[Cite as State ex rel. v. McIntosh, 2018-Ohio-3464.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel.                                      :
LaRue A. Monford,
                                                       :
                 Relator,                                           No. 18AP-241
                                                       :
v.                                                            (REGULAR CALENDAR)
                                                       :
Stephen L. McIntosh, Judge,
                                                       :
                 Respondent.
                                                       :


                                            D E C I S I O N

                                      Rendered on August 28, 2018


                 On brief: LaRue A. Monford, pro se.

                 On brief: Ron O'Brien, Prosecuting Attorney, and Nick A.
                 Soulas, Jr., for respondent.

                                 IN PROCEDENDO
                      ON RESPONDENT'S MOTION TO DISMISS AND
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, J.
        {¶ 1} Relator, LaRue A. Monford, filed this original action in procedendo seeking
an order compelling respondent, Judge Stephen L. McIntosh of the Franklin County Court
of Common Pleas, to rule on a motion filed by Monford on February 15, 2017 and another
motion filed by Monford on March 20, 2017.
        {¶ 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 who issued a decision, including findings of fact
and conclusions of law, which is appended hereto. The magistrate recommends this court
grant Judge McIntosh's motion to dismiss the complaint for failure to state a claim upon
which relief can be granted pursuant to Civ.R. 12(B)(6). Specifically, the magistrate noted
that a writ of procedendo will not issue to compel the performance of a duty that has already
No. 18AP-241                                                                                  2

been performed. State ex rel. Morgan v. Fais, 146 Ohio St.3d 428, 2016-Ohio-1564, ¶ 4.
Because the April 25, 2017 entry appended to Judge McIntosh's motion to dismiss
demonstrated that Judge McIntosh had already ruled on Monford's two motions, the
magistrate concluded that Monford's action seeking a writ of procedendo has been
rendered moot.
       {¶ 3} Monford responded to the magistrate's decision with a document captioned
"Amended Complaint." We construe this document as objections to the magistrate's
decision. See, e.g., State ex rel. Kleinman v. Indus. Comm., 10th Dist. No. 04AP-692, 2005-
Ohio-3098, ¶ 2 (construing an "application for reconsideration" as objections to the
magistrate's decision); Civ.R. 53(D)(3)(b). In his objections, Monford concedes that Judge
McIntosh has ruled on his motions through the April 25, 2017 entry. Nonetheless, Monford
disagrees with Judge McIntosh's rulings on his motions and argues procedendo should still
issue to compel Judge McIntosh to rule in Monford's favor.
       {¶ 4} "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. Miley v. Parrott, 77 Ohio St.3d 64, 67 (1996), citing State ex rel. Sherrills
v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462 (1995). Thus, regardless
of whether Monford agrees with the outcome of Judge McIntosh's rulings in the entry,
procedendo cannot issue because Judge McIntosh has already ruled on the motion. If
Monford disagrees with the trial court's resolution of his motions, he can challenge those
decisions by direct appeal. State ex rel. Hillman v. O'Donnell, 10th Dist. No. 16AP-436,
2016-Ohio-8352, ¶ 4. For these reasons, we overrule Monford's objections.
       {¶ 5} After examination of the magistrate's decision, an independent review of the
record pursuant to Civ.R. 53, and due consideration to Monford's objections, we overrule
Monford's objections and adopt the magistrate's findings of fact and conclusions of law.
Accordingly, we grant Judge McIntosh's motion to dismiss the complaint.

                                                                       Objections overruled;
                                                                   motion to dismiss granted.

                           DORRIAN and HORTON, JJ., concur.
No. 18AP-241                                                                             3

                                       APPENDIX

                           IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

The State ex rel.                             :
LaRue A. Monford,
                                              :
               Relator,
                                              :
v.                                                                 No. 18AP-241
                                              :
Stephen L. McIntosh, Judge,                                   (REGULAR CALENDAR)
                                              :
               Respondent.
                                              :


                           MAGISTRATE'S DECISION

                                Rendered on May 15, 2018


               LaRue A. Monford, pro se.

               Ron O'Brien, Prosecuting Attorney, and Nick A. Soulas, Jr., for
               respondent.


