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In re Kraft

Court of Appeals of Ohio, Fifth District, Richland

February 7, 2018

IN RE: BRETT ALLEN KRAFT Petitioner
v.
JUDGE JERRY AULT Respondent

         Writ of Mandamus

          For Petitioner BRETT ALLEN KRAFT PRO SE.

          For Respondent CHRISTOPHER L. BROWN.

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

          OPINION

          Gwin, P.J.

         {¶1} Petitioner, Brett Kraft, has filed a Petition for Writ of Mandamus seeking a writ of mandamus (1) requiring Respondent to issue findings of fact and conclusions of law relative to bond, (2) requiring Respondent to issue a final, appealable order, and (3) requiring Respondent to rule an outstanding motion filed by Petitioner. Respondent has filed a motion to dismiss.

         MANDAMUS

         {¶2} "For a writ of mandamus to issue, the relator must establish a clear legal right to the relief prayed for; the respondent must have a clear legal duty to perform the act; and the relator must have no plain and adequate remedy in the ordinary course of the law." State ex rel. Widmer v. Mohney, 11th Dist. Geauga No. 2007-G-2776, 2008-Ohio-1028, ¶31.

         {¶3} We find Petitioner has not properly brought this action. R.C. 2731.04 provides, "Application for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying, and verified by affidavit."

         {¶4} Failure to comply with these requirements is grounds for dismissal. Thorne v. State, 8th Dist. No. 85024, 2004-Ohio-6288; Maloney v. Court of Common Pleas of Allen County, 173 Ohio St. 226, 181 N.E.2d 270 (1962).

         {¶5} Petitioner's claim Respondent is required to issue findings of fact and conclusions of law in support of Respondent's denial of bond and/or a bond hearing is without merit. Civil Rule 52 governs findings of fact and conclusions of law. Civil Rule 52 requires findings of fact and conclusions of law only where "questions of fact are tried by the court." The rule further states, "Findings of fact and conclusions of law required by this rule and by Civ.R. 41(B)(2) and Civ.R. 23(G)(3) are unnecessary upon all other motions including those pursuant to Civ.R. 12, Civ.R. 55 and Civ.R. 56."

         {¶6} Denial of a bond or bond hearing is not the same as a trial, therefore, findings of fact and conclusion of law are not required. Petitioner has provided no authority in support of his position.

         {¶7} Petitioner also complains Respondent has not issued final orders in Shelby Municipal Court Case Numbers TRD 1000062 and TRD 1200159 because Respondent has not issued "a decree in writing bearing his signature that Petitioner was found guilty or was made liable for any fines." (Amended Complaint, paragraph 1). We have reviewed the two entries from these cases and find they do contain findings of guilt, the sentence, and Respondent's signature. Therefore, Respondent has issued a final order in these cases.

         {¶8} "Neither procedendo nor mandamus will compel the performance of a duty that has already been performed." State ex rel. Kreps v. Christiansen (2000), 88 ...


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