[Cite as Harris v. Smith,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: DWAYNE HARRIS : W. Scott Gwin, P.J. : John W. Wise, J. Plaintiff : Julie A. Edwards, J. : -vs- : Case No. 2011CA00204 : : KEITH SMITH, et al., : OPINION

Defendants

CHARACTER OF PROCEEDING: Criminal Appeal from Stark County Court of Common Pleas Case No. 2010CV0165D

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: January 17, 2012

APPEARANCES:

For Plaintiff For Defendant Keith Smith

DWAYNE HARRIS LAWRENCE BABICH P.O. Box 8107 Assistant Attorney General Mansfield, Ohio 44901 Criminal Justice Section 150 E. Gay Street, 16th Floor Columbus, Ohio 43215

For Defendant Judge James DeWeese

JILL COHRAN Assistant Richland County Prosecutor 38 South Park Street, 2nd Floor Mansfield, Ohio 44902 [Cite as Harris v. Smith,

.]

Edwards, J.

{¶1} Plaintiff, Dwayne Harris, has filed a “Request for Writ of Procedendo Ad

Judicium” asking this Court to order Defendants, Keith Smith and Judge DeWeese to

rule on outstanding motions in his trial court case.

{¶2} Initially, we find this cause of action has not been filed in the proper venue.

All of the conduct which is the subject of the complaint occurred in Richland County.

Plaintiff filed the complaint in Stark County. There is no conduct alleged to have

occurred in Stark County and no defendant resides in Stark County. Because this Court

also has jurisdiction to review original actions in Richland County, we will address the

merits of the complaint.

{¶3} We find Defendant Smith, who is the warden of the Mansfield Correctional

Institution, is not an appropriate party to this case. Writs of procedendo are limited to a

superior court ordering a lower court to proceed, “[T]he limited purpose of the writ is to

require a lower court to go forward ‘when a court has either refused to render a

judgment or has unnecessarily delayed proceeding to judgment.’ State ex rel. Miley v.

Parrott (1996),

,

.” State ex rel. Lemons v. Kontos

, 2 (Ohio App. 11 Dist.). Defendant Smith is not a court or a judge of

a court. For this reason, the complaint is dismissed as to Defendant Smith.

{¶4} We now turn to the complaint as it relates to Judge DeWeese. The

Supreme Court has held that a judge’s performance of the requested act makes the

complaint in procedendo moot. State ex rel. Hazel v. Bender,

,

, 115 (Ohio,2011). Subsequent to the filing of the instant complaint,

Defendant DeWeese ruled on outstanding motions by issuing a final, appealable order Stark County App. Case No. 2011CA00204 3 in the underlying case which Plaintiff has appealed to this Court. For this reason, we

find the complaint is moot as it relates to Defendant DeWeese.

{¶5} For these reasons, we find the complaint in procedendo lacks merit and

dismiss the complaint.

By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/ads1212 [Cite as Harris v. Smith,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

DWAYNE HARRIS : : Plaintiff : : : -vs- : JUDGMENT ENTRY : KEITH SMITH, et al. : : Defendants : CASE NO. 2011CA00204

For the reasons stated in our accompanying Memorandum-Opinion on file, the

Complaint is dismissed. Costs assessed to plaintiff.

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JUDGES