[Cite as State ex rel. Smith v. Vodrey, 2025-Ohio-5764.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO EX REL. : DEAUNTA SMITH, : Relator, No. 115616 : v. : HON. WILLIAM F.B. VODREY, JUDGE, ET AL., :
Respondents. :
JOURNAL ENTRY AND OPINION
JUDGMENT: PETITION DISMISSED DATED: December 23, 2025
Writ of Procedendo Motion No. 589389 Order No. 590576
Appearances:
Deaunta Smith, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Craig A. McClelland, Assistant Prosecuting Attorney, for respondents.
LISA B. FORBES, P.J.:
Relator Deaunta Smith, pro se, seeks a writ of procedendo ordering
respondents Judge William F.B. Vodrey and Magistrate Monica Klein to rule on several motions relator filed in a civil stalking protection order (“CSPO”) case, T.S.
v. L.R., Cuyahoga C.P. No. CV-24-104601 (the “CSPO action”).
For the reasons that follow, relator’s request for relief is moot, and
respondents’ motion to dismiss is granted.
I. Factual and Procedural Background
In September 2024, T.S. filed a petition for a CSPO against L.R. in the
CSPO action. Respondent Judge Vodrey was assigned to the case; it was
subsequently referred to respondent Magistrate Klein. After a full hearing, the
magistrate granted a CSPO. T.S. and her (and relator’s) children were named as
protected persons in the CSPO. In December 2024, the trial court adopted the
magistrate’s granting of the CSPO and, in January 2025, overruled L.R.’s objections
to its adoption of the magistrate’s order granting the CSPO. L.R. thereafter filed
various motions to modify or terminate the CSPO or for relief from judgment
pursuant to Civ.R. 60(B). On June 20, 2025, L.R. filed a notice of appeal.
On June 2, 2025, relator filed a “motion to intervene and terminate or
modify CSPO” (“motion to intervene”) in the CSPO action. Relator argued that the
CSPO “foreclosed” his “residence-based parenting time” because he resides with
L.R. He further argued that the trial court’s findings that L.R. had engaged in
menacing by stalking were not supported by sufficient evidence and were against
the manifest weight of the evidence. Relator sought leave to intervene pursuant to
Civ.R. 24 and requested that the CSPO be terminated “as applied to [him] and his constitutionally protected parenting time.” On June 20, 2025, relator filed a
“motion to expedite ruling on motion to intervene” (“motion to expedite ruling”).
On July 14, 2025, the trial court denied relator’s motion to intervene
and his motion to expedite ruling as moot, noting that a notice of appeal had been
filed in the case and indicating that, once an appeal is filed, a trial court “loses
jurisdiction to proceed in any way that would interfere with the appellate court’s
ability to review and affirm, reverse, vacate or modify the judgment of the court
below.” The following day, relator filed a “motion to clarify jurisdiction and compel
ruling on motion to intervene” (“motion to compel ruling”). The motion sought
clarification of the court’s jurisdiction to rule on his motions to intervene and to
expedite ruling and to compel rulings on those motions.
On September 22, 2025, relator filed the instant petition for a writ of
procedendo, requesting an order directing respondents to (1) “[p]romptly rule” on
relator’s motion to compel ruling and (2) “[i]ssue rulings on all other pending
motions in Relator’s name without further delay.”1 Specifically, relator alleges that
the trial court “improperly denied” his motion to intervene as “moot” and that
“denying a valid motion as ‘moot,’ then refusing to rule at all” on relator’s motion to
compel ruling “is presumptively unreasonable and unlawful.” Relator asserts that
“Respondents have a clear legal duty to rule, and Relator has a clear legal right to a
ruling.”
1 In his petition, relator does not identify any other specific “pending motions in
relator’s name” as to which he contends he is entitled to a ruling. In support of his petition, relator attached copies of (1) his motion to
intervene, motion to expedite ruling, and motion to clarify jurisdiction and compel
ruling; (2) the trial court’s July 14, 2025 journal entry denying his motion to
intervene and motion to expedite ruling; and (3) a printout, dated September 19,
2025, of the appearance docket in the CSPO action.
On November 3, 2025, respondents filed a motion to dismiss relator’s
petition on the grounds that the petition was moot and failed to state a claim for
which relief could be granted because “Relator is seeking a writ of procedendo to
order Respondents to rule on a motion which has previously been resolved” — i.e.,
“on July 14, 2025, Respondent ruled upon Relator’s motion to intervene and set
forth the legal basis for that ruling,” which “ruling also directly impacts . . . Relator’s
July 15, 2025 motion [to compel ruling]” — and relator cannot obtain a writ to
compel performance of a duty that has already been performed.
