[Cite as State v. Hurst, 2013-Ohio-193.]


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


STATE OF OHIO                                :    JUDGES:
                                             :
        Respondent                           :    Hon., Sheila G. Farmer P.J.
                                             :    Hon., William B. Hoffman J.
-vs-                                         :    Hon., John W. Wise J.
                                             :
MARK E. HURST                                :    CASE NO. 12-CA-63
                                             :
        Relator                              :
                                             :    OPINION


CHARACTER OF PROCEEDING:                          Petition for Writ of Mandamus


JUDGMENT:                                         WRIT DISMISSED


DATE OF JUDGMENT ENTRY:                           January 15, 2013



APPEARANCES:

For Relator:                                      For Respondent:

Mark E. Hurst, pro se.                            Kenneth W. Oswalt
19 East Street                                    Amy Brown Thompson (#0070511)
Newark, Ohio 43055                                Assistant Prosecuting Attorney
                                                  20 South Second Street
                                                  4th Floor
                                                  Newark, Ohio 43055
Licking County, Case No. 12-CA-63                                            1

Farmer, P.J.

       {¶1}    Petitioner Mark E. Hurst has filed a “Motion and/or Petition for a Writ of

Mandamus” requesting a writ be issued which would require the trial court to rule on a

motion that Petitioner filed in the trial court. Respondent, the State of Ohio, has filed a

Motion to Dismiss based upon several procedural defects in the petition.

       {¶2}    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.”

       {¶3}    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).

       {¶4}     Petitioner herein has not properly brought this cause as a petition in the

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

2007–Ohio–4566.

       {¶5}    Further, the Petition does not contain an affidavit of verity as required by

R.C. 2731.04.

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

issuance of a writ of mandamus to be warranted.
Licking County, Case No. 12-CA-63                                            2

       {¶7}   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.

       {¶8}   Petitioner has failed to name a proper respondent.          Respondent has

captioned the petition as State of Ohio v. Mark E. Hurst. The State of Ohio does not

have a legal duty to rule on motions filed by a litigant in a court case. For this reason, a

writ of mandamus does not lie against the State.

       {¶9} For these reasons, Respondent's Motion to Dismiss is granted. The petition

for a writ of mandamus is dismissed.

       {¶10} PETITION FOR WRIT DISMISSED.

       {¶11} COSTS TO RELATOR.


By: Farmer, P.J.
    Hoffman, J. and
    Wise, J. concur

                                                 _________________________
                                                 HON. SHEILA G. FARMER


                                                 _________________________
                                                 HON. WILLIAM B. HOFFMAN


                                                 _________________________
                                                 HON. JOHN W. WISE
                            IN THE COURT OF APPEALS
                            FIFTH APPELLATE DISTRICT
                              LICKING COUNTY, OHIO


STATE OF OHIO                           :
                                        :      CASE NO. 12-CA-63
       Respondent                       :
                                        :
-vs-                                    :      JUDGMENT ENTRY
                                        :
MARK E. HURST                           :
                                        :
       Relator                          :


       For the reasons stated in the Memorandum-Opinion on file, Petitioner’s

Writ of Mandamus is hereby dismissed. Costs taxed to Relator.




                                               __________________________
                                               HON. SHEILA G. FARMER


                                               __________________________
                                               HON. WILLIAM B. HOFFMAN


                                               __________________________
                                               HON. JOHN W. WISE
