[Cite as State ex rel. Oteng v. McIntosh, 2016-Ohio-3035.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State ex rel. Dennis Oteng,                             :

                 Relator,                               :

v.                                                      :            No. 15AP-844

Stephen L. McIntosh, Judge                              :         (REGULAR CALENDAR)
Franklin County Court of Common Pleas,
                                                        :
                 Respondent.
                                                        :


                                            D E C I S I O N

                                       Rendered on May 17, 2016


                 Dennis Oteng, pro se.

                 Ron O'Brien, Prosecuting Attorney, and Scott J. Gaugler, for
                 respondent.

                                IN PROCEDENDO
                 ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

TYACK, J.
        {¶ 1} Dennis Oteng filed this action in procedendo seeking a writ to compel a
ruling on his motion for a new trial.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, this case
was referred to a magistrate to conduct appropriate proceedings.
        {¶ 3} Counsel for the judge responsible for Oteng's case in the trial court filed a
motion requesting that this action in procedendo be dismissed. The magistrate converted
the motion to dismiss to a motion for summary judgment so that the magistrate could
consider matters outside of the pleadings, specifically an entry reflecting the fact that the
trial court had ruled on Oteng's motion for a new trial.
No. 15AP-844                                                                            2

       {¶ 4} Based upon the trial court's ruling, the magistrate issued a magistrate's
decision which contains detailed findings of fact and conclusions of law. The magistrate's
decision includes a recommendation that we grant summary judgment and deny the
request for a writ.
       {¶ 5} Oteng has not filed objections to the magistrate's decision. This case is now
before the court for review.
       {¶ 6} No error of law or fact is present on the face of the magistrate's decision.
We, therefore, adopt the findings of fact in the magistrate's decision and conclusions of
law contained therein. As a result, we grant respondent's motion for summary judgment
and deny the request for a writ of procedendo.
                                                 Motion for summary judgment granted;
                                                              writ of procedendo denied.

                        DORRIAN, P.J. and HORTON, J., concur.
                              _________________
No. 15AP-844                                                                           3

                                   APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

State ex rel. Dennis Oteng,                  :

              Relator,                       :

v.                                           :                    No. 15AP-844

Stephen L. McIntosh, Judge                   :               (REGULAR CALENDAR)
Franklin County Court of Common Pleas,
                                             :
              Respondent.
                                             :


                         MAGISTRATE'S DECISION

                              Rendered on February 12, 2016


              Dennis Oteng, pro se.

              Ron O'Brien, Prosecuting Attorney, and Scott J. Gaugler, for
              respondent.


                            IN PROCEDENDO
              ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

       {¶ 7} In this original action, relator, Dennis Oteng, an inmate of the Ross
Correctional Institution ("RCI"), 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 his August 13, 2014 motion for new trial filed in the common pleas court.
Findings of Fact:
       {¶ 8} 1. On September 10, 2015, relator, an RCI inmate, filed this original action
against respondent. In his complaint, relator requests a writ of procedendo ordering
respondent to rule on his motion for new trial filed August 13, 2014 in Franklin C.P. No.
13CR-224.
No. 15AP-844                                                                               4

       {¶ 9} 2. On October 15, 2015, respondent filed a motion to dismiss. In support,
respondent attached a copy of his entry filed October 15, 2015 in common pleas court in
case No. 13CR-224. The entry denies relator's August 13, 2014 motion for new trial.
       {¶ 10} 3. On October 16, 2015, the magistrate issued an order converting
respondent's motion to dismiss to one for summary judgment.
       {¶ 11} 4. Also on October 16, 2015, the magistrate issued notice that the motion
for summary judgment is set for submission to the magistrate on November 6, 2015.
       {¶ 12} 5. On October 16, 2015, respondent filed a memorandum captioned
"Respondent's Response to Magistrate's Order." In his memorandum, respondent points
out that the copy of his entry attached to his motion to dismiss is a certified copy.
       {¶ 13} 6. Relator has not responded to the magistrate's notice of summary
judgment hearing.
Conclusions of Law:
       {¶ 14} It is the magistrate's decision that this court grant respondent's motion for
summary judgment.
       {¶ 15} In this action, relator seeks a writ of procedendo ordering respondent to
rule on his August 13, 2014 motion for new trial. Subsequent to his filing of this action,
respondent has ruled on the motion for new trial. Accordingly, relator has received the
relief that he seeks in this action.
       {¶ 16} Procedendo will not compel the performance of a duty that has already been
performed. State ex rel. Walker v. Koch, 98 Ohio St.3d 295, 2003-Ohio-856, ¶ 4.
       {¶ 17} Summary judgment is appropriate when the movant demonstrates that: (1)
there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a
matter of law; and (3) reasonable minds can come to but one conclusion, and that
conclusion is adverse to the party against whom the motion for summary judgment is
made, said party being entitled to have the evidence construed most strongly in his favor.
Turner v. Turner, 67 Ohio St.3d 337, 339-40 (1993); Bostic v. Connor, 37 Ohio St.3d 144,
146 (1988); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). The
moving party bears the burden of proving no genuine issue of material fact exists. Mitseff
v. Wheeler, 38 Ohio St.3d 112, 115 (1988).
       {¶ 18} Clearly, respondent is entitled to judgment as a matter of law.
No. 15AP-844                                                                              5

      {¶ 19} Accordingly, it is the magistrate's decision that this court grant respondent's
motion for summary judgment.




                                             /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).
