COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72264 PETER PAUL VICEROY : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION EVE ANN LICYCGIEWICZ : : DEFENDANT-APPELLEE : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 19, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-318452. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Peter Paul Viceroy, #303-341 Post Office Box 69 London, Ohio 43140-0060 Pro se For Defendant-appellee: Eve Ann Licygiewicz, pro se 7300 Cedar Post Road, Apt. F-14 Liverpool, New York 13088-7300 -2- JAMES D. SWEENEY, J.: Plaintiff-appellant Peter Paul Viceroy ( Viceroy ) appeals from the trial court's action dismissing his complaint for failing to state a claim upon which relief may be granted. See Civ.R. 12(B)(6). For the reasons adduced below, we dismiss the notice of appeal as moot. A review of the record on appeal indicates that Viceroy is lawfully incarcerated in an Ohio prison on a criminal conviction for having feloniously assaulted his former wife with a firearm. See State v. Viceroy (May 9, 1996), Cuyahoga App. No. 68890, unreported. While incarcerated, on May 8, 1995, Viceroy's mother died. Appellant claimed that as a result of the death, he had given his power of attorney for the purpose of handling the mother's funeral and burial arrangements to his daughter, defendant-appellee Eve Ann Licygiewicz: the daughter denies that she ever received the power of attorney, written or otherwise. Appellant claimed to have contacted appellee to discuss pertinent burial arrangements. Appellant contends that a dispute arose over whether to embalm and bury the remains (as appellant wished) or cremate the decedent and then bury the cremated remains (as appellee allegedly wished due to financial concerns). Appellant concedes that he subsequently agreed to cremation, but on the condition that the cremated remains be buried in the ground as quickly as possible. See Appellant's brief at 2. Appellant further contends that as a result of the delay in burying the cremated remains, which appellant believed to be unwarranted and -3- not in keeping with the power he had given his daughter, he contacted a friend, John D. Spisak, in December of 1995, so as to have this friend pay for the interment of the decedent's ashes. Appellant claims that appellee would not allow the funeral home handling the decedent's arrangements to recognize Mr. Spisak's authority. As a result, appellant filed the action at bar on November 8, 1996, entitled Motion for Court Order to Rescind Power of Attorney. The prayer for relief was to cancel his daughter's alleged power of attorney over the funeral and burial arrangements and have his mother's cremated remains laid to rest underground. In substance, appellant seeks a declaratory judgment voiding a power of attorney so that his mother could be buried as quickly as possible following the conclusion of the action. Appellee filed on December 2, 1996, a motion to dismiss the action alleging, inter alia, failure to state a claim upon which relief may be granted. In this motion, appellee alleged that she never had been given appellant's power of attorney. Attached to this motion was a copy of the services invoice for the funeral home, dated May 8, 1995, which indicated that the decedent was to be cremated and the ashes buried at a total cost of $1,104.50, including state sales tax on the vault. Also in this motion, appellee mentions that she is making monthly payments on the funeral bill and that the amount is expected to be paid off in approximately ten months1. 1Reading the parties' arguments, it is apparent that the heart of the matter is that appellant wanted his mother's remains to receive a proper burial as soon as possible, but the financial ability of the appellee to pay for the services was circumspect at the time, thereby requiring appellee, who took on the -4- Without opposition, the trial court, using a half-sheet status form entry without elucidation or lengthy explanation, granted the motion to dismiss pursuant to Civ.R. 12(B)(6) on February 26, 1997. The appellant filed his notice of appeal from that motion ruling on April 1, 1997. While this appeal has been pending, appellee has filed on September 15, 1997 a motion to dismiss the appeal with attachments from the funeral home indicating that the decedent's cremated remains were buried in Holy Cross Cemetery in Cuyahoga County on August 5, 1997 at 1:00 p.m., and the funeral home's bill for services was paid in full. Appellant presents three assignments of error. I WHEN A TRIAL COURT DISMISSES A CLAIM UPON WHICH RELIEF CAN BE GRANTED, AND WHERE MATERIAL FACTS ARE IN DISPUTE BY THE PARTIES INVOLVED, A TRIAL COURT VIOLATES THE RELATOR'S RIGHTS AS PROVIDED FOR BY OHIO CIVIL RULE 12(B) AND CIVIL RULE 56: AS WELL AS HIS/HER(S) RIGHT TO PROCEDURE (SIC) DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING TO DISPOSE OF THE MATERIAL FACTS IN DISPUTE. II THE TRIAL COURT ERRED WITH PREJUDICE BY DISMISSING THE CAUSE OF ACTION FILED AGAINST DEFENDANT, WHEN THE TRIAL COURT KNEW OR SHOULD HAVE KNOWN THAT THE PLAINTIFF WAS PRECLUDED FROM FILING A REBUTTAL TO THE DEFENDANT'S responsibility of making the arrangements with the funeral home, to make time payments. The funeral home operators would not release the remains of the decedent until they were paid in full for services rendered. The appellant, naturally sensing an urgency to have his mother buried, sought to have his friend obtain the power of attorney to run the funeral arrangements and provide payment. -5- MOTION TO DISMISS, DUE TO THE INTIMIDATION BY PRISON OFFICIALS AND INTERFERENCE BY THE DEFENDANT'S CEASE TO CORRESPOND ORDER PLACED AGAINST THIS PLAINTIFF BY PRISON OFFICIALS. III THE CASE SHOULD BE REVERSED WHEN THE DEFENDANT/APPELLANT HAS MADE MANY REPRESENTATIONS TO THE LOWER COURT THAT IN WHICH (SIC) WERE PERJURIED (SIC) TESTIMONY. The trial court's ruling on the appellee's motion to dismiss the self-styled declaratory judgment complaint need not be addressed at this juncture since the relief prayed for, the voiding of the limited power of attorney so as to effect the speedy burial of appellant's deceased mother, has been achieved through the progression of events subsequent to the trial court's order dismissing the case. Appellant's mother's cremated remains have been laid to rest. The limited power of attorney has expired by its own terms upon the interment of the mother's remains. The issue of a funeral and interment of the mother's remains, and the power of attorney to effectuate same, is incapable of repetition. No money damages are prayed for by appellant. Accordingly, these assignments, which argue the validity of the trial court's dismissal order, are moot. See State ex rel. Beacon Journal Publishing Co. v. Donaldson (1992), 63 Ohio St.3d 173, 175 (For a mootness determination, a case is capable of repetition where there is a reasonable expectation that the same complaining party will be subjected to the same action again.); State ex rel. Bolin v. Ohio Environmental Protection Agency (Summit, 1992), 82 Ohio App.3d 410, 415 (Declaratory relief requires the existence of a justiciable -6- issue or controversy.); James A. Keller, Inc. v. Flaherty (Franklin, 1991), 74 Ohio App.3d 788 (Where subsequent events render the appeal to be academic and ineffectual, and incapable of repetition, the appeal is moot.); Wagner v. City of Cleveland (Cuyahoga, 1988), 62 Ohio App.3d 8, 13 ( Actions become moot when resolution of the issues presented is purely academic and will have no practical effect on the legal relations between the parties. ); Johnson v. Bureau of Motor Vehicles (December 19, 1991), Cuyahoga App. No. 59375, unreported, 1991 WL 271355, at 5 (Where relief is unavailable, the issue therein is moot.). Notice of appeal dismissed as moot. -7- It is ordered that appellee recover of appellant her costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. LEO M. SPELLACY, P.J., and KENNETH A. ROCCO, J., CONCUR. ___________________________________ JAMES D. SWEENEY JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .