State ex rel. Thomas v. Nestor (Slip Opinion), 2021 Ohio 672

Relator Lewis Thomas III, an incarcerated person, sought extraordinary relief after a trial-court entry (Feb. 25, 2019) denied his motion to correct a sentencing entry but did not include Civ.R. 58(B) language directing the clerk to serve the parties.
Thomas claimed the lack of clerk service delayed his ability to appeal and asked the court to compel the judge to direct the clerk to serve the entry under Civ.R. 58(B).
Judge Steven Martin issued the entry; Judge Terry Nestor, Martin’s successor, was later substituted as respondent. The court of appeals dismissed Thomas’s petition; Thomas appealed to the Ohio Supreme Court.
The Supreme Court reviewed the dismissal de novo and affirmed the court of appeals’ judgment, though it rejected some of that court’s reasoning.
The Court held mandamus was unnecessary because formal clerk service under Civ.R. 58(B) was not required for Thomas to timely file an appeal; procedendo did not lie because the judge’s omission was not a refusal or delay to proceed to judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether judge has a clear duty to direct clerk to serve under Civ.R. 58(B) (mandamus)	Thomas: Judge must direct clerk under Civ.R. 58(B); compel direction to enable service and start appeal clock	Nestor: Civ.R. 58(B) imposes duty on clerk; judge has no clear duty to serve	No mandamus — even if judge could be ordered to direct clerk, mandamus would provide no benefit because lack of clerk service does not prevent filing an appeal
Whether mandamus relief is necessary to preserve Thomas’s right to appeal	Thomas: Without clerk service he cannot timely appeal	Nestor: Thomas can still timely file a notice of appeal; clerk service only affects when the appeal clock starts	Held for Nestor — Thomas may file a timely appeal despite lack of formal service; mandamus would not change his position
Whether procedendo lies to compel judge to order clerk to serve (procedendo)	Thomas: Judge’s failure to order clerk to serve is a delay/refusal to proceed to judgment	Nestor: Omission is not a refusal or delay in entering judgment; Civ.R. 58(B) failure does not invalidate judgment	No procedendo — omission is not refusal or delay; judgment is valid despite lack of clerk service

State ex rel. Daniels v. Russo, 156 Ohio St.3d 143 (establishing that an order denying a motion for a new sentencing entry is final and appealable)
In re Anderson, 92 Ohio St.3d 63 (holding an appellant may timely appeal even when the clerk failed to serve notice under Civ.R. 58(B))
Clermont Cty. Transp. Improvement Dist. v. Gator Milford, L.L.C., 141 Ohio St.3d 542 (applying Civ.R. 58(B) to final, appealable orders other than final judgments)
State ex rel. McCuller v. Cuyahoga Cty. Court of Common Pleas, 143 Ohio St.3d 130 (mandamus need not be granted when the relator would receive no benefit from the writ)
State ex rel. Culgan v. Collier, 135 Ohio St.3d 436 (defining procedendo: issue when a court refuses or unnecessarily delays entering judgment)
State ex rel. Zander v. Judge of Summit Cty. Common Pleas Court, 156 Ohio St.3d 466 (mandamus dismissal reviewed de novo)
State ex rel. Miller v. Bower, 156 Ohio St.3d 455 (court may affirm correct judgment even if lower court’s rationale was erroneous)
State ex rel. Dynamic Industries, Inc. v. Cincinnati, 147 Ohio St.3d 422 (reviewing court of appeals’ mandamus judgment as if filed originally in Supreme Court)
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (procedural principle about reviewing lower-court mandamus judgments in this court)
Whitehall ex rel. Fenessy v. Bambi Motel, Inc., 131 Ohio App.3d 734 (holding appeal timely when trial court did not instruct clerk under Civ.R. 58(B) and no notices were sent)