[Cite as State ex rel. Allan v. Kelley, 2023-Ohio-3892.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO EX REL., RAIDA : ALLAN, : No. 113257 Relator, : v. : JUDGE KEVIN J. KELLEY, : Respondent.
JOURNAL ENTRY AND OPINION
JUDGMENT: COMPLAINT DISMISSED DATED: October 20, 2023
Writ of Procedendo Order No. 568753
Appearances:
RaslanPla & Company, LLC, Jorge Luis Pla, Erika Molnar, and Nadia R. Zaiem, for relator.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Matthew T. Fitzsimmons IV, Assistant Prosecuting Attorney, for respondent.
ANITA LASTER MAYS, A.J.:
Relator, Raida Allan, seeks an emergency writ of procedendo directing
respondent, Judge Kevin J. Kelley, to rule on several motions that have been
pending, some for approximately one year, before a trial scheduled to begin October 23, 2023. For the reasons that follow, we sua sponte dismiss the complaint
as moot.
I. Background
Relator filed the instant complaint for writ of procedendo on
October 11, 2023. There, she laid out a complicated procedural history of three
common pleas court cases that stem from the divorce of relator and her former
husband. This included the division of assets, including businesses that operated
gas stations and the assets associated with the operations. This impacted the
businesses and her former husband’s brother, who participated in the case. Along
with the divorce case filed in the domestic relations division of the common pleas
court, relator filed a fraudulent transfer action in the general division of the common
pleas court currently pending before respondent in Cuyahoga C.P. No. CV-18-
907570. One of the businesses also filed a declaratory judgment action, Cuyahoga
C.P. No. CV-19-922868, which was consolidated with the fraudulent transfer action.
Much of this procedural history is not relevant to the instant dispute, but it provides
a backdrop to the ongoing litigation and the respondent’s duty to rule on motions
pending in these two cases that have been consolidated for decision. A more detailed
history of these cases and the dispute between these parties can be found in Allan v.
Allan, 8th Dist. Cuyahoga Nos. 110177 and 110179, 2022-Ohio-1488.
Relator’s complaint alleged that two weeks before a scheduled trial on
October 23, 2023, respondent had yet to rule on the following motions, some of
which had been pending for approximately one year: • [Relator’s] motion to bifurcate and stay, filed October 13, 2022, in Cuyahoga C.P. No. CV-19-922868;
• [Relator’s] motion to strike defendants Qais Allan, 871 Rocky River Drive, Inc. and Pearl Road, Inc.’s motion to dismiss, filed October 19, 2022, in Cuyahoga C.P. No. CV-18-907570;
• [Relator’s] motion for [a witness] to appear remotely, filed November 11, 2022, in Cuyahoga C.P. No. CV-18-907570;
• [Relator’s] motion for extension of time to extend expert discovery deadline, docketed November 28, 2022, in Cuyahoga C.P. No. CV-18-907570;
• [Relator’s] motion to read the relevant portions of Kurt Tober’s deposition into the record at trial, docketed January 9, 2023, in Cuyahoga C.P. No. CV- 18-907570, and unopposed;
• [Relator’s] motion to read the relevant portions of Niel Butch’s deposition into the record at trial, docketed January 9, 2023, in Cuyahoga C.P. No. CV- 18-907570, and unopposed;
• [Relator’s] motion in limine to limit or exclude evidence that contradicts the Eighth Appellate District’s opinion in Allan v. Allan, 8th Dist. Cuyahoga Nos. 110177, 110179, 2022-Ohio-1488, docketed on January 12, 2023, in Cuyahoga C.P. No. CV-18- 907570;
• Qais Allan, 871 Rocky River Drive, Inc., and Pearl Road, Inc.’s motion to strike [relator’s] reply in support of motion in limine regarding the Eighth District Court of Appeals Opinion in Allan v. Allan, docketed on January 26, 2023, in Cuyahoga C.P. No. CV-18-907570;
• [Relator’s] motion to strike defendants Qais Allan, 871 Rocky River Drive, Inc., and Pearl Road, Inc.’s sur-reply brief in opposition to [relator’s] motion in limine, docketed on February 6, 2023, in Cuyahoga C.P. No. CV-18- 907570;
• [Relator’s] motion to strike defendant Tareq Allan’s opposition to [relator’s] motion for leave to file motion for summary judgment, docketed on March 13, 2023, in Cuyahoga C.P. No. CV-18-907570; and
• [Relator’s] motion for clarification of the court’s March 23, 2023 judgment entry granting default judgment against defendant Tareq Allan, docketed on September 18, 2023, in Cuyahoga C.P. No. CV-18-907570 (“motion for clarification of default judgement”).
