Court of Appeals of Ohio, Eleventh District, Ashtabula
STATE OF OHIO ex rel. ROBERT R. DAVIES, Relator,
JUDGE DAVID A. SCHROEDER, Respondent.
Original Actions for Writs of Procedendo and Mandamus.
R. Davies, pro se, (Relator).
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley
M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse,
This is an original action on a petition for a writ of
mandamus and a writ of procedendo by relator, Robert R.
Davies, and subsequent motion for summary judgment. Relator
requests that this court compel respondent, Judge David A.
Schroeder of the Ashtabula County Court, Western Division, to
rule in relator's favor on his motion to "vacate
judgment denying return of fines & costs." For the
reasons discussed herein, we dismiss relator's petition
as moot and overrule relator's motion for summary
In 2000, relator was convicted of misdemeanor sexual
imposition. In 2012, he sought "to have his conviction
declared void due to a flaw in the complaint. Ultimately, the
state determined that it could not produce a necessary
witness to demonstrate the complaint was valid and,
therefore, moved to vacate the conviction and dismiss the
case. The state's motion was granted." State v.
Davies, 11th Dist. Ashtabula No. 2017-A-0049,
2018-Ohio-5370, ¶2. On relator's motion, the trial
court sealed the record of proceedings. However, three years
later, relator filed a motion to unseal the record, a motion
to correct the grounds of the state's decision to dismiss
the case, and a motion to vacate the trial court's prior
decision overruling his request to be reimbursed for fines
and court costs. The trial court overruled the first two
motions, and, in 2018, relator appealed the trial court's
denial of his motion to unseal. In our December 31, 2018
judgment entry resolving that appeal, and of particular
relevance to the petition sub judice, this court noted, inter
alia, that "the motion to vacate * * * was not ruled
upon and remains pending." Davies, supra at
Relator now submits this petition seeking "a writ of
mandamus compelling Respondent to grant the pending motion
and to order the return of fines and costs" and "a
writ of procedendo compelling Respondent to provide the clerk
with proper certification of the total amount to be returned
* * *"
The state, on behalf of respondent, moved to dismiss
relator's petition pursuant to Civ.R. 12(B)(6) noting
that respondent has since issued a Journal Entry dated May 6,
2019, 33 days after relator filed the instant petition, which
denied relator's "motions to 'vacate judgment
denying return of fines and costs.'" A copy of the
May 6, 2019 Journal Entry is attached to respondent's
motion to dismiss.
In response, relator has filed a motion in opposition to
respondent's motions to dismiss and a motion for summary
judgment in which relator acknowledges respondent's May
6, 2019 Journal Entry and acknowledges his ability to file a
new appeal, but nevertheless asks this court not to dismiss
his petition as moot asserting that, "forcing Relator to
appeal anew is futile in light of this Court's authority
to compel the requested relief." We disagree. Indeed, as
we find relator's petition moot, as discussed below, this
court cannot grant relator the relief he seeks. "[I]t is
well established that courts do not have jurisdiction to
consider moot issues; rather, courts decide actual cases in
controversy." Deluca v. Aurora, 144 Ohio App.3d
501, 508 (11th Dist.2001).
"'As a general proposition, the basic purpose of a
writ of mandamus is to compel a public official to perform an
act which he has a legal duty to complete.'"
State ex rel. Lemon v. Campbell, 11th Dist. Trumbull
No. 2010-T-0064, 2010-Ohio-5301, ¶6, quoting State
ex rel. Donlin v. Hubbard Twp., 11th Dist. Trumbull No.
2003-T-0035, 2004-Ohio-1708. Therefore, "a writ of
mandamus will not lie to compel the performance of an act
which has already been completed." Campbell,
supra, ¶7. "[I]f the public official has
already done the very act which is the subject of a mandamus
action, the official is entitled to have the action dismissed
because the merits of the mandamus claim are considered
moot." Id., at ¶6, quoting Donlin,
We also note that "although it would usually be
inappropriate to consider evidentiary materials in ruling on
a motion to dismiss under Civ.R. 12(B)(6), such materials can
be reviewed when the basis of the dismissal motion is
mootness." Penko v. Mitrovich, 11th Dist. Lake
No. 2003-L-191, 2004-Ohio-6326, ¶5, citing State ex
rel. Robinson v. McKay, 11th Dist. Trumbull No.
2001-T-0125, 2002-Ohio-630. Therefore, since there is
presently a question of mootness, we may consider the Journal
Entry that was attached to the state's motion to dismiss.
In so doing, we find the Journal Entry to be determinative of
the issue sub judice. Though generally the best method of
establishing the existence of such a judgment is through the
submission of a certified copy of the entry, this court has
held that a finding of mootness can be made in an original
action when the relator does not contest the respondent's
contention. State ex rel. Davies v. Schroeder, 11th
Dist. Ashtabula No. 2013-A-0059, 2014-Ohio-973, ¶6.
Here, respondent has not submitted a certified copy of the
Journal Entry but merely a photocopy. However, while relator
attempts to contest the issue of mootness by asserting
respondent has not ruled in his favor, he does not deny the
issuance of the Journal Entry. Since the issuance of the
subject Journal Entry is not contested, respondent's
failure to submit a certified copy is not fatal.
Moreover, though relator specifically requested a favorable
response from respondent, a writ of mandamus is a means to
compel a legal duty, not a specific result. R.C. 2731.03
("The writ of mandamus may require an inferior tribunal
to exercise its judgment, or proceed to the discharge of any
of its functions, but it cannot control judicial
discretion."). Thus, respondent had a legal duty to rule
on relator's motion to vacate, but not a legal duty to
rule in his favor. Because respondent has taken the action
relator sought to compel through a writ of mandamus, to the
extent respondent could be so compelled, relator's
petition is rendered moot. Since there is now a resolution to
relator's motion to vacate judgments denying return of
fines and cost, relator may raise the present issues in an
appeal of the May 6, 2019 Journal Entry. As this is an
adequate remedy in the ordinary course of law, a petition for
writ of mandamus is no longer the appropriate vehicle by
which to seek resolution to relator's claims.
Accordingly, relator's petition for a writ of mandamus is
dismissed as moot.
Relatedly, relator's petition for a writ of procedendo is
also rendered moot. "'A writ of procedendo is
appropriate when a court has either refused to render a
judgment or has unnecessarily delayed proceeding to
judgment.'" (Citations omitted.) State ex rel.
Yeaples v. Gall, 141 Ohio St.3d 234, 2014-Ohio-4724,
¶20, citing State ex rel. Weiss v. Hoover, 84
Ohio St.3d 530, 532, (1999). "To be entitled to a writ
of procedendo, [relator] must show a clear legal right to
require the court to proceed, a clear legal duty on the part
of the court to proceed, and the lack of an adequate remedy
in the ordinary course of the law. A writ of procedendo is
proper when a court has refused to enter judgment or has
unnecessarily delayed proceeding to judgment."
(Citations omitted.) Shoop v. State, 144 Ohio St.3d
374, 2015-Ohio-2068, ¶6. Here, respondent has since
rendered judgment on the subject matter, and thus,
relator's petition for a writ of procedendo is rendered
For the reasons discussed herein, respondent's motion to
dismiss is granted, relator's petition for writ of
mandamus and writ of procedendo is dismissed, ...