[Cite as State ex rel. Davies v. Schroeder, 2019-Ohio-2871.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO ex rel. ROBERT R.                           :   PER CURIAM OPINION
 DAVIES,
                                                           :
                    Relator,                                   CASE NO. 2019-A-0043
                                                           :
          - vs -
                                                           :
 JUDGE DAVID A. SCHROEDER,
                                                           :
                    Respondent.
                                                           :


 Original Actions for Writs of Procedendo and Mandamus.

 Judgment: Petition dismissed.


 Robert R. Davies, pro se, 7455 Harmon Road, Conneaut, OH 44030 (Relator).

 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
 44047 (For Respondent).



PER CURIAM.

        {¶1}       This is an original action on a petition for a writ of mandamus and a writ of

procedendo by relator, Robert R. Davies, and subsequent motion for summary judgment.

Relator requests that this court compel respondent, Judge David A. Schroeder of the

Ashtabula County Court, Western Division, to rule in relator’s favor on his motion to

“vacate judgment denying return of fines & costs.” For the reasons discussed herein, we

dismiss relator’s petition as moot and overrule relator’s motion for summary judgment.
       {¶2}    In 2000, relator was convicted of misdemeanor sexual imposition. In 2012,

he sought “to have his conviction declared void due to a flaw in the complaint. Ultimately,

the state determined that it could not produce a necessary witness to demonstrate the

complaint was valid and, therefore, moved to vacate the conviction and dismiss the case.

The state’s motion was granted.” State v. Davies, 11th Dist. Ashtabula No. 2017-A-0049,

2018-Ohio-5370, ¶2. On relator’s motion, the trial court sealed the record of proceedings.

However, three years later, relator filed a motion to unseal the record, a motion to correct

the grounds of the state’s decision to dismiss the case, and a motion to vacate the trial

court’s prior decision overruling his request to be reimbursed for fines and court costs.

The trial court overruled the first two motions, and, in 2018, relator appealed the trial

court’s denial of his motion to unseal. In our December 31, 2018 judgment entry resolving

that appeal, and of particular relevance to the petition sub judice, this court noted, inter

alia, that “the motion to vacate * * * was not ruled upon and remains pending.” Davies,

supra at ¶7.

       {¶3}    Relator now submits this petition seeking “a writ of mandamus compelling

Respondent to grant the pending motion and to order the return of fines and costs” and

“a writ of procedendo compelling Respondent to provide the clerk with proper certification

of the total amount to be returned * * *.”

       {¶4}    The state, on behalf of respondent, moved to dismiss relator’s petition

pursuant to Civ.R. 12(B)(6) noting that respondent has since issued a Journal Entry dated

May 6, 2019, 33 days after relator filed the instant petition, which denied relator’s “motions

to ‘vacate judgment denying return of fines and costs.’” A copy of the May 6, 2019 Journal

Entry is attached to respondent’s motion to dismiss.




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       {¶5}   In response, relator has filed a motion in opposition to respondent’s motions

to dismiss and a motion for summary judgment in which relator acknowledges

respondent’s May 6, 2019 Journal Entry and acknowledges his ability to file a new appeal,

but nevertheless asks this court not to dismiss his petition as moot asserting that, “forcing

Relator to appeal anew is futile in light of this Court’s authority to compel the requested

relief.” We disagree. Indeed, as we find relator’s petition moot, as discussed below, this

court cannot grant relator the relief he seeks. “[I]t is well established that courts do not

have jurisdiction to consider moot issues; rather, courts decide actual cases in

controversy.” Deluca v. Aurora, 144 Ohio App.3d 501, 508 (11th Dist.2001).

