2022 Ohio 2226
Ohio Ct. App.2022Background
- Relator Romie L. Rojas (pro se, incarcerated) filed a successive petition to vacate his conviction on October 27, 2017 in Franklin C.P. No. 10CR-7040.
- On October 6, 2021 Rojas filed this original action seeking a writ of procedendo to compel Judge Jaiza Page to rule on that 2017 petition.
- Judge Page filed a Civ.R. 12(B)(6) motion to dismiss on October 28, 2021, arguing the procedendo claim was moot.
- The magistrate took judicial notice that on February 14, 2022 Judge Page entered an order denying Rojas’s October 27, 2017 successive petition.
- The magistrate concluded procedendo cannot compel an act already performed and recommended dismissal; the court adopted the magistrate’s decision, granted the motion to dismiss, and denied the writ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rojas is entitled to a writ of procedendo compelling Judge Page to rule on his Oct. 27, 2017 successive petition | Page has failed or delayed ruling on the petition; procedendo is needed | Judge Page has ruled (denied the petition), so there is nothing left to compel | Denied — procedendo will not compel an act already performed; judge issued a ruling, so relief is unavailable |
| Whether the complaint should be dismissed under Civ.R. 12(B)(6) | Rojas seeks issuance of a writ alleging a clear legal right to prompt ruling | Motion to dismiss: complaint is moot because the court has ruled; complaint fails to state a claim | Granted — dismissal appropriate where no set of facts entitles relator to the requested writ once the challenged act is completed |
Key Cases Cited
- State ex rel. Miley v. Parrott, 77 Ohio St.3d 64 (1996) (sets elements for entitlement to writ of procedendo)
- State ex rel. Dehler v. Sutula, 74 Ohio St.3d 33 (1995) (procedendo remedies delay or refusal to render judgment)
- State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104 (1994) (describing procedendo’s purpose)
- State ex rel. Lester v. Pepple, 130 Ohio St.3d 353 (2011) (procedendo will not compel an act already performed)
- State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313 (2000) (same principle regarding completed acts)
- State ex rel. Grove v. Nadel, 84 Ohio St.3d 252 (1998) (procedendo cannot compel completed acts)
- O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975) (standard for dismissal under Civ.R. 12(B)(6))
- LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323 (2007) (construing complaints and inferences on 12(B)(6) motions)