Relator has not filed a timely opposition to respondents’ motion to
dismiss and, therefore, has not disputed respondents’ claim that the petition is moot
based on the trial court’s July 14, 2025 journal entry because “the motions in
question have, in fact, been ruled upon.”
II. Law and Analysis
A. Standard of Review on a Motion to Dismiss
Dismissal of an action seeking a writ of procedendo for failure to state
a claim upon which relief can be granted is appropriate if, after presuming all factual
allegations in the complaint as true and drawing all reasonable inferences in the relator’s favor, it appears beyond doubt that it appears beyond doubt that the relator
is not entitled to the relief requested. State ex rel. Gordon v. Summit Cty. Court of
Common Pleas, 2025-Ohio-2927, ¶ 8; State ex rel. S.Y.C. v. Floyd, 2024-Ohio-1387,
¶ 12. “While we must accept factual assertions as true, ‘unsupported legal
conclusions, even when cast as factual assertions, are not presumed true for
purposes of a motion to dismiss.’” State ex rel. Gordon at ¶ 8, quoting State ex rel.
Martre v. Reed, 2020-Ohio-4777, ¶ 12; see also State ex rel. Sands v. Court of
Common Pleas Judge, 2018-Ohio-4245, ¶ 8 (“‘[U]nsupported conclusions of a
complaint . . . are not sufficient to withstand a motion to dismiss.’”), quoting State
ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490 (1994).
When ruling on a Civ.R. 12(B)(6) motion to dismiss, we may consider
documents attached to and incorporated within the complaint. State ex rel. Gordon
at ¶ 8; State ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews, 2022-Ohio-
3990, ¶ 16 (“[A] Civ.R. 12(B)(6) motion limits a court to testing the sufficiency of the
complaint and the materials incorporated into it.”).
B. Requirements for Issuing a Writ of Procedendo
“‘A writ of procedendo is an extraordinary remedy in the form of an
order from a higher tribunal directing a lower tribunal to proceed to judgment.’”
State ex rel. Bechtel v. Cornachio, 2021-Ohio-1121, ¶ 7, quoting State ex rel.
Mignella v. Indus. Comm., 2019-Ohio-463, ¶ 7. “‘A writ of procedendo is proper
when a court has refused to enter judgment or has unnecessarily delayed proceeding
to judgment.’” State ex rel. Dodson v. Phipps, 2024-Ohio-4928, ¶ 13, quoting State ex rel.
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[Cite as State ex rel. Smith v. Vodrey, 2025-Ohio-5764.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO EX REL. : DEAUNTA SMITH, : Relator, No. 115616 : v. : HON. WILLIAM F.B. VODREY, JUDGE, ET AL., :
Respondents. :
JOURNAL ENTRY AND OPINION
JUDGMENT: PETITION DISMISSED DATED: December 23, 2025
Writ of Procedendo Motion No. 589389 Order No. 590576
Appearances:
Deaunta Smith, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Craig A. McClelland, Assistant Prosecuting Attorney, for respondents.
LISA B. FORBES, P.J.:
Relator Deaunta Smith, pro se, seeks a writ of procedendo ordering
respondents Judge William F.B. Vodrey and Magistrate Monica Klein to rule on several motions relator filed in a civil stalking protection order (“CSPO”) case, T.S.
v. L.R., Cuyahoga C.P. No. CV-24-104601 (the “CSPO action”).
For the reasons that follow, relator’s request for relief is moot, and
respondents’ motion to dismiss is granted.
I. Factual and Procedural Background
In September 2024, T.S. filed a petition for a CSPO against L.R. in the
CSPO action. Respondent Judge Vodrey was assigned to the case; it was
subsequently referred to respondent Magistrate Klein. After a full hearing, the
magistrate granted a CSPO. T.S. and her (and relator’s) children were named as
protected persons in the CSPO. In December 2024, the trial court adopted the
magistrate’s granting of the CSPO and, in January 2025, overruled L.R.’s objections
to its adoption of the magistrate’s order granting the CSPO. L.R. thereafter filed
various motions to modify or terminate the CSPO or for relief from judgment
pursuant to Civ.R. 60(B). On June 20, 2025, L.R. filed a notice of appeal.
On June 2, 2025, relator filed a “motion to intervene and terminate or
modify CSPO” (“motion to intervene”) in the CSPO action. Relator argued that the
CSPO “foreclosed” his “residence-based parenting time” because he resides with
L.R. He further argued that the trial court’s findings that L.R. had engaged in
menacing by stalking were not supported by sufficient evidence and were against
the manifest weight of the evidence. Relator sought leave to intervene pursuant to
Civ.R. 24 and requested that the CSPO be terminated “as applied to [him] and his constitutionally protected parenting time.” On June 20, 2025, relator filed a
“motion to expedite ruling on motion to intervene” (“motion to expedite ruling”).
