[Cite as Ramirez v. Richland Cty. Common Pleas Court, 2012-Ohio-661.]


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



MOISES RAMIREZ                                  :       JUDGES:
                                                :       Hon. Patricia A. Delaney, P.J.
                Petitioner                      :       Hon. John W. Wise, J.
                                                :       Hon. Julie A. Edwards, J.
-vs-                                            :
                                                :       CASE NO. 11CA87
RICHLAND COUNTY COMMON                          :
PLEAS COURT                                     :
                                                :       OPINION
                Respondent                      :




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2008CV0403

JUDGMENT:                                           Dismissed


DATE OF JUDGMENT ENTRY:                             February 7, 2012




APPEARANCES:


For Petitioner:                                     For Respondent:

Moises Ramirez, Pro Se                              Daniel J. Benoit, Esq.
Allen Correctional Institution                      Assistant Richland County Prosecutor
P.O. Box 4501                                       38 South Park, Second Floor
Lima, Ohio 45802-4501                               Mansfield, Ohio 44902
Richland County, Case No. 11CA87

Delaney, P.J.

{¶1}   Petitioner Moises Ramirez has filed a “Motion for Writ of Mandamus”

requesting a writ be issued which would require Respondent to rule on a motion

that Petitioner filed in the trial court. Respondent has filed a Motion to Dismiss

indicating the trial court has now ruled on the motion.

{¶2}   Prior to reaching the merits of the motion for writ and motion to dismiss,

we find Petitioner has not properly brought this action. R.C. 2731.04 provides,

“Application for the writ of mandamus must be by petition, in the name of the

state on the relation of the person applying, and verified by affidavit.” Failure to

comply with these requirements is grounds for dismissal. Thorne v. State, 8th

Dist. No. 85024, 2004-Ohio-6288; Maloney v. Court of Common Pleas of Allen

County, 173 Ohio St. 226, 181 N.E.2d 270 (1962). Petitioner herein has not

properly brought this cause as a petition in the name of the state. Blankenship v.

Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382; Perotti v.

Mahoning County Clerk, 7th Dist. No. 05-MA-202, 2006-Ohio-673. See also,

Selway v. Court of Common Pleas Stark County, 5th Dist. No. 2007CA00213,

2007-Ohio-4566.

{¶3}   Petitioner also has failed to comply with R.C. 2969.25 by neglecting to file

an affidavit detailing his prior civil filings. The Supreme Court has held, “[t]he

requirements of R.C. 2969.25 are mandatory, and failure to comply with them

subjects an inmate's action to dismissal.” State ex rel. White v. Bechtel, 99 Ohio

St.3d 11, 2003-Ohio-2262, 788 N.E.2d 634, ¶ 5.
Richland County, Case No. 11CA87                                           2



{¶4}   Even had Petitioner properly filed this cause, we would not find the

issuance of a writ of mandamus to be warranted.

{¶5}   For a writ of mandamus to issue, the relator must have a clear legal right

to the relief prayed for, the respondents must be under a clear legal duty to

perform the requested act, and relator must have no plain and adequate remedy

in the ordinary course of law. State, ex rel. Berger, v. McMonagle, 6 Ohio St.3d

28, 451 N.E.2d 225 (1983).

{¶6}   The Supreme Court has held, “[n]either procedendo nor mandamus will

compel the performance of a duty that has already been performed. State ex rel.

Grove v. Nadel (1998), 84 Ohio St.3d 252, 253, 703 N.E.2d 304, 305.” State ex

rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 318, 2000-Ohio335, 725 N.E.2d

663, 668.

{¶7}   Because the relief requested in the motion has been obtained, a ruling on

the motion pending in the trial court, we find the request for writ of mandamus to

be moot.
Richland County, Case No. 11CA87                                          3



{¶8} For this reason, Respondent’s Motion to Dismiss is granted. The petition for

a writ of mandamus is dismissed.

By: Delaney, P.J.

    Wise, J. and
    Edwards, J. concur


                                         ____________________________
                                         HON. PATRICIA A. DELANEY


                                         ____________________________
                                         HON. JOHN W. WISE


                                         ____________________________
                                         HON. JULIE A. EDWARDS
        IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


MOISES RAMIREZ                       :     CASE NO. 11CA87
                                     :
       Petitioner                    :
                                     :
-vs-                                 :     JUDGMENT ENTRY
                                     :
RICHLAND COUNTY COMMON               :
PLEAS COURT                          :
                                     :
       Respondent                    :



       For the reasons stated in our accompanying Memorandum-Opinion, this

cause is dismissed.

       Costs taxed to Petitioner.




                                     ______________________________
                                     HON. PATRICIA A. DELANEY


                                     ______________________________
                                     HON. JOHN W. WISE


                                     ______________________________
                                     HON. JULIE A. EDWARDS
