Opinion · Ohio Supreme Court

State ex rel. Nelson v. Russo

89 Ohio St. 3d 227

Type
Opinion
Court
Ohio Supreme Court
Jurisdiction
Ohio
Date
2000-06-28
Topic
general

finding appellate court could have taken judicial notice of mootness of writ action, and further noting an event that causes a case to be moot may be demonstrated by extrinsic evidence outside the record | an event that causes an action to become moot may be demonstrated by extrinsic evidence outside the record | “Ohio courts may take judicial notice in ‘writ action[s] without converting * * * [a] dismissal motion to a motion for summary judgment.’ ” | “Ohio courts may take judicial notice in ‘writ action[s] without converting * * * [a] dismissal motion to a motion for summary judgment.’ ” | “Ohio courts may take judicial notice in ‘writ action[s] without converting * * * [a] dismissal motion to a motion for summary judgment.’ ” | “Ohio courts may take judicial notice in ‘writ action[s] without converting * * * [a] dismissal motion to a motion for summary judgment.’ ” | "the court of appeals could have taken judicial notice of the mootness of Nelson's writ action without converting Judge Russo's dismissal motion to a motion for summary judgment" | an appellate court may take judicial notice that a writ action is moot | the failure to properly convert the respondent- judge’s dismissal motion to a summary judgment motion is harmless as the court of appeals can take judicial notice of various items making the case moot | the failure to properly convert the respondent- judge’s dismissal motion to a summary judgment motion was harmless as the court of appeals could take judicial notice of various items making the case moot | appellate court may take judicial notice that a writ action is moot | appellate court may take judicial notice that a writ action is moot

Citator

Cited by
30 opinions
[This opinion has been published in Ohio Official Reports at
89 Ohio St.3d 227 
.]




    THE STATE EX REL. NELSON, APPELLANT, v. RUSSO, JUDGE, APPELLEE.
              [Cite as State ex rel. Nelson v. Russo,
2000-Ohio-141 
.]
Mandamus sought to compel common pleas court judge to enter a judgment on
        relator’s postconviction relief petition—Court of appeals’ denial of writ
        affirmed.
        (No. 99-2133—Submitted April 10, 2000—Decided June 28, 2000.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 76862.
                                  __________________
        {¶ 1} In September 1996, appellant, Carl A. Nelson, Jr., filed a petition for
postconviction relief. In August 1999, Nelson filed a complaint in the Court of
Appeals for Cuyahoga County for a writ of mandamus or, alternatively, a writ of
procedendo to compel appellee, Cuyahoga County Court of Common Pleas Judge
Nancy M. Russo, to enter a judgment on his postconviction relief petition. Judge
Russo filed a motion to dismiss Nelson’s action and attached copies of her
September 1999 judgment denying Nelson’s petition for postconviction relief and
findings of fact and conclusions of law. Without giving Nelson notice, the court of
appeals sua sponte converted Judge Russo’s motion to a motion for summary
judgment, granted it, and denied the writ based on mootness.
        {¶ 2} This cause is now before the court upon an appeal as of right.
                                  __________________
        Carl A. Nelson, Jr., pro se.
        William D. Mason, Cuyahoga County Prosecuting Attorney, and Diane
Smilanick, Assistant Prosecuting Attorney, for appellee.
                                  __________________
                             SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 3} Nelson asserts that the court of appeals erred in denying the writ
because it improperly sua sponte converted Judge’s Russo’s motion to dismiss to a
motion for summary judgment without notifying him of the conversion and giving
him an opportunity to respond. Under Civ.R. 12(B) and 56(C), a court must notify
all parties at least fourteen days before the time fixed for hearing when it converts
a motion to dismiss for failure to state a claim into a motion for summary judgment.
Petrey v. Simon (1983),
4 Ohio St.3d 154 
, 4 OBR 396,
447 N.E.2d 1285 
, paragraphs
one and two of the syllabus. Based on Petrey, the court of appeals erred in
converting Judge Russo’s motion without notifying the parties.
       {¶ 4} Nevertheless, this error was harmless because the court of appeals
could have taken judicial notice of the mootness of Nelson’s writ action without
converting Judge Russo’s dismissal motion to a motion for summary judgment.
State ex rel. Findlay Publishing Co. v. Schroeder (1996),
76 Ohio St.3d 580, 581 
,
669 N.E.2d 835, 837 
, citing State ex rel. Neff v. Corrigan (1996),
75 Ohio St.3d 12, 16 
,
661 N.E.2d 170, 174 
; see, also, State ex rel. The V Cos. v. Marshall (1998),
81 Ohio St.3d 467, 471 
,
692 N.E.2d 198, 202 
. In fact, “an event that causes a case to
be moot may be proved by extrinsic evidence outside the record.” Pewitt v. Lorain
Correctional Inst. (1992),
64 Ohio St.3d 470, 472 
,
597 N.E.2d 92, 94 
.
       {¶ 5} The entry and findings of fact and conclusions of law attached to
Judge Russo’s dismissal motion established that Judge Russo had performed the
requested act. Neither mandamus nor procedendo will compel the performance of
a duty that has already been performed. State ex rel. Grove v. Nadel (1998),
84 Ohio St.3d 252, 253 
,
703 N.E.2d 304, 305 
.
       {¶ 6} Based on the foregoing, we affirm the judgment of the court of
appeals.
                                                                 Judgment affirmed.




                                         2
                            January Term, 2000




      MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                           __________________




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