On July 14, 2025, the trial court denied relator’s motion to intervene
and his motion to expedite ruling as moot, noting that a notice of appeal had been
filed in the case and indicating that, once an appeal is filed, a trial court “loses
jurisdiction to proceed in any way that would interfere with the appellate court’s
ability to review and affirm, reverse, vacate or modify the judgment of the court
below.” The following day, relator filed a “motion to clarify jurisdiction and compel
ruling on motion to intervene” (“motion to compel ruling”). The motion sought
clarification of the court’s jurisdiction to rule on his motions to intervene and to
expedite ruling and to compel rulings on those motions.
On September 22, 2025, relator filed the instant petition for a writ of
procedendo, requesting an order directing respondents to (1) “[p]romptly rule” on
relator’s motion to compel ruling and (2) “[i]ssue rulings on all other pending
motions in Relator’s name without further delay.”1 Specifically, relator alleges that
the trial court “improperly denied” his motion to intervene as “moot” and that
“denying a valid motion as ‘moot,’ then refusing to rule at all” on relator’s motion to
compel ruling “is presumptively unreasonable and unlawful.” Relator asserts that
“Respondents have a clear legal duty to rule, and Relator has a clear legal right to a
ruling.”
1 In his petition, relator does not identify any other specific “pending motions in
relator’s name” as to which he contends he is entitled to a ruling. In support of his petition, relator attached copies of (1) his motion to
intervene, motion to expedite ruling, and motion to clarify jurisdiction and compel
ruling; (2) the trial court’s July 14, 2025 journal entry denying his motion to
intervene and motion to expedite ruling; and (3) a printout, dated September 19,
2025, of the appearance docket in the CSPO action.
On November 3, 2025, respondents filed a motion to dismiss relator’s
petition on the grounds that the petition was moot and failed to state a claim for
which relief could be granted because “Relator is seeking a writ of procedendo to
order Respondents to rule on a motion which has previously been resolved” — i.e.,
“on July 14, 2025, Respondent ruled upon Relator’s motion to intervene and set
forth the legal basis for that ruling,” which “ruling also directly impacts . . . Relator’s
July 15, 2025 motion [to compel ruling]” — and relator cannot obtain a writ to
compel performance of a duty that has already been performed.
Relator has not filed a timely opposition to respondents’ motion to
dismiss and, therefore, has not disputed respondents’ claim that the petition is moot
based on the trial court’s July 14, 2025 journal entry because “the motions in
question have, in fact, been ruled upon.”
II. Law and Analysis
A. Standard of Review on a Motion to Dismiss
Dismissal of an action seeking a writ of procedendo for failure to state
a claim upon which relief can be granted is appropriate if, after presuming all factual
allegations in the complaint as true and drawing all reasonable inferences in the relator’s favor, it appears beyond doubt that it appears beyond doubt that the relator
is not entitled to the relief requested. State ex rel. Gordon v. Summit Cty. Court of
Common Pleas, 2025-Ohio-2927, ¶ 8; State ex rel. S.Y.C. v. Floyd, 2024-Ohio-1387,
¶ 12. “While we must accept factual assertions as true, ‘unsupported legal
conclusions, even when cast as factual assertions, are not presumed true for
purposes of a motion to dismiss.’” State ex rel. Gordon at ¶ 8, quoting State ex rel.
Martre v. Reed, 2020-Ohio-4777, ¶ 12; see also State ex rel. Sands v. Court of
Common Pleas Judge, 2018-Ohio-4245, ¶ 8 (“‘[U]nsupported conclusions of a
complaint . . . are not sufficient to withstand a motion to dismiss.’”), quoting State
ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490 (1994).
When ruling on a Civ.R. 12(B)(6) motion to dismiss, we may consider
documents attached to and incorporated within the complaint. State ex rel. Gordon
at ¶ 8; State ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews, 2022-Ohio-
3990, ¶ 16 (“[A] Civ.R. 12(B)(6) motion limits a court to testing the sufficiency of the
complaint and the materials incorporated into it.”).
B. Requirements for Issuing a Writ of Procedendo
“‘A writ of procedendo is an extraordinary remedy in the form of an
order from a higher tribunal directing a lower tribunal to proceed to judgment.’”
State ex rel. Bechtel v. Cornachio, 2021-Ohio-1121, ¶ 7, quoting State ex rel.
