[Cite as Foster v. Friedland, 2016-Ohio-7230.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104718



                                 NATHANIEL FOSTER

                                                               RELATOR

                                                  vs.

                       CAROLYN FRIEDLAND, JUDGE
                                                               RESPONDENT




                                           JUDGMENT:
                                           WRIT DENIED


                                           Writ of Mandamus
                                           Motion No. 498872
                                           Order No. 500097


        RELEASE DATE: October 4, 2016
FOR RELATOR

Nathaniel Foster, pro se
Inmate No. 369-398
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901


ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

        {¶1}   On July 11, 2016, the relator, Nathaniel Foster, commenced this mandamus

action against the respondent, Judge Carolyn Friedland, to compel the judge to issue a

ruling on his January 26, 2016 motion to vacate a void judgment that Foster filed in the

underlying case, State v. Foster, Cuyahoga

C.P. No. CR-98-370295-B.        On August 8, 2016, the respondent judge moved for

summary judgment on the grounds of mootness and procedural defects. Attached to the

dispositive motion is a copy of a certified, file-stamped

August 4, 2016 journal entry that denies the subject motion.         The respondent also

argues that relator’s complaint is defective because the caption does not include “State ex

rel.”   Foster never filed a response.   For the following reasons, this court grants the

judge’s motion for summary judgment.

        {¶2} First, the petition is defective because it is improperly captioned. Foster

styled this petition as “Nathaniel Foster v. Carolyn Friedland, Judge.” R.C. 2731.04

requires that an application for a writ of mandamus “must be by petition, in the name of

the state on the relation of the person applying.”      This failure to properly caption a

mandamus action is sufficient grounds for denying the writ and dismissing the petition.

Maloney v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226, 181 N.E.2d 270

(1962).
        {¶3} Moreover, the attached journal entry established that the judge fulfilled her

duty to decide the motion and that Foster received his requested relief, a ruling. 1

Therefore, this mandamus action is moot.

        {¶4} Accordingly, this court grants the judge’s motion for summary judgment

and denies the application for a writ of mandamus. Respondent to pay costs; costs

waived. This court directs the clerk of courts to serve all parties notice of this judgment

and its date of entry upon the journal as required by Civ.R. 58(B).

        {¶5} Writ denied.




SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR




        1The  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).
