent filed a
motion for leave to file a motion to dismiss instanter and an accompanying motion to
dismiss, citing an April 11, 2018 entry ruling on relator's motion.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate. The magistrate has rendered a decision and
recommendation that includes findings of fact and conclusions of law, which is appended
to this decision. Because respondent ruled on the motion in the Franklin County Court of
No. 17AP-793                                                                              2

Common Pleas, the magistrate concluded that the matter that prompted relator to file his
complaint is now moot. Thus, the magistrate recommends sustaining respondent's motion
to dismiss and dismissing relator's complaint.
       {¶ 3} No party has filed objections to the magistrate's decision. Pursuant to
Civ.R. 53(D)(4)(c), "[i]f no timely objections are filed, the court may adopt a magistrate's
decision, unless it determines that there is an error of law or other defect evident on the
face of the magistrate's decision." Finding no error of law or defect in the magistrate's
decision, we adopt it in its entirety. Accordingly, respondent's motions are sustained and
relator's complaint is dismissed.
                                                 Motions sustained; complaint dismissed.
                           TYACK and DORRIAN, JJ., concur.
                                    _________________
No. 17AP-793                                                                               3

                                   APPENDIX

                           IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Robert L. Hillman,          :

               Relator,                       :

v.                                            :                    No. 17AP-793

Franklin County Common Pleas Judge            :               (REGULAR CALENDAR)
Laurel Beatty Blunt,
                                              :
               Respondent.
                                              :



                           MAGISTRATE'S DECISION

                                Rendered on June 7, 2018



               Robert L. Hillman, pro se.

               Ron O'Brien, Prosecuting Attorney, and Amy L. Hiers, for
               respondent.


                                   IN PROCEDENDO
                          ON RESPONDENT'S MOTION TO DISMISS

       {¶ 4} Relator, Robert L. Hillman, has filed this original action requesting this court
issue a writ of procedendo ordering respondent, the Honorable Laurel Beatty Blunt, judge
of the Franklin County Court of Common Pleas, to rule on his June 9, 2017 motion.
Findings of Fact:
       {¶ 5} 1. Relator is an inmate currently incarcerated at Chillicothe Correctional
Institution.
       {¶ 6} 2. On November 13, 2017, relator filed this procedendo action.
No. 17AP-793                                                                                  4

       {¶ 7} 3. On April 16, 2018, respondent sought leave to file a motion to dismiss
instanter, which was granted.
       {¶ 8} 4. Attached to respondent's motion to dismiss is the trial court's entry
denying relator's motion filed June 9, 2017. That entry was filed in the common pleas court
on April 11, 2018.
       {¶ 9} 5. On April 23, 2018, relator filed a memorandum in opposition asserting
that the trial court judge lied in the entry.
       {¶ 10} 6. The matter is currently before the magistrate on respondent's motion to
dismiss and relator's memorandum contra.
Conclusions of Law:
       {¶ 11} For the reasons that follow, it is this magistrate's decision this court should
grant respondent's motion and dismiss relator's procedendo action.
       {¶ 12} 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.
       {¶ 13} 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).
       {¶ 14} 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
be. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462
(1995).
       {¶ 15} A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint, the
court must take all the material allegations as admitted and construe all reasonable
inferences in favor of the nonmoving party. Id.
No. 17AP-793                                                                                  5

       {¶ 16} In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted, it must appear beyond doubt from the complaint that relator
can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants
Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is not subject
to dismissal under Civ.R. 12(B)(6) if the complaint alleges the existence of a legal duty by
the respondent and the lack of an adequate remedy at law for relator with sufficient
particularity to put the respondent on notice of the substance of the claim being asserted
against it, and it appears that relator might prove some set of facts entitling him to relief.
State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94 (1995).
For the following reasons, respondent's motion should be granted and relator's complaint
should be dismissed.
       {¶ 17} While courts generally only consider content in the pleadings when
considering a motion to dismiss, courts can take judicial notice of appropriate matters when
determining a Civ.R. 12(B)(6) motion without converting it to a motion for summary
judgment.
       {¶ 18} In the present case, respondent has included the entry of the trial court
denying relator's June 9, 2017 motion. As such, regardless of the fact that relator asserts
the trial court judge is lying, respondent has now performed the act which relator sought to
compel by filing this procedendo action and the matter is now moot. It is this magistrate's
decision that this court should grant respondent's motion and dismiss relator's case.
However, inasmuch as respondent did not rule on relator's motion until after the filing of
this procedendo action, it is this magistrate's decision that court costs should be waived.


                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA


                              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).