On October 12, 2023, this court sua sponte issued an alternative writ
directing respondent to issue rulings on these outstanding motions or show cause
by October 16, 2023, why a peremptory writ of procedendo should not issue. The
order also gave relator two days to file a brief in opposition, if any. On October 13,
2023, respondent filed a notice of compliance with copies of journal entries attached
informing this court that respondent had journalized rulings on the outstanding
motions identified in relator’s complaint.
Relator filed an objection to respondent’s notice of compliance on
October 15, 2023. There, relator alleged that respondent had not properly ruled on
relator’s motion for clarification of default judgment. Relator also requested that
this court order a continuance of the trial set to commence on October 23, 2023.
On October 16, 2023, respondent filed reply to relator’s objection.
Respondent argued that relator conceded that respondent fulfilled his legal duty by
ruling on the pending motions and procedendo could not be used to control judicial
discretion.
II. Law and Analysis
To be entitled to a writ of procedendo, a relator must show “a clear legal
right to require the trial court to proceed, a clear legal duty on the part of the trial
court to proceed, and the lack of an adequate remedy in the ordinary course of the
law.” State ex rel. Huntington Natl. Bank v. Kontos, 145 Ohio St.3d 102, 2015-Ohio- 5190, 47 N.E.3d 133, ¶ 12, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of
Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d 899 (1995). A court has a duty
to timely resolve motions and matters submitted to it for decision. See State ex rel.
Culgan v. Collier, 135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564; Sup.R. 40.1
A writ of procedendo is an order “from a superior court to one of
inferior jurisdiction to proceed to judgment.” State ex rel. Williams v. Croce, 153
Ohio St.3d 348, 2018-Ohio-2703, 106 N.E.3d 55, ¶ 6. In such an action, a court may
only direct a respondent to exercise its discretion in rendering judgment; it cannot
mandate what ruling is made. “[W]hen a court has discretion to act, its only duty is
to exercise that discretion.” State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 119, 515
N.E.2d 914 (1987), citing State ex rel. Butler v. Demis, 66 Ohio St.2d 123, 420
N.E.2d 116 (1981). Procedendo may not be used to control judicial discretion, even
where that discretion is grossly abused. Id., citing R.C. 2731.03; State ex rel. Sawyer
v. O’Connor, 54 Ohio St.2d 380, 377 N.E.2d 494 (1978).
When a respondent, during the pendency of an action for procedendo,
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State ex rel. Allan v. Kelley, 2023-Ohio-3892.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO EX REL., RAIDA : ALLAN, : No. 113257 Relator, : v. : JUDGE KEVIN J. KELLEY, : Respondent.
JOURNAL ENTRY AND OPINION
JUDGMENT: COMPLAINT DISMISSED DATED: October 20, 2023
Writ of Procedendo Order No. 568753
Appearances:
RaslanPla & Company, LLC, Jorge Luis Pla, Erika Molnar, and Nadia R. Zaiem, for relator.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Matthew T. Fitzsimmons IV, Assistant Prosecuting Attorney, for respondent.
ANITA LASTER MAYS, A.J.:
Relator, Raida Allan, seeks an emergency writ of procedendo directing
respondent, Judge Kevin J. Kelley, to rule on several motions that have been
pending, some for approximately one year, before a trial scheduled to begin October 23, 2023. For the reasons that follow, we sua sponte dismiss the complaint
as moot.
I. Background
Relator filed the instant complaint for writ of procedendo on
October 11, 2023. There, she laid out a complicated procedural history of three
common pleas court cases that stem from the divorce of relator and her former
husband. This included the division of assets, including businesses that operated
gas stations and the assets associated with the operations. This impacted the
businesses and her former husband’s brother, who participated in the case. Along
with the divorce case filed in the domestic relations division of the common pleas
court, relator filed a fraudulent transfer action in the general division of the common
pleas court currently pending before respondent in Cuyahoga C.P. No. CV-18-
907570. One of the businesses also filed a declaratory judgment action, Cuyahoga
C.P. No. CV-19-922868, which was consolidated with the fraudulent transfer action.
Much of this procedural history is not relevant to the instant dispute, but it provides
a backdrop to the ongoing litigation and the respondent’s duty to rule on motions
pending in these two cases that have been consolidated for decision. A more detailed
history of these cases and the dispute between these parties can be found in Allan v.
Allan, 8th Dist. Cuyahoga Nos. 110177 and 110179, 2022-Ohio-1488.
