[Cite as Foster v. Friedland, 2016-Ohio-7230.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104718

NATHANIEL FOSTER 

RELATOR 

vs. 

CAROLYN FRIEDLAND, JUDGE

RESPONDENT 

JUDGMENT:

WRIT DENIED 

Writ of Mandamus 

Motion No. 498872 

Order No. 500097 

RELEASE DATE: October 4, 2016 
FOR RELATOR

Nathaniel Foster, pro se 

Inmate No. 369-398 

Richland Correctional Institution 

P.O. Box 8107 

Mansfield, Ohio 44901 

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: James E. Moss 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
SEAN C. GALLAGHER, J.: 

{¶1} On July 11, 2016, the relator, Nathaniel Foster, commenced this mandamus 

action against the respondent, Judge Carolyn Friedland, to compel the judge to issue a 

ruling on his January 26, 2016 motion to vacate a void judgment that Foster filed in the 

underlying case, State v. Foster, Cuyahoga 

C.P. No. CR-98-370295-B. On August 8, 2016, the respondent judge moved for 

summary judgment on the grounds of mootness and procedural defects. Attached to the 

dispositive motion is a copy of a certified, file-stamped 

August 4, 2016 journal entry that denies the subject motion. The respondent also 

argues that relator’s complaint is defective because the caption does not include “State ex 

rel.” Foster never filed a response. For the following reasons, this court grants the 

judge’s motion for summary judgment. 

{¶2} First, the petition is defective because it is improperly captioned. Foster 

styled this petition as “Nathaniel Foster v. Carolyn Friedland, Judge.” R.C. 2731.04 

requires that an application for a writ of mandamus “must be by petition, in the name of 

the state on the relation of the person applying.” This failure to properly caption a 

mandamus action is sufficient grounds for denying the writ and dismissing the petition. 

Maloney v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226, 181 N.E.2d 270 

(1962). 
{¶3} Moreover, the attached journal entry established that the judge fulfilled her 

duty to decide the motion and that Foster received his requested relief, a ruling.1

 

Therefore, this mandamus action is moot. 

{¶4} Accordingly, this court grants the judge’s motion for summary judgment 

and denies the application for a writ of mandamus. Respondent to pay costs; costs 

waived. This court directs the clerk of courts to serve all parties notice of this judgment 

and its date of entry upon the journal as required by Civ.R. 58(B). 

{¶5} Writ denied. 

SEAN C. GALLAGHER, JUDGE 

EILEEN T. GALLAGHER, P.J., and 

ANITA LASTER MAYS, J., CONCUR 

 1The requisites for mandamus are well established: (1) the relator must have a clear legal right 

to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief 

and (3) there must be no adequate remedy at law. Additionally, although mandamus may be used to 

compel a court to exercise judgment or to discharge a function, it may not control judicial discretion, 

even if that discretion is grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 

914 (1987).