State ex rel. Horoszewski v. Zmuda
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[Cite as State ex rel. Horoszewski v. Zmuda, 2006-Ohio-4805.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY Stephen Horoszewski, On Behalf of Himself and All Others Similarly Situated Court of Appeals No. L-06-1253 Relator v. Gene A. Zmuda, Judge Respondent DECISION AND JUDGMENT ENTRY Decided: September 12, 2006 ***** David W. Zoll and Daniel P. Goetz, for relator. John T. Madigan, Acting Director of Law, and Adam Loukx, General Counsel, for respondent. ***** PIETRYKOWSKI, J. {¶ 1} This matter is before the court on a "Complaint for Writ of Procedendo," filed by relator, Stephen Horoszewski. Relator seeks an order from this court compelling respondent, Judge Gene A. Zmuda, to rule on motions filed in Case No. CVF-04-18482, captioned Flower Hospital v. Stephen Horoszewski. Specifically, relator seeks a ruling on his motion to reassign the matter to Judge Francis X. Gorman or, in the alternative, on his motion to transfer the matter to the Lucas County Court of Common Pleas. {¶ 2} Relator filed his complaint on August 10, 2006. On August 18, 2006, respondent filed a motion to dismiss on grounds that the complaint is moot. Attached to the motion to dismiss was a copy of an opinion and judgment entry demonstrating that respondent had ruled on the motions in question. {¶ 3} Because respondent ruled on relator's outstanding motions, his writ of procedendo is moot. "Neither procedendo nor mandamus will compel the performance of a duty that has already been performed." State ex rel. Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 318, 2000-Ohio-335. As such, respondent's motion to dismiss relator's petition instanter is granted, and relator's petition for writ of procedendo is hereby dismissed as moot. Costs assessed to relator. PETITION DISMISSED. Peter M. Handwork, J. _______________________________ JUDGE Mark L. Pietrykowski, J. Dennis M. Parish, J. CONCUR. _______________________________ JUDGE _______________________________ JUDGE This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6. 2.
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