Relator’s complaint alleged that two weeks before a scheduled trial on
October 23, 2023, respondent had yet to rule on the following motions, some of
which had been pending for approximately one year: • [Relator’s] motion to bifurcate and stay, filed October 13, 2022, in Cuyahoga C.P. No. CV-19-922868;
• [Relator’s] motion to strike defendants Qais Allan, 871 Rocky River Drive, Inc. and Pearl Road, Inc.’s motion to dismiss, filed October 19, 2022, in Cuyahoga C.P. No. CV-18-907570;
• [Relator’s] motion for [a witness] to appear remotely, filed November 11, 2022, in Cuyahoga C.P. No. CV-18-907570;
• [Relator’s] motion for extension of time to extend expert discovery deadline, docketed November 28, 2022, in Cuyahoga C.P. No. CV-18-907570;
• [Relator’s] motion to read the relevant portions of Kurt Tober’s deposition into the record at trial, docketed January 9, 2023, in Cuyahoga C.P. No. CV- 18-907570, and unopposed;
• [Relator’s] motion to read the relevant portions of Niel Butch’s deposition into the record at trial, docketed January 9, 2023, in Cuyahoga C.P. No. CV- 18-907570, and unopposed;
• [Relator’s] motion in limine to limit or exclude evidence that contradicts the Eighth Appellate District’s opinion in Allan v. Allan, 8th Dist. Cuyahoga Nos. 110177, 110179, 2022-Ohio-1488, docketed on January 12, 2023, in Cuyahoga C.P. No. CV-18- 907570;
• Qais Allan, 871 Rocky River Drive, Inc., and Pearl Road, Inc.’s motion to strike [relator’s] reply in support of motion in limine regarding the Eighth District Court of Appeals Opinion in Allan v. Allan, docketed on January 26, 2023, in Cuyahoga C.P. No. CV-18-907570;
• [Relator’s] motion to strike defendants Qais Allan, 871 Rocky River Drive, Inc., and Pearl Road, Inc.’s sur-reply brief in opposition to [relator’s] motion in limine, docketed on February 6, 2023, in Cuyahoga C.P. No. CV-18- 907570;
• [Relator’s] motion to strike defendant Tareq Allan’s opposition to [relator’s] motion for leave to file motion for summary judgment, docketed on March 13, 2023, in Cuyahoga C.P. No. CV-18-907570; and
• [Relator’s] motion for clarification of the court’s March 23, 2023 judgment entry granting default judgment against defendant Tareq Allan, docketed on September 18, 2023, in Cuyahoga C.P. No. CV-18-907570 (“motion for clarification of default judgement”).
On October 12, 2023, this court sua sponte issued an alternative writ
directing respondent to issue rulings on these outstanding motions or show cause
by October 16, 2023, why a peremptory writ of procedendo should not issue. The
order also gave relator two days to file a brief in opposition, if any. On October 13,
2023, respondent filed a notice of compliance with copies of journal entries attached
informing this court that respondent had journalized rulings on the outstanding
motions identified in relator’s complaint.
Relator filed an objection to respondent’s notice of compliance on
October 15, 2023. There, relator alleged that respondent had not properly ruled on
relator’s motion for clarification of default judgment. Relator also requested that
this court order a continuance of the trial set to commence on October 23, 2023.
On October 16, 2023, respondent filed reply to relator’s objection.
Respondent argued that relator conceded that respondent fulfilled his legal duty by
ruling on the pending motions and procedendo could not be used to control judicial
discretion.
II. Law and Analysis
To be entitled to a writ of procedendo, a relator must show “a clear legal
right to require the trial court to proceed, a clear legal duty on the part of the trial
court to proceed, and the lack of an adequate remedy in the ordinary course of the
law.” State ex rel. Huntington Natl. Bank v. Kontos, 145 Ohio St.3d 102, 2015-Ohio- 5190, 47 N.E.3d 133, ¶ 12, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of
Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d 899 (1995). A court has a duty
to timely resolve motions and matters submitted to it for decision. See State ex rel.
Culgan v. Collier, 135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564; Sup.R. 40.1
A writ of procedendo is an order “from a superior court to one of
inferior jurisdiction to proceed to judgment.” State ex rel. Williams v. Croce, 153
Ohio St.3d 348, 2018-Ohio-2703, 106 N.E.3d 55, ¶ 6. In such an action, a court may
only direct a respondent to exercise its discretion in rendering judgment; it cannot
mandate what ruling is made. “[W]hen a court has discretion to act, its only duty is
to exercise that discretion.” State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 119, 515
N.E.2d 914 (1987), citing State ex rel. Butler v. Demis, 66 Ohio St.2d 123, 420
N.E.2d 116 (1981). Procedendo may not be used to control judicial discretion, even
where that discretion is grossly abused. Id., citing R.C. 2731.03; State ex rel. Sawyer
v. O’Connor, 54 Ohio St.2d 380, 377 N.E.2d 494 (1978).
