[Cite as State ex rel. Fischer Asset Mgt., L.L.C. v. Scott, 2023-Ohio-3891.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO EX REL. FISCHER 

ASSET MANAGEMENT, LLC, :

Relator, :

No. 113237

v. :

JUDGE W. MONA SCOTT, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT GRANTED

DATED: October 24, 2023

Writ of Procedendo

Order No. 568635

Appearances:

Powers Friedman Linn, PLL, Robert G. Friedman, and 

Thomas P. Owen, for relator. 

Mark Griffin, Cleveland Director of Law, for respondent. 

SEAN C. GALLAGHER, J.:

Fischer Asset Management, LLC (“Fischer”), the relator, has filed a 

complaint for a writ of mandamus. Fischer seeks an order from this court that 

requires Judge W. Mona Scott, the respondent, to issue a writ of restitution and an 
order of eviction in the forcible entry and detainer action that is currently pending 

in Fischer Asset Mgt., LLC v. Martez D. Wells, Cleveland M.C. No. 2023-CVG004911. 

Although Fischer requests a writ of mandamus, we employ our plenary 

authority to sua sponte convert the request for a writ of mandamus into a complaint 

for procedendo. State ex rel. Dispatch Printing Co. v. Louden, 91 Ohio St.3d 61, 741 

N.E.2d 517 (2001). Procedendo shall issue when a court has either refused to render 

a judgment or has unnecessarily delayed entering judgment. State ex rel. R.W. 

Sidley, Inc. v. Crawford, 100 Ohio St.3d 113, 2003-Ohio-5101, 796 N.E.2d 929. 

“[P]rocedendo is more appropriate, since ‘an inferior court’s refusal or failure to 

timely dispose of a pending action is the ill a writ of procedendo is designed to 

remedy.’” State ex rel. Dehler v. Sutula, 74 Ohio St.3d 33, 35, 656 N.E.332 (1995), 

quoting State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 110, 637 N.E.2d 319 

(1994). For the following reason, we grant a peremptory writ of procedendo on 

behalf of Fischer.

I. Facts and Procedural History

The following facts are gleaned from the complaint for procedendo and 

the docket maintained in Fischer Asset Mgt., LLC v. Martez D. Wells, Cleveland 

M.C. No. 2023-CVG-004911:

1

1 This court is permitted to take judicial notice of court filings that are readily 

accessible from the internet. In re Helfrich, 5th Dist. Licking No. 13CA20, 2014-Ohio1933, ¶ 35, citing State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 

974 N.E.2d 516, ¶ 8, 10 (court can take judicial notice of judicial opinions and public 

records accessible from the internet).
(1) Fischer is the landlord of residential property located at 3161 West 

31st Street, Cleveland, Ohio, that is rented at the rate of $800 per 

month to a tenant;

(2) the tenant did not make monthly rental payments after March 

2023;

(3) on April 28, 2023, Fischer served the tenant with a “3 day notice to 

vacate” pursuant to R.C. 1923.04;

(4) on May 4, 2023, Fischer file a complaint for forcible entry and 

detainer;

(5) on June 30, 2023, a hearing was held at which time Fischer and the 

tenant entered into an agreement which provided that the tenant would 

be allowed to remain in possession of the rental property so long as past 

due rent was tendered in the amount of $2,000 by July 3, 2023, and 

$1,600 by July 26, 2023;

(6) tenant failed to make the agreed payments;

(7) on July 27, 2023, a magistrate issued a decision that recommended 

judgment for Fischer on the claim of forcible entry and detainer and 

writ of restitution;

(8) on July 27, 2023, Judge Scott approved and confirmed the 

magistrate’s decision and ordered judgment for Fischer on the claim of 

forcible entry and detainer and a writ of restitution;

(9) on July 31, 2023, Fischer filed a praecipe for a writ of restitution;

(10) on October 2, 2023, the underlying action was continued, at the 

request of Judge Scott, to December 11, 2023.

