Bergandine v. Krueger

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[Cite as Bergandine v. Krueger, 2010-Ohio-3958.] COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT THOMAS A. BERGANDINE Petitioner -vsHONORABLE EVERETT H. KRUEGER Respondent : : : : : : : : : : JUDGES: Hon. Sheila G. Farmer, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. CASE NO. 10CAD050037 OPINION CHARACTER OF PROCEEDING: Petition for Writ of Procedendo JUDGMENT: PETITION DISMISSED DATE OF JUDGMENT ENTRY: August 19, 2010 APPEARANCES: For Petitioner: For Respondent: Thomas A. Bergandine, Pro Se 1737 W. William Street Delaware, OH 43015 Carol Hamilton O Brien Assistant Prosecuting Attorney 140 North Sandusky St. 3rd Floor Delaware, OH 43015 Delaware County, Case No. 10CAD050037 Patricia A. Delaney, J. {¶1} Petitioner, Thomas A. Bergandine, filed a petition for writ of procedendo. Petitioner requests Respondent, Judge Everett H. Krueger, be ordered to rule on motions Petitioner filed in the trial court. On June 4, 2010 Judge Krueger ruled on all pending motions. Respondent has filed a motion to dismiss the instant petition because the rulings have made the petition moot. {¶2} To be entitled to a writ of procedendo, a relator must establish 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 law. State ex rel. Miley v. Parrott, 77 Ohio St.3d 64, 65, 671 N.E.2d 24, 1996-Ohio-350, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d 899, 1995-Ohio-26. The Ohio Supreme Court in Miley noted, [p]rocedendo is an order from a court of superior jurisdiction to proceed to judgment: it does not attempt to control the inferior court as to what that judgment should be. Id. at 67 (citations omitted). {¶3} The Supreme Court has held procedendo will not issue where the requested relief has been obtained, [n]either procedendo nor mandamus will compel the performance of a duty that has already been performed. State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 2000-Ohio-335. {¶4} Because Judge Krueger has issued rulings on Petitioner s motions, the request for procedendo has become moot. For this reason, Respondent s motion to dismiss is granted. {¶5} Petitioner s request for writ of procedendo is dismissed. Delaware County, Case No. 10CAD050037 PETITION DISMISSED. COSTS TO PETITIONER. IT IS SO ORDERED. By: Patricia A. Delaney, J. Sheila G. Farmer, P.J. and John W. Wise, J. concur _____________________________ HON. PATRICIA A. DELANEY _____________________________ HON. SHEILA G. FARMER _____________________________ HON. JOHN W. WISE [Cite as Bergandine v. Krueger, 2010-Ohio-3958.] COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT THOMAS A. BERGANDINE Petitioner -vsHONORABLE EVERETT H. KRUEGER Respondent : : : : : : : : : CASE NO. 10CAD050037 JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the Petition for Writ of Procedendo is hereby dismissed. Costs taxed to Petitioner. _____________________________ HON. PATRICIA A. DELANEY _____________________________ HON. SHEILA G. FARMER _____________________________ HON. JOHN W. WISE

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