When a respondent, during the pendency of an action for procedendo,
proceeds to judgment as requested in the complaint, the action becomes moot
because the relator has received all the relief to which they are entitled. State ex rel.
Bechtel v. Cornachio, 164 Ohio St.3d 579, 2021-Ohio-1121, 174 N.E.3d 744, ¶ 9.
Further, an event that causes an action to become moot may be proved by evidence
outside of the record. State ex rel. Evans v. Mohr, 155 Ohio St.3d 579, 2018-Ohio-
1 According to Sup.R. 40(A)(3), a trial court should rule on a motion within 120
days of filing. However, Sup.R. 40 does not provide enforceable rights but acts as a guide for courts. Culgan at ¶ 11. 5089, 122 N.E.3d 1240, ¶ 5. This includes the journal entries attached to
respondent’s notice of compliance and the dockets of the lower court cases
referenced in the complaint that are available over the internet. State ex rel. Cornely
v. McCall, 8th Dist. Cuyahoga No. 110125, 2020-Ohio-6747, ¶ 21, citing State ex rel.
Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 11.
The sua sponte dismissal of a complaint without notice is rare and is
limited to situations where the “‘“complaint is frivolous or the claimant obviously
cannot prevail on the facts alleged in the complaint.”’” State ex rel. Williams v.
Trim, 145 Ohio St.3d 204, 2015-Ohio-3372, 48 N.E.3d 501, ¶ 11, quoting State ex
rel. Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947, 918 N.E.2d
515, ¶ 3, quoting State ex rel. Scott v. Cleveland, 112 Ohio St.3d 324, 2006-Ohio-
6573, 859 N.E.2d 923, ¶ 14. A sua sponte dismissal of a complaint for writ of
procedendo is appropriate where the action is moot. State ex rel. Cleve v. Sutula,
8th Dist. Cuyahoga No. 111677, 2022-Ohio-2590, ¶ 14, citing State ex rel. Madsen v.
Jones, 8th Dist. Cuyahoga No. 85240, 2005-Ohio-115, ¶ 3-4; State ex rel. Lyons v.
Skinner, 10th Dist. Franklin No. 19AP-815, 2020-Ohio-3008. A relator obviously
cannot prevail in an action that has been rendered moot by a respondent fulfilling
the legal duty owed to the relator because a writ cannot compel a respondent to
perform a duty that has already been performed. Bechtel at ¶ 9, citing State ex rel.
Roberts v. Marsh, 159 Ohio St.3d 457, 2020-Ohio-1540, 151 N.E.3d 625, ¶ 6.
Respondent has filed a notice of compliance with the alternative writ
issued by this court on October 12, 2023. There, respondent asserted that he has ruled on the outstanding motions identified by relator. He attached uncertified
journal entries of these rulings to the notice. The dockets in the underlying cases,
available on the website of the Cuyahoga County Clerk of Courts, also show that
respondent has proceeded to judgment on those motions. Relator has received all
the relief to which she is entitled in this action. Therefore, the complaint in the
present action is moot.
Relator claims that respondent has not properly ruled on her motion
for clarification of default judgment because respondent simply denied the motion
without more. However, that is all the relief to which relator is entitled to in this
action. “[T]he writ will not issue to control what the judgment should be, nor will it
issue for the purpose of controlling or interfering with ordinary court procedure.
Thus, procedendo will not lie to control the exercise of judicial discretion.”
State ex rel. Shaker Hts. Apts. Owner, LLC v. Scott, 8th Dist. Cuyahoga No. 112587,
2023-Ohio-1901, ¶ 6. Relator, through this court, has forced rulings on her motions.
Respondent has fulfilled his legal duty in procedendo. The action is moot.
Relator also asks this court to continue the upcoming trial docketed in
the two underlying lower court cases. Based on the resolution of the relator’s
procedendo claims, this claim for relief is also moot. Even if it were not, relator is
not entitled to this relief in an action for procedendo. As stated previously,
procedendo is an order from a superior court to an inferior one to proceed to
judgment. Williams, 153 Ohio St.3d 348, 2018-Ohio-2703, 106 N.E.3d 55, at ¶ 6. Relator has not identified a source of authority that would provide for this additional
requested relief in this action after respondent has fulfilled his legal duty.
Relator’s claim for writ of procedendo is sua sponte dismissed. The
alternative writ issued October 12, 2023, is dissolved. Costs assessed against
respondent; costs waived. The clerk is directed to serve on the parties notice of this
judgment and its date of entry upon the journal. Civ.R. 58(B).
Complaint dismissed.
_____________________________________ ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
MICHELLE J. SHEEHAN, J., and LISA B. FORBES, J., CONCUR