[Cite as Gabel v. Ambrose, 2013-Ohio-3256.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99902
KERMIT GABEL
RELATOR
vs.
JUDGE DICK AMBROSE
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus and/or Procedendo
Motion No. 465789
Order No. 466639
RELEASE DATE: July 24, 2013
FOR RELATOR
Kermit Gabel, Pro Se
No. 551160
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43302
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Kermit Gabel (“Gabel”) has filed a complaint for writ of mandamus and/or
procedendo. Gabel seeks an order from this court that requires Judge Dick Ambrose to
render rulings on motions filed in Cuyahoga C.P. Nos. CR-510594, CR-509892 and
CR-504062. Gabel indicates motions were filed on June 20, 2008, September 10, 2012,
and October 12, 2012; however, he does not indicate in which case(s) the motions were
filed. It is unclear exactly which motions are at issue in this original action, however,
Gabel generally refers to “motions to correct his sentence for void sentence” and “several
other procedural motions.” Judge Ambrose has moved for summary judgment, which
Gabel has not opposed, and we grant for the reasons that follow.
{¶2} Gabel’s complaint is defective in several respects that would warrant
dismissal of the complaint. Civ.R. 10(A); Jordan v. Cuyahoga Cty. Court of Common
Pleas, 8th Dist. No. 94578, 2011-Ohio-1813, ¶ 3 (failure to include addresses of the
parties and failure to caption the action in accordance with R.C. 2731.04 may be grounds
for dismissal). Further, the complaint is moot.
{¶3} Gabel is seeking rulings on motions that have been filed in the three cases
referenced above. We note, however, that Cuyahoga C.P. Nos. CR-504062 and
CR-509892 were both previously dismissed. Nonetheless, Judge Ambrose has submitted
journal entries that indicate he has ruled on motions that Gabel had filed in all three cases.
In CR-504062, Judge Ambrose denied Gabel’s motions to correct sentence filed on
September 10, 2012, October 12, 2012, and November 5, 2012, and denied his motion for
summary judgment that was filed on December 12, 2012. In CR-509892 and
CR-510594, Judge Ambrose denied Gabel’s motions to amend his motions to correct
sentence that were filed on November 5, 2012. Gabel has not disputed Judge Ambrose’s
position that these rulings rendered Gabel’s complaint moot. Accordingly, Gabel is not
entitled to a writ of mandamus or procedendo. State ex rel. Culgan v. Kimbler, 132 Ohio
St.3d 480, 2012-Ohio-3310, 974 N.E.2d 88 (a writ of mandamus will not issue to compel
an act already performed); see also State ex rel. Pettway, 8th Dist. No. 99259,
2013-Ohio-1567, ¶ 2.
{¶4} Judge Ambrose’s motion for summary judgment is granted and Gabel’s
complaint for mandamus and/or procedendo is denied. Relator to pay costs. Costs
waived. The court directs the clerk of court to serve all parties with notice of this
judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶5} Writ denied.
KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR