State ex rel. Hillman v. Holbrook
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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Hillman v. Holbrook, Slip Opinion No. 2011-Ohio-3090.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2011-OHIO-3090 THE STATE EX REL. HILLMAN, APPELLANT, v. HOLBROOK, JUDGE, APPELLEE. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Hillman v. Holbrook, Slip Opinion No. 2011-Ohio-3090.] Appeal from dismissal of a petition for a writ of procedendo Acts requested had already been performed Judgment affirmed. (No. 2011-0427 Submitted June 21, 2011 Decided June 29, 2011.) APPEAL from the Court of Appeals for Franklin County, No. 10AP-552. __________________ Per Curiam. {¶ 1} We affirm the judgment of the court of appeals denying the writ of procedendo of appellant, Robert L. Hillman, to compel appellee, Franklin County Court of Common Pleas Judge Michael J. Holbrook, to rule on certain motions in Hillman v. Edwards, Franklin C.P. No. 09CVA09-13707. Judge Holbrook ruled on the motions on September 9, 2010. His performance of the acts requested by Hillman rendered his procedendo claim moot. See State ex rel. Howard v. Skow, 102 Ohio St.3d 423, 2004-Ohio-3652, 811 N.E.2d 1128, ¶ 9. SUPREME COURT OF OHIO {¶ 2} Moreover, the court of appeals did not err in denying Hillman s motion for an order for its magistrate to show cause why she should not be held in contempt of court by granting Judge Holbrook s motion for leave to file his answer to Hillman s complaint in procedendo instanter. There is no evidence that the magistrate violated any court order in her ruling. And even had the court of appeals determined that the judge did not submit a timely response to the complaint, a default judgment in Hillman s favor on his procedendo claim would not have been appropriate. See State ex rel. Winnick v. Gansheimer, 112 Ohio St.3d 149, 2006-Ohio-6521, 858 N.E.2d 409, ¶ 7; Civ.R. 55(D) (a default judgment may be entered against the state only if the claimant establishes his claim or right to relief by evidence satisfactory to the court ). {¶ 3} We deny Hillman s motion to proceed to judgment pursuant to S.Ct.Prac.R. 6.7, because although appellee failed to file a timely merit brief, reversal of the court of appeals judgment is not warranted because Hillman s brief does not reasonably appear[] to sustain reversal. See State ex rel. Keith v. McMonagle, 106 Ohio St.3d 61, 2005-Ohio-3669, 831 N.E.2d 433, fn. 1. Judgment affirmed. O CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. __________________ Robert L. Hillman, pro se. ______________________ 2
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