[Cite as Queer v. Henson, 2013-Ohio-4668.]


                              IN THE COURT OF APPEALS
                              FIFTH APPELLATE DISTRICT
                               RICHLAND COUNTY, OHIO


SAM QUEER                                    :   JUDGES:
                                             :
        Relator                              :
                                             :   Hon., Patricia A. Delaney P.J.
                                             :   Hon., W. Scott Gwin J
-vs-                                         :   Hon., William B. Hoffman J.
                                             :
JUDGE JAMES D. HENSON                        :   CASE NO. 13CA67
                                             :
        Respondent                           :
                                             :   OPINION


CHARACTER OF PROCEEDING:                         Petition for Writ of Procedendo


JUDGMENT:                                        DISMISSED


DATE OF JUDGMENT ENTRY:                          September 30, 2013



APPEARANCES:

For Relator – Pro se:                            For Respondent:

Sam Queer #632-894                               Jill M. Cochran
P.O. Box 57                                      Asst. Richland County Prosecutor
Marion, OH 43301                                 38 South Park Street, 2nd Floor
                                                 Mansfield, OH 44902
Richland County, Case No. 13CA67                                                  1

Delaney, J.,

         {¶1} Petitioner, Sam Queer, has filed a “Complaint/Petition for Writ of

Procedendo” asking this Court to issue an order requiring Respondent, Judge James

Henson, to rule on a “Motion to Dismiss Counsel” filed on April 25, 2013.

         {¶2} The Supreme Court has explained, “For a writ of procedendo, [a

petitioner] must show 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 the law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common

Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d 899 (1995). A writ of procedendo is proper

when a court has refused to enter judgment or has unnecessarily delayed proceeding to

judgment. State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180,

184, 652 N.E.2d 742 (1995).” State ex rel. Culgan v. Collier (2013), 135 Ohio St.3d

436, 437, 988 N.E.2d 564, 565.

         {¶3} The Culgan court went on to advise, “Sup.R. 40(A)(3) imposes on trial

courts a duty to rule on motions within 120 days. Although the Rules of

Superintendence do not provide litigants with a right to enforce Sup.R. 40, the rule does

guide this court in determining whether a trial court has unduly delayed ruling on a

motion for purposes of ruling on a request for an extraordinary writ. A court that takes

more than 120 days to rule on a motion risks unduly delaying the case and, as here,

risks our issuing writs of mandamus and/or procedendo to compel a ruling.” Id. at 438.
Richland County, Case No. 13CA67                                                   2

Delaney, J.,

         {¶4} In this case, the motion was not pending for more than 120 days prior to

the filing of this complaint. For this reason, we find procedendo is not appropriate under

the facts presented here.

         {¶5} Further, the Supreme Court has held that a judge’s performance of the

requested act makes the complaint in procedendo moot. State ex rel. Hazel v. Bender,

129 Ohio St.3d 496, 496, 954 N.E.2d 114, 115 (Ohio,2011).

         {¶6} Subsequent to the filing of the instant complaint, Respondent ruled on the

motion to dismiss counsel and has appointed new counsel for Relator. For this reason,

we dismiss the instant petition as moot.

         {¶7} Costs waived.



By: Delaney, P.J.
    Gwin, J. and
    Hoffman, J. concur

                                           ______________________________
                                           HON. PATRICIA A. DELANEY

                                           ______________________________
                                           HON. W. SCOTT GWIN

                                           ______________________________
                                           HON. WILLIAM B. HOFFMAN
                        IN THE COURT OF APPEALS
                        FIFTH APPELLATE DISTRICT
                         RICHLAND COUNTY, OHIO


SAM QUEER                              :
                                       :      CASE NO. 13CA67
       Relator                         :
                                       :
-vs-                                   :      JUDGMENT ENTRY
                                       :
JUDGE JAMES D. HENSON                  :
                                       :
       Respondent                      :


       For the reasons stated in our accompanying Memorandum-Opinion,

Petitioner’s Complaint for Writ of Procedendo is hereby dismissed. Costs

waived.




                                       ____________________________
                                       HON. PATRICIA. DELANEY


                                       ____________________________
                                       HON. W. SCOTT GWIN


                                       ____________________________
                                       HON. WILLIAM B. HOFFMAN
