2016 Ohio 5342
Ohio Ct. App.2016Background
- Relator Javier H. Armengau, an inmate, filed an original action in this court seeking a writ of procedendo to compel Judge Jennifer A. French (Franklin C.P.) to rule on his Crim.R. 33(B) motion for a new trial filed August 7, 2015 in case No. 13CR-2217.
- Relator filed the procedendo petition on March 24, 2016.
- Respondent Judge French moved for summary judgment on April 21, 2016 and attached a certified copy of her April 5, 2016 decision and entry denying relator’s motion for new trial.
- The matter was referred to a magistrate under Civ.R. 53; the magistrate issued a decision on May 25, 2016 finding the action moot because the trial court had already ruled.
- Relator did not file objections to the magistrate’s decision; he admitted in filings that, but for this action, the motion would still be pending (effectively conceding the trial court ruled).
- The Tenth District Court of Appeals adopted the magistrate’s decision, granted respondent’s motion for summary judgment, and denied the writ of procedendo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether procedendo can compel a judge to rule on relator's motion for new trial | Armengau sought an order compelling Judge French to decide his August 7, 2015 Crim.R. 33(B) motion | French argued she already ruled on the motion (denied on April 5, 2016), so procedendo relief is unnecessary | Court held procedendo is moot where the requested duty has already been performed and granted summary judgment for respondent |
| Whether summary judgment was appropriate on the procedendo petition | Armengau implicitly contended his motion remained undecided and relief was required | French produced a certified copy of the denial and argued there is no genuine issue of material fact | Court held no genuine issue; respondent entitled to judgment as a matter of law and summary judgment was granted |
Key Cases Cited
- State ex rel. Walker v. Koch, 98 Ohio St.3d 295 (procedendo will not compel performance of a duty already performed)
- Turner v. Turner, 67 Ohio St.3d 337 (summary judgment standard)
- Bostic v. Connor, 37 Ohio St.3d 144 (summary judgment principles)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (summary judgment standard)
- Mitseff v. Wheeler, 38 Ohio St.3d 112 (moving party's burden on summary judgment)