Mignella v. Indus. Comm., 2019-Ohio-463, ¶ 7. “‘A writ of procedendo is proper
when a court has refused to enter judgment or has unnecessarily delayed proceeding
to judgment.’” State ex rel. Dodson v. Phipps, 2024-Ohio-4928, ¶ 13, quoting State ex rel. Culgan v. Collier, 2013-Ohio-1762, ¶ 7. Such a writ does not instruct the lower
court as to what the judgment should be; it merely instructs the lower court to issue
a judgment. State ex rel. Bechtel at ¶ 7. A writ of procedendo is appropriate upon a
showing of a clear legal right to require the respondent to proceed, a clear legal duty
on the part of the respondent to proceed, and the lack of an adequate remedy in the
ordinary course of the law. State ex rel. Dodson at ¶ 13; State ex rel. Bechtel at ¶ 7.
“Procedendo will not compel the performance of a duty that has
already been performed.” State ex rel. Bechtel at ¶ 9, citing State ex rel. Roberts v.
Marsh, 2020-Ohio-1540, ¶ 6. Where a relator seeks to compel an action that has
already been performed, the procedendo claim is moot. See, e.g., State ex rel.
Bechtel at ¶ 8-9.
C. Relator’s Petition for a Writ of Procedendo
Presuming the truth of all material factual allegations of relator’s
petition and making all reasonable inferences in his favor, it appears beyond doubt
that relator is not entitled to the writ of procedendo he seeks. Relator cannot show
that he has a clear legal right to the relief he demands from respondents or that
respondents have a clear legal duty to grant any such relief.
In his petition, relator expressly acknowledges that his motion to
intervene and motion to expedite ruling were denied on July 14, 2025, before the
filing of his petition for a writ of procedendo. It was these same motions as to which
relator sought to compel ruling in his motion to compel ruling filed on July 15, 2025.
As such, it is clear from the face of his petition that relator cannot prevail on his procedendo claim. Procedendo will not issue to compel a ruling with regard to
motions that relator admits in his petition have already been ruled upon. See, e.g.,
State ex rel. Dodson, 2024-Ohio-4928, at ¶ 11-14; see also State ex rel. S.Y.C., 2024-
Ohio-1387, at ¶ 15-16 (where motion to dismiss demonstrated that motions at issue
were addressed before relator filed her petition, were not a motion and therefore did
not require a decision from the court, or were addressed at a hearing during the
pendency of relator’s petition, respondent had provided relator with all the relief she
could have received through her procedendo claim, rendering it moot); State ex rel.
Roberts v. Hatheway, 2021-Ohio-4097, ¶ 5 (“An action in procedendo becomes
moot when the court performs the duty requested.”).
To the extent that relator seeks an order compelling respondents to
reconsider the denial of his motions, such relief is not available through a writ of
procedendo. Procedendo can be used only to compel a judge to issue some ruling
on a motion; it cannot be used to compel a judge to reach a specific result or to
change the result once ruled. State ex rel. Williams v. Croce, 2018-Ohio-2703, ¶ 8;
State ex rel. Meros v. Judge, 2024-Ohio-6199, ¶ 7-8 (8th Dist.). Although, given
that L.R.’s appeal was pending at the time the trial court ruled on relator’s motions,
there may be an issue as to whether the trial court acted properly in denying relator’s
motions as moot, rather than holding those motions in abeyance pending the appeal,
relator’s petition still would not state a claim for which relief could be granted
through a writ of procedendo given that the relief he seeks is to compel different
rulings on those motions. Further, there exists no duty, through procedendo, for respondents to
provide any clarification or other written explanation as to the disposition of the
motions at issue. State ex rel. Ramirez v. Cuyahoga Cty. Domestic Relations Court,
2025-Ohio-2601, ¶ 6 (8th Dist.).
Accordingly, relator’s petition is moot, fails to state a claim for a writ
of procedendo, and is subject to dismissal.
In addition, relator’s petition is procedurally deficient. Relator’s
petition does not comply with Civ.R. 10(A), which requires a relator to list the
parties’ addresses in the case caption, and the petition was not supported with an
affidavit as required under Loc.App.R. 45(D)(1).
We, therefore, grant respondents’ motion to dismiss. Costs assessed
against respondents; costs waived. The clerk is directed to serve on all parties notice
of this judgment and its date of entry upon the journal. Civ.R. 58(B).
Petition dismissed.
___________________________ LISA B. FORBES, PRESIDING JUDGE
MICHAEL JOHN RYAN, J., and SEAN C. GALLAGHER, J., CONCUR