II. Legal Analysis

To be entitled to a writ of procedendo, Fischer must demonstrate a clear 

legal right to require Judge Scott to proceed, a clear legal duty on the part of Judge 

Scott to proceed, and the lack of an adequate remedy in the ordinary course of the 

law. State ex rel. Miley v. Parrott, 77 Ohio St.3d 64, 671 N.E.2d 24 (1996); State ex 

rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 650 

N.E.2d 899 (1995). If it appears beyond doubt that Fischer is entitled to a writ of 

procedendo, a peremptory writ shall be issued. State ex rel. Stern v. Mascio, 81 Ohio 
St.3d 297, 691 N.E.2d 253 (1998); State ex rel. Findlay Publishing Co. v. Schroeder, 

76 Ohio St.3d 580, 669 N.E.2d 835, 839 (1996). 

Forcible entry and detainer actions are governed by R.C. Chapter 1923. 

The purpose of the forcible entry and detainer statutes is to provide a summary, 

extraordinary, and speedy method for the recovery of possession of real property. 

Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 131, 423 N.E.2d 177 

(1981); 24 Ohio Jurisprudence 2d 455, Forcible Entry and Detainer, Section 2.

“‘[G]iven its summary nature, the drafters of the Rules of Civil Procedure were 

careful to avoid encrusting this special remedy with time consuming procedure 

tending to destroy its efficacy.’” Miele v. Ribovich, 90 Ohio St.3d 439, 441, 739 

N.E.2d 333 (2000), quoting Jackson at 131.

R.C. 1923.02(A)(9) creates a cause of action for forcible entry and 

detainer “[a]gainst tenants who have breached an obligation imposed upon them by 

a written rental agreement.” It is undisputed that the tenant breached the terms of 

the lease by failing to pay rent. R.C. 1923.04(A) requires the landlord give the tenant 

notice of the eviction action “three or more days before beginning the action, by 

certified mail, return receipt requested, or by handing a written copy of the notice to 

the defendant in person, or by leaving it at the defendant’s usual place of abode or 

at the premises from which the defendant is sought to be evicted.” Fischer provided 

the tenant with the required three-day notice. Also, the facts demonstrate that 

Fischer complied with all of the requirements of R.C. 1923.01 et seq. for immediate 

possession of the real property currently occupied by the tenant. Fischer is entitled 
to a peremptory writ of procedendo that requires Judge Scott to immediately issue 

a writ of restitution and an order of eviction.

III. Duties Under R.C. Chapter 1923

R.C. 1923.09(A) provides that if the judge finds the complaint for 

forcible entry and detainer to be true, the judge shall render a general judgment 

against the defendant, in favor of the plaintiff, for restitution of the premises and 

costs of suit. Once again, this court is perplexed by the conduct of Judge Scott that 

seems to thwart the purpose of R.C. Chapter 1923 by not providing a summary, 

extraordinary, and speedy method for the recovery of possession of Fischer’s real 

property. In fact, seven prior complaints for mandamus or procedendo, plus an 

appeal, have been filed with this court in the past year that demonstrate Judge 

Scott’s delay in issuing writs of restitution and orders of evictions: 

(1) Shaker House LLC v. Daniel, 8th Dist. Cuyahoga No. 111183, 2022-

Ohio-2778 (8/11/22 — trial court judgment reversed, and Judge Scott 

ordered to grant forcible entry and detainer to landlord); 

(2) State ex rel. Shaker House, LLC v. Scott, 8th Dist. Cuyahoga No. 

111952 (9/29/22 — complaint for mandamus voluntarily dismissed 

because forcible entry and detainer granted in Cleveland M.C. No. 21-

CVG-008203); 

(3) State ex rel. Glenville Plaza Holding, LLC v. Scott, 8th Dist. 

Cuyahoga No. 112264 (2/15/23 — complaint for mandamus declared 

moot because forcible entry and detainer granted in Cleveland M.C. No. 

