[Cite as State ex rel. Cromwell v. Dellick, 2017-Ohio-7564.]



                            STATE OF OHIO, MAHONING COUNTY
                                   IN THE COURT OF APPEALS
                                         SEVENTH DISTRICT

STATE OF OHIO, ex. rel. ERIC                             )
CROMWELL and JENNIFER                                    )
CROMWELL                                                 )
                                                         )            CASE NO. 17 MA 0047
        RELATORS                                         )
                                                         )                 OPINION
VS.                                                      )                  AND
                                                         )             JUDGMENT ENTRY
THE HONORABLE THERESA DELLICK                            )
                                                         )
        RESPONDENT                                       )

CHARACTER OF PROCEEDINGS:                                Petition for Writ of Mandamus

JUDGMENT:                                                Dismissed.

APPEARANCES:
For Relators                                             Attorney Matthew Giannini
                                                         1040 South Commons Place, Suite 200
                                                         Youngstown, Ohio 44514

For Respondent                                           Attorney Gina Zawrotuk
                                                         21 West Boardman Street, 5th Floor
                                                         Youngstown, Ohio 44503

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                         Dated: September 7, 2017
[Cite as State ex rel. Cromwell v. Dellick, 2017-Ohio-7564.]
PER CURIAM.

        {¶1}     Relators, Eric Cromwell and Jennifer Cromwell, have filed a petition for a
writ of mandamus seeking to compel Respondent, Judge Theresa Dellick, to act on their
motion for legal custody. Respondent has filed a motion to dismiss.
        {¶2}     In 2013, Respondent adjudicated two children abused and dependent, and
assigned temporary custody to the children’s maternal grandmother and her husband. In
2014, Respondent transferred temporary custody of the children to their paternal
cousins, Relator’s herein.
        {¶3}     On February 8, 2017, Relator’s filed a motion in Respondent’s court to
amend and/or designate the Relator’s temporary custody order as one of legal custody.
On March 15, 2017, Relators filed a petition for a writ of mandamus in this Court seeking
to compel Respondent to act on their motion.1
        {¶4}     Generally, a petitioner may file for a writ of mandamus or for a writ of
procedendo to compel a court to rule on a pending motion.                    However, a writ of
mandamus is an extraordinary remedy which should be exercised with caution and
issued only when the right is clear. State ex rel. Brown v. Ashtabula Cty. Bd. of Elections,
142 Ohio St. 3d 370, 2014-Ohio-4022, 31 N.E.3d 596, ¶ 11. Entitlement to a writ of
mandamus requires the relator to demonstrate: (1) they have a clear legal right to the
relief, (2) the respondent has a clear legal duty to provide that relief, and (3) they have no
adequate remedy at law. State ex rel. Taxpayers for Westerville Schools v. Franklin Cty.
Bd. of Elections, 133 Ohio St.3d 153, 2012-Ohio-4267, 976 N.E.2d 890, ¶ 12.
        {¶5}     While counsel for Respondent argues that mandamus is not appropriate
where the petitioner is seeking to have a judge rule in a particular fashion or in favor of a
particular party, the crux of the relief Relators’ seek here is simply to have Respondent
act on their motion.        The Ohio Supreme Court’s Rules of Superintendence 40(A)(3)
states that “[a]ll motions shall be ruled upon within one hundred twenty days from the
date the motion was filed * * *.” The Ohio Supreme Court has held that this rule does not
give rise to an enforceable right in mandamus or procedendo. State ex rel. Culgan v.
Collier, 135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564, ¶ 8.
        {¶6}     However, in Culgan, the Court went to explain how the rule should guide a

1Relators filed a complaint for a writ of procedendo in this Court on May 15, 2017, seeking the same
relief. That action remains pending. State ex rel. Cromwell v. Dellick, 7th Dist. No. 17 MA 0089.
                                                                                     -2-


court’s consideration of a request to compel a ruling:

              Sup.R. 40(A)(3) imposes on trial courts a duty to rule on motions
       within 120 days. Although the Rules of Superintendence do not provide
       litigants with a right to enforce Sup.R. 40, the rule does guide this court in
       determining whether a trial court has unduly delayed ruling on a motion for
       purposes of ruling on a request for an extraordinary writ. A court that
       takes more than 120 days to rule on a motion risks unduly delaying the
       case and, as here, risks our issuing writs of mandamus and/or procedendo
       to compel a ruling.
              That is not to say that claims in mandamus and/or procedendo
       automatically lie simply because a motion remains pending longer than
       120 days. Other factors may dictate that a trial court take more time to rule
       on a motion. For example, a judge may require longer than 120 days to
       rule on a motion for summary judgment in a complex case. Other factors
       that might delay a ruling are the need for further discovery, the possibility
       of settlement, and other motions pending in the case. See State ex rel.
       Duncan v. DeWeese, 5th Dist. No. 2011-CA-67, 2011-Ohio-5194, 2011
       WL 4625370, ¶ 4. This is not an exhaustive list; we cannot anticipate all
       the factors that might allow a court, acting within its proper discretion, to
       delay ruling on a motion past the 120 days commanded by the rule.

Id. at ¶¶ 11-12.
       {¶7}   In the present case, Relator’s filed their petition before this Court only
thirty-five days after they had first filed their motion for legal custody in the trial court.
Therefore, at the time Relators filed this mandamus petition, the 120 days set forth
Sup.R. 40(A)(3) had yet to elapse, making their petition premature.
       {¶8}   Although 120 days have since elapsed since Relators filed their motion for
legal custody, there are factors which justify the trial court in this instance taking more
time than that to rule on the motion. The trial court has noted on the record that it has
had difficulty scheduling hearings due to the unavailability of dates and times from the
                                                                                  -3-


parties’ counsel. The case is undeniably a complex one involving the custody of two
minor children. The maternal grandfather of the two minor children has adopted one of
their siblings and has custody of another, younger sibling. He has a standing order of
visitation with the two minor children that are the subject of the proceedings before
Respondent and uses some of that time to facilitate visitation with the children's mother.
       {¶9}    The trial court had scheduled a custody trial to begin on May 3, 2017,
which would have necessarily addressed or determined the merits of Relators’ pending
motion for legal custody. In a judgment entry filed by the trial court on May 3, 2017, the
day set for trial, the trial court rescheduled the trial for October 16, 2017, noting that
counsel had informed it that the matter was being “held” in this Court. Based upon a
review of the trial court docket and the timeline contained herein, it is abundantly clear
that Respondent has not unduly delayed ruling on Relators’ motion and, in fact, any
delay in a ruling on the motion may be attributed to Relators having filed the present
petition in this Court.
       {¶10} Accordingly, Respondent’s motion to dismiss is granted. Relator’s petition
for a writ of mandamus is dismissed. Costs taxed against Relators. Final Order. Clerk to
serve notice upon the parties as provided by the Civil Rules.


DeGenaro, J., concurs.

Donofrio, J., concurs.

Waite, J., concurs.
