[Cite as Albino v. Clerk of Courts, Stark Cty. Probate Court, 2012-Ohio-235.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANGEL L. ALBINO-ALBINO
Relator
-vs-
CLERK OF COURTS, PROBATE COURT OF STARK COUNTY
Respondent
JUDGES:
Hon. William B. Hoffman, P .J.
Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
Case No. 2011 CA 00205
OPINION
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: January 23, 2012
APPEARANCES:
For Relator For Respondent
ANGEL L. ALBINO-ALBINO JOHN D. FERRERO
PRO SE PROSECUTING ATTORNEY
MANSFIELD CORRECTIONAL INST. AMY A. SABINO
Post Office Box 788 ASSISTANT PROSECUTOR
Mansfield, Ohio 44901 110 Central Plaza South, Suite 510
Canton, ohio 44702
Wise, J.
{¶1} Relator, Angel L. Albino-Albino, has filed a Petition for Writ of Mandamus
requesting a writ be issued which would require Respondent to accept an objection to a
petition for adoption for filing. Respondent, Judge Dixie Park, has filed a Motion to
Dismiss.
{¶2} Relator presented an objection to a petition for adoption to the Clerk of the
Probate Court. The objection was returned to Respondent with a letter indicating the
objection would not be filed without a filing fee. The letter also advised Respondent that
the filing fee would not be waived under any circumstances.
{¶3} Once the instant Petition was filed, Respondent through counsel agreed to
allow Relator to file an objection without advancing the filing fee. Relator in turn did file
the objection with Respondent on October 20, 2011.
{¶4} For a writ of mandamus to issue, the relator must have a clear legal right
to the relief prayed for, the respondents must be under a clear legal duty to perform the
requested act, and relator must have no plain and adequate remedy in the ordinary
course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,
451 N.E.2d 225.
{¶5} The Supreme Court has held, “Neither procedendo nor mandamus 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.” State ex rel. Kreps v.
Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668.
{¶6} Because the relief requested in the Petition has been performed, we find
the Petition to be moot. For this reason, Respondent’s Motion to Dismiss is granted.
The request for the issuance of a writ of mandamus is denied.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
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___________________________________
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JUDGES
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANGEL L. ALBINO-ALBINO :
:
Relator :
:
-vs- : JUDGMENT ENTRY
:
CLERK OF COURTS, PROBATE :
COURT OF STARK COUNTY :
:
Respondent : Case No. 2011 CA 00205
For the reasons stated in our accompanying Memorandum-Opinion,
Respondent’s Motion to Dismiss is granted. The request for the issuance of a writ of
mandamus is denied.
Court costs are waived.
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JUDGES