2022-CVG-007026); 

(4) State ex rel. Shaker Hts. Apts. Owner, LLC v. Scott, 8th Dist. 

Cuyahoga No. 112587, 2023-Ohio-1901 (6/2/23 — complaint for 

procedendo and mandamus declared moot because forcible entry and 

detainer adjudicated in 28 Cleveland M.C. cases); 

(5) State ex rel. Shaker Hts. Apts. Owner v. Scott, 8th Dist. Cuyahoga 

No. 112769, 2023-Ohio-2589 (7-21-23 — procedendo and mandamus 

ordered to resolve forcible entry and detainer action in Cleveland M.C. 

No. 2023-CVG-002960); 
(6) State ex rel. Cleveland 2, LLC v. Scott, 8th Dist. Cuyahoga No. 

112961, 2023-Ohio-3066 (8/25/23 — procedendo and mandamus 

ordered to resolve forcible entry and detainer action in Cleveland M.C. 

No. 2023-CVG-003640); 

(7) State ex rel. AIY Properties, Inc. v. Scott, 8th Dist. Cuyahoga No. 

112962 (8/7/23 — procedendo and mandamus moot because tenant 

vacated premises); 

(8) State ex rel. AIY Properties, Inc. v. Scott, 8th Dist. Cuyahoga No. 

113029, 2023-Ohio-33484 (9/25/23 — procedendo and mandamus 

ordered to resolve forcible entry and detainer action in Cleveland M.C. 

No. 2023-CVG-003825).

The continued conduct of Judge Scott, by failing to provide a summary, 

extraordinary, and speedy method for the recovery of possession of real property, in 

forcible entry and detainer actions, may be the result of the failure to appreciate the 

statutory requirements of R.C. Chapter 1923 or a misunderstanding of the purpose 

of R.C. Chapter 1923 by Judge Scott’s staff. Regardless, Judge Scott is placed on 

notice that the continued delay in granting writs of restitution and orders of eviction, 

when mandated, may result in this court assuming such failures to act are 

intentional.2

2 Canons 1 and 2 of the Ohio Code of Judicial Conduct requires all judges to uphold and 

promote independence, integrity, and impartiality of the judiciary, and to avoid 

impropriety and the appearance of impropriety. The implementation of judicial discipline 

is to protect the general public, guarantee the evenhanded administration of justice, and 

maintain the public’s confidence in the integrity of the judiciary. Disciplinary Counsel v. 

Carr, 170 Ohio St.3d 401, 2022-Ohio-3633, 214 N.E.3d 496; Disciplinary Counsel v. 

Horton, 158 Ohio St.3d 76, 2019-Ohio-4139, 140 N.E.3d 561; Disciplinary Counsel v. 

Burge, 157 Ohio St.3d 203, 2019-Ohio-3205, 134 N.E.3d 153. The continued reluctance of 

Judge Scott, to provide a summary, extraordinary, and speedy method for the recovery of 

possession of real property, in forcible entry and detainer actions, may result in the referral 

of her conduct to the Disciplinary Counsel of the Board of Professional Conduct for 

violation of the Code of Judicial Conduct and the Rules of Professional Conduct.
IV. Conclusion

We sua sponte grant a peremptory writ of procedendo and order that 

Judge Scott immediately issue a writ of restitution and an order of eviction on behalf 

of Fischer in Fischer Asset Mgt., LLC v. Martez D. Wells, Cleveland M.C.

No. 2023-CVG-004911. 

Costs to Judge Scott. The court directs the clerk of courts to serve all 

parties with notice of this judgment and the date of entry upon the journal as 

required by Civ.R. 58(B). In addition, the clerk of courts shall forthwith deliver a 

copy of this opinion to Judge Scott and shall note upon the docket the date and time 

of delivery of the opinion to Judge Scott.

Peremptory writ of procedendo granted. 

______________________

SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, P.J., and

MARY J. BOYLE, J., CONCUR