State ex rel. Weir v. Camplese

2025 Ohio 1017

• Court: Ohio Court of Appeals
• Decided: March 24, 2025
• Docket: 2024-A-0100
• Status: Published

Opinion

[Cite as State ex rel. Weir v. Camplese, 2025-Ohio-1017.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO ex rel. CASE NO. 2024-A-0100 KEVIN A. WEIR,

Relator, Original Action for Writ of Procedendo - vs -

ASHTABULA COUNTY COMMON PLEAS COURT, JUVENILE DIVISION, JUDGE ALBERT S. CAMPLESE,

Respondent.

PER CURIAM OPINION

Decided: March 24, 2025 Judgment: Petition dismissed

Kevin A. Weir, pro se, PID# A691-188, Belmont Correctional Institution, 68518 Bannock Road, P.O. Box 540, St. Clairsville, OH 43950 (Relator).

Albert S. Camplese, Judge, pro se, 4717 Main Avenue, Ashtabula, OH 44004 (Respondent).

PER CURIAM.

{¶1} This matter is before the Court on a petition for writ of procedendo filed by

relator, Kevin A. Weir (“Weir”) on November 27, 2024. Weir has filed against respondent,

Honorable Albert S. Camplese (“Judge Camplese”) of the Ashtabula County Court of

Common Pleas, Juvenile Division. Weir is seeking an order requiring Judge Camplese to

proceed on his motion for reconsideration/motion for new trial allegedly filed in Case No.

14JI225. {¶2} This Court issued an alternative writ on December 11, 2024. In accordance

with the alternative writ, Judge Camplese filed a motion to dismiss the petition on January

10, 2025. Judge Camplese asserts that there is no record of the motion for

reconsideration/motion for new trial being filed in the lower court. Weir filed a response to

the motion to dismiss on February 3, 2025.

{¶3} “A writ of procedendo is a civil judgment in which a court of superior

jurisdiction orders a court of inferior jurisdiction to proceed to judgment.” Kimble v. McKay,

2012-Ohio-2707, ¶ 5 (11th Dist.), citing Yee v. Erie Cty. Sheriff's Dept., 51 Ohio St.3d 43,

45 (1990).

{¶4} When a court has refused to enter judgment or has unnecessarily delayed

proceeding to judgment, a writ of procedendo is appropriate. Id. at ¶ 6, citing State ex rel.

McKinney v. McKay, 2011-Ohio-3756, ¶ 17 (11th Dist.). “[T]o be entitled to a writ of

procedendo, a relator must establish a clear legal right to require the court to proceed, a

clear legal duty on the part of the court to proceed, and the lack of an adequate remedy

in the ordinary course of the law.” Id. citing McKinney at ¶ 17.

{¶5} Weir has failed to caption his petition correctly. An application for a writ of

procedendo must be by petition, in the name of the state on the relation of the person

applying. State ex rel. Jenkins v. Belmont Cnty. Common Pleas Court, 2019-Ohio-206

(7th Dist.), citing State ex rel. Clay v. Gee, 2014-Ohio-48. See also, Brody v. Lucci, 2012-

Ohio-1132, ¶ 21 (11th Dist). While Judge Camplese has filed a motion to dismiss on other

grounds, he does not raise this error. “We note that a court may dismiss a petition for an

extraordinary writ, sua sponte, when the petition is improperly captioned.” (Emphasis

Case No. 2024-A-0100 added.) Brody at ¶ 21,citing Hill v. Kelly, 2011-Ohio-6341, ¶ 4 (11th Dist.). See also,

Shoop v. State, 2015-Ohio-2068, ¶ 10.

{¶6} However, the failure to bring an action for a writ of procedendo in the name

of the state on the relation of the person applying for the writ is not a jurisdictional defect.

Thus, we sua sponte correct the caption and address the merits of the petition. See

Salemi v. Cleveland Metroparks, 2016-Ohio-1192, ¶13 (finding miscaptioning a waivable

defense and noting that it is “common practice when parties fail to raise the issue simply

to correct the error before publication”).

{¶7} Weir asserts in his petition that his motion for telephone visitation was

denied by the trial court on June 27, 2023. A time-stamped copy of the motion is attached

to his response in opposition to the motion to dismiss filed by Judge Camplese. Weir

alleges that he sent a motion for reconsideration/new trial on July 25, 2023, and that the

trial court has failed to rule on his motion. While Weir attached a copy of a motion, it is

not time-stamped as filed. Judge Camplese avers that Weir’s motion for

reconsideration/new trial does not appear in the lower court record. Indeed, the record

before this Court does not demonstrate that Weir’s motion for reconsideration was filed

in the court below.

{¶8} Judge Camplese also argues that a motion for reconsideration is no

substitute for appeal and that the motion, if filed, is a nullity. “A motion for reconsideration

is not recognized under the Ohio Rules of Civil Procedure, and thus, any judgment on this

type of motion is a nullity and cannot be appealed.” Matter of Estate of Sassya, 2024-

Ohio-1347, ¶ 3 (11th Dist.), citing Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 381

(1981); see also Andolsek v. Polstein, 2018-Ohio-3626, ¶ 3 (11th Dist.).

Case No. 2024-A-0100 {¶9} The trial court denied Weir’s motion for telephone visitation on June 27,

2023. Weir has an adequate remedy at law by virtue of appeal from the denial of his

motion for visitation. Further, there is no evidence before this Court that a motion for

reconsideration/motion for new trial was filed in the trial court. As such, Weir is not entitled

to a writ of procedendo.

{¶10} Based on the foregoing, the petition is dismissed.

ROBERT J. PATTON, P.J., MATT LYNCH, J., JOHN J. EKLUND, J., concur.

Case No. 2024-A-0100