Jackson v. Fuerst, Unpublished Decision (2-25-1999)

OPINION Relator avers that he is the defendant in State v. Jackson, Cuyahoga County Court of Common Pleas Case No. CR-208756. Relator complains that respondent clerk stamped relator's "motion to perpetuate evidence and testimony via Civ.R. 27" ("motion to perpetuate") as "received for filing" rather than "filed." Relator asserts that the designation "received for filing" indicates that the motion to perpetuate has not been filed. Relator requests that this court compel respondent to file the motion to perpetuate.

Respondent has filed a motion to dismiss attached to which is the affidavit of Mark Lime, Assistant Deputy in Charge of the Clerk of Courts, Criminal Division. Mr. Lime avers that a motion received by mail is stamped "received for filing" and a motion received over the counter is stamped "filed." Respondent argues that relator does not have a clear legal right to have his motion stamped "filed."

Sua sponte, we convert the motion to dismiss to a motion for summary judgment because the motion relies on material outside the pleading. See Civ. R. 12 (B), 56. We also note that the docket reflects that the motion to perpetuate was filed on October 26, 1998. As a consequence, relator has received the relief which he requested and this action is moot.

Accordingly, we grant respondents motion for summary judgment. Relator to pay costs.

Writ denied.

ANN DYKE, J., CONCURS.

JAMES M. PORTER, ADMINISTRATIVE JUDGE.