State v. Corrigan
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[Cite as State v. Corrigan, 2010-Ohio-4364.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 95139 STATE OF OHIO RELATOR vs. HONORABLE PATRICK F. CORRIGAN, ET AL. RESPONDENTS JUDGMENT: COMPLAINT DISMISSED Writ of Mandamus Motion No. 435058 Order No. 436672 RELEASE DATE: September 14, 2010 2 ATTORNEYS FOR RELATOR Kevin J. Baxter Special Prosecutor Susan R. Brown Vicki R. Palmer Erie County Prosecutor 247 Columbus Ave.,Ste.319 Sandusky, Ohio 44870 ATTORNEYS FOR RESPONDENT William D. Mason Cuyahoga County Prosecutor By: Lisa Reitz Williamson Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 JAMES J. SWEENEY, J.: {¶ 1} The state of Ohio ( State ), the relator, has filed a complaint for a writ of mandamus. The State seeks an order from this court which requires Judge Patrick F. Corrigan, the respondent, to render a ruling with regard to a Civ.R. 60(B) motion for relief from judgment that was filed in In re: A.B., Cuyahoga County Juvenile Court Case No. DL-07107930. Judge Corrigan has filed a motion to dismiss, which we grant for the following reasons. 3 {¶ 2} Initially, we find that the complaint for a writ of mandamus is improperly captioned. A complaint for a writ of mandamus must be brought in the name of the state of Ohio, on relation of the person applying for the writ. Herein, the State has failed to properly caption its complaint for a writ of mandamus. The failure of the State to properly caption its complaint warrants dismissal. Rust v. Lucas Cty. Bd. Of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766; Maloney v. Court of Common Pleas of Allen Cty. (1962), 173 Ohio ST. 226, 1818 N.E.2d 270; Dunning v. Cleary (Jan. 11, 2001), Cuyahoga App. No. 78763. {¶ 3} Finally, the complaint for a writ of mandamus fails to state a claim upon which relief can be granted, because the State cannot establish that it possesses a clear legal right to an immediate ruling on the pending Civ. R. 60(B) motion for relief from judgment or that Judge Corrigan possesses a clear legal duty to render an immediate ruling with regard to the pending Civ.R. 60(B) motion for relief from judgment. Herein, the aforesaid Civ.R. 60(B) motion for relief from judgment was filed in In re: A.B., Cuyahoga County Juvenile Court Case No. DL-07107930. The State has filed an appeal, in In re: A.B., Cuyahoga App. No. 95057, which is currently pending before this court. The appeal, as filed by the State, divests Judge Corrigan of the jurisdiction to consider the Civ.R. 60(B) motion for relief from judgment. Howard v. Catholic Social Serv. 4 of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 1994-Ohio-219, 637 N.E.2d 890. Thus, while the appeal remains pending with this court, there exists no right to a ruling on the Civ.R. 60(B) motion for relief from judgment nor does there exist a duty on the part of Judge Corrigan to render a ruling with regard to the Civ.R. 60(B) motion for relief from judgment. State ex rel. East Mfg. Corp. v. Ohio Civ. Rights Comm. (1992), 63 Ohio St.3d 179, 586 N.E.2d 105. See, also, Majnaric v. Majnaric (1975), 46 Ohio App.2d 157, 347 N.E.2d 552. {¶ 4} Accordingly, we grant Judge Corrigan s motion to dismiss. Costs to the State. It is further ordered that the Clerk of the Eighth District Court of Appeals serve notice of this judgment upon all parties as required by Civ.R. 58(B). Complaint dismissed. JAMES J. SWEENEY, JUDGE MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR
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