                                   IN PROCEDENDO
                          ON RESPONDENT'S MOTION TO DISMISS

       {¶ 6} In this original action, relator, LaRue A. Monford, an inmate of the
Southeastern Correctional Institution ("SCI") requests a writ of procedendo ordering
respondent, the Honorable Stephen L. McIntosh, a judge of the Franklin County Court of
Common Pleas, to rule on a motion filed by relator on February 15, 2017 in the common
pleas court in Franklin C.P. No. 08CR-1099, and another motion filed by relator on
March 20, 2017 in Franklin C.P. Nos. 08CR-1099 and 08CR-1337.
Findings of Fact:
      {¶ 7} 1. On April 9, 2018, relator, an SCI inmate, filed this original action against
respondent.
No. 18AP-241                                                                              4

        {¶ 8} 2. In his complaint, relator alleges that, on February 15, 2017, he filed a
motion in the common pleas court in Franklin C.P. No. 08CR-1099 that respondent has
failed to rule on. The caption of the motion is "Motion To Vacate Or Stay Court Costs,
Fines, Mandatory Fines, And/Or Restitution."
        {¶ 9} 3. In his complaint, relator alleges that, on March 20, 2017, he filed another
motion in the common pleas court in Franklin C.P. No. 08CR-1337 that respondent has
not ruled on. The caption of the motion is "Defendant's Revised Motion To Vacate Fines
And Costs In Response To State's Memorandum Contra." This motion was also filed in
Franklin C.P. No. 08CR-1099.
        {¶ 10} 4. On April 20, 2018, respondent filed a motion to dismiss. Appended to
the motion as an exhibit are joint entries filed by respondent on April 25, 2017 in Franklin
C.P. Nos. 08CR-1099 and 08CR-1337.
        {¶ 11} 5. An entry in Franklin C.P. No. 08CR-1099 grants relator's February 15,
2017 motion to the extent that relator's payments toward his court costs are modified to
$10 per month until the obligation is paid in full.
        {¶ 12} 6. An entry in Franklin C.P. No. 08CR-1337 denies relator's motion filed
March 20, 2017. The entry points out the court did not impose fines or court costs in
Franklin C.P. No. 08CR-1337, but the court did order relator to pay $34,781.47 to the
Franklin County Child Support Enforcement Agency. Respondent's entry states that the
March 20, 2017 motion is denied "because the Court did not order Defendant to pay court
costs or fines, and the Court does not have statutory authority to suspend restitution once
imposed."
        {¶ 13} 7. On April 26, 2018, the magistrate issued an order providing that relator
shall file his response or brief in opposition to the motion to dismiss on or before May 14,
2018.
        {¶ 14} 8. Relator has not responded to respondent's motion to dismiss.
Conclusions of Law:
      {¶ 15} It is the magistrate's decision that this court grant respondent's motion to
dismiss.
        {¶ 16} 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
No. 18AP-241                                                                                5

be. State ex rel. Miley v. Parrott, 77 Ohio St.3d 64 (1996); State v. Sherrills v. Cuyahoga
Cty. Court of Common Pleas, 72 Ohio St.3d 461 (1995).
       {¶ 17} A writ of procedendo is appropriate when a court has either refused to
render a judgment or has unnecessarily delayed proceeding to judgment. Miley at 65,
citing State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180 (1995).
       {¶ 18} To be entitled to a writ of procedendo, the relator 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 law. State ex rel. Dawson v.
Summit Cty. Court of Common Pleas, 146 Ohio St.3d 435, 2016-Ohio-1597, ¶ 6.
       {¶ 19} A writ of procedendo will not issue to compel the performance of a duty
already performed. State ex rel. Morgan v. Fais, 146 Ohio St.3d 428, 2016-Ohio-1564.
       {¶ 20} Respondent's April 25, 2017 joint entries appended to his April 20, 2018
motion to dismiss show beyond doubt that respondent has performed the duty that
relator seeks to compel by this procedendo action. Clearly, this court can take judicial
notice of the April 25, 2017 joint entries showing this action has been rendered moot.
State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229.
       {¶ 21} Accordingly, it is the magistrate's decision that this court grant respondent's
motion to dismiss.


                                               /S/ MAGISTRATE
                                               KENNETH W. MACKE




                               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).
