State ex rel. Brime v. McIntosh, 2019 Ohio 4019

Relator Ozie M. Brime (pro se, inmate) filed a petition for postconviction relief in Franklin C.P. No. 17CR-1077 on April 11, 2018 and a related motion for summary judgment on April 26, 2018.
No ruling had been entered when Brime filed an original action for a writ of procedendo in this court on February 4, 2019, seeking an order compelling the trial judge to rule.
The magistrate ordered the trial judge to respond by May 21, 2019; no timely response was filed by counsel for the judge.
On June 12, 2019, the judge (through counsel) moved for leave to file a motion to dismiss and attached a certified copy of the trial court’s June 11, 2019 entry denying Brime’s April 11, 2018 postconviction motion.
The magistrate allowed the late filing in the interest of justice, concluded the trial judge had performed the act sought, recommended dismissal of the procedendo, and recommended waiver of costs because the judge had not acted prior to Brime filing this action.
The court adopted the magistrate’s decision, granted the judge’s motion to dismiss, denied the writ of procedendo, and waived Brime’s costs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Brime is entitled to a writ of procedendo compelling the trial court to rule on his postconviction motion	Brime argued the trial court failed or unduly delayed ruling and therefore procedendo is appropriate	The trial judge showed he issued a ruling (June 11, 2019) denying the postconviction motion, so there is nothing left to compel	Writ denied — trial court had performed the act sought
Whether the court should waive court costs	Brime implicitly sought waiver because the judge had not acted before he filed procedendo	Respondent did not oppose waiver in light of the delay prior to the filing	Costs waived
Whether the magistrate could accept and consider a late-filed motion to dismiss	Brime had already initiated the procedendo; no timely opposition to late filing was filed	Magistrate requested and granted leave to file the late motion in the interest of justice	Late filing permitted and considered

State ex rel. Miley v. Parrott, 77 Ohio St.3d 64 (Ohio 1996) (procedendo requires clear legal right, clear legal duty, and no adequate remedy)
State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461 (Ohio 1995) (procedendo orders an inferior court to proceed to judgment; it does not dictate the judgment)
State ex rel. Dehler v. Sutula, 74 Ohio St.3d 33 (Ohio 1995) (procedendo remedies an inferior court's refusal or failure to timely dispose of a pending action)
Indus. Risk Insurers v. Lorenz Equip. Co., 69 Ohio St.3d 576 (Ohio 1994) (a court may take judicial notice of its own docket)
State ex rel. Neff v. Corrigan, 75 Ohio St.3d 12 (Ohio 1996) (courts may take judicial notice in ruling on certain motions without converting to summary judgment)
State ex rel. Coles v. Granville, 116 Ohio St.3d 231 (Ohio 2007) (a court may judicially notice filings in other courts to establish existence of litigation and related filings)
Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384 (2d Cir. 1992) (courts may judicially notice documents filed in other courts for the fact of their filing)