       {¶6}   “‘As a general proposition, the basic purpose of a writ of mandamus is to

compel a public official to perform an act which he has a legal duty to complete.’” State

ex rel. Lemon v. Campbell, 11th Dist. Trumbull No. 2010-T-0064, 2010-Ohio-5301, ¶6,

quoting State ex rel. Donlin v. Hubbard Twp., 11th Dist. Trumbull No. 2003-T-0035, 2004-

Ohio-1708. Therefore, “a writ of mandamus will not lie to compel the performance of an

act which has already been completed.” Campbell, supra, ¶7. “[I]f the public official has

already done the very act which is the subject of a mandamus action, the official is entitled

to have the action dismissed because the merits of the mandamus claim are considered

moot.” Id., at ¶6, quoting Donlin, supra.

       {¶7}   We also note that “although it would usually be inappropriate to consider

evidentiary materials in ruling on a motion to dismiss under Civ.R. 12(B)(6), such

materials can be reviewed when the basis of the dismissal motion is mootness.” Penko

v. Mitrovich, 11th Dist. Lake No. 2003-L-191, 2004-Ohio-6326, ¶5, citing State ex rel.

Robinson v. McKay, 11th Dist. Trumbull No. 2001-T-0125, 2002-Ohio-630. Therefore,




                                             3
since there is presently a question of mootness, we may consider the Journal Entry that

was attached to the state’s motion to dismiss. In so doing, we find the Journal Entry to

be determinative of the issue sub judice.         Though generally the best method of

establishing the existence of such a judgment is through the submission of a certified

copy of the entry, this court has held that a finding of mootness can be made in an original

action when the relator does not contest the respondent’s contention. State ex rel. Davies

v. Schroeder, 11th Dist. Ashtabula No. 2013-A-0059, 2014-Ohio-973, ¶6.                 Here,

respondent has not submitted a certified copy of the Journal Entry but merely a

photocopy. However, while relator attempts to contest the issue of mootness by asserting

respondent has not ruled in his favor, he does not deny the issuance of the Journal Entry.

Since the issuance of the subject Journal Entry is not contested, respondent’s failure to

submit a certified copy is not fatal.

       {¶8}   Moreover, though relator specifically requested a favorable response from

respondent, a writ of mandamus is a means to compel a legal duty, not a specific result.

R.C. 2731.03 (“The writ of mandamus may require an inferior tribunal to exercise its

judgment, or proceed to the discharge of any of its functions, but it cannot control judicial

discretion.”). Thus, respondent had a legal duty to rule on relator’s motion to vacate, but

not a legal duty to rule in his favor. Because respondent has taken the action relator

sought to compel through a writ of mandamus, to the extent respondent could be so

compelled, relator’s petition is rendered moot. Since there is now a resolution to relator’s

motion to vacate judgments denying return of fines and cost, relator may raise the present

issues in an appeal of the May 6, 2019 Journal Entry. As this is an adequate remedy in

the ordinary course of law, a petition for writ of mandamus is no longer the appropriate




                                             4
vehicle by which to seek resolution to relator’s claims. Accordingly, relator’s petition for

a writ of mandamus is dismissed as moot.

       {¶9}   Relatedly, relator’s petition for a writ of procedendo is also rendered moot.

“‘A writ of procedendo is appropriate when a court has either refused to render a judgment

or has unnecessarily delayed proceeding to judgment.’” (Citations omitted.) State ex rel.

Yeaples v. Gall, 141 Ohio St.3d 234, 2014-Ohio-4724, ¶20, citing State ex rel. Weiss v.

Hoover, 84 Ohio St.3d 530, 532, (1999). “To be entitled to a writ of procedendo, [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 the

law. A writ of procedendo is proper when a court has refused to enter judgment or has

unnecessarily delayed proceeding to judgment.” (Citations omitted.) Shoop v. State, 144

Ohio St.3d 374, 2015-Ohio-2068, ¶6. Here, respondent has since rendered judgment on

the subject matter, and thus, relator’s petition for a writ of procedendo is rendered moot.

       {¶10} For the reasons discussed herein, respondent’s motion to dismiss is

granted, relator’s petition for writ of mandamus and writ of procedendo is dismissed, and

all other pending motions are hereby overruled.



CYNTHIA WESTCOTT RICE, J., MATT LYNCH, J., MARY JANE TRAPP, J., concur.




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