State ex rel. Cotten v. Aveni

[Cite as State ex rel. Cotten v. Aveni, 2026-Ohio-1356.]


                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State ex rel. Prince Charles Cotten, Sr.,                  :

                 Relator,                                  :
                                                                       No. 25AP-869
v.                                                         :
                                                                    (REGULAR CALENDAR)
Carl A. Aveni, Judge,                                      :

                 Respondent.                               :


                                             D E C I S I O N

                                       Rendered on April 14, 2026


                 On brief: Prince Charles Cotten, Sr., pro se.

                 On brief: Shayla D. Favor, Prosecuting Attorney, and
                 Brianna T. Morris, for respondent.

                                    IN PROCEDENDO
                           ON REVIEW OF MAGISTRATE’S DECISION

BEATTY BLUNT, J.

        {¶ 1} On October 29, 2025, relator, then an inmate at Marion Correctional
Institution in Marion Ohio, filed a complaint in the instant procedendo action, and on
December 4, 2025 respondent filed a motion to dismiss relator’s complaint. Pursuant to
Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred
to a magistrate. On review, the magistrate recommended that we grant the motion to
dismiss the action as moot, because the respondent had already performed the act sought.
        {¶ 2} Relator has not filed any objection to the magistrate’s decision. “If no timely
objections are filed, the court may adopt a magistrate’s decision, unless it determines that
there is an error of law or other defect evident on the face of the magistrate’s decision.”
Civ.R. 53(D)(4)(c). Our review of the magistrate’s decision reveals no error of law or other
No. 25AP-869                                                                               2


evident defect. See, e.g., State ex rel. Alleyne v. Indus. Comm., 2004-Ohio-4223, ¶ 32-33,
(10th Dist.) (adopting the magistrate’s decision where no objections were filed).
       {¶ 3} As we have found no error of law or other defect on the face of the magistrate’s
decision, we adopt it as our own, including the findings of fact and conclusions of law as
they are set forth in the decision. In accordance with the magistrate’s recommendation, the
respondent’s motion to dismiss is sustained and the relator’s petition for writ of procedendo
is dismissed as moot.
                                               Respondent’s motion to dismiss sustained;
                                                             petition dismissed as moot.

                         EDELESTEIN and DINGUS, JJ., concur.
No. 25AP-869                                                                              3


                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

State ex rel. Prince Charles Cotton, Sr.,      :

               Relator,                        :

v.                                             :                   No. 25AP-869

Carl A. Aveni, Judge,                          :              (REGULAR CALENDAR)

               Respondent.                     :




                          MAGISTRATE’S DECISION

                               Rendered on January 16, 2026



               Prince Charles Cotton, Sr., pro se.

               Shayla D. Favor, Prosecuting Attorney, and Brianna T.
               Morris, for respondent.


                                    IN PROCEDENDO
                                 ON MOTION TO DISMISS

         {¶ 4} Relator Prince Charles Cotton, Sr. requests a writ of procedendo ordering
respondent Judge Carl A. Aveni to proceed to judgment in Cotton v. Chambers-Smith,
Franklin C.P. No. 24CV6991 (hereinafter referred to as the “underlying case”). Respondent
has filed a motion to dismiss for failure to state a claim upon which relief can be granted.
For the following reasons, the magistrate recommends granting the motion to dismiss.

I. Findings of Fact

         {¶ 5} 1. At the time of the filing of this action in procedendo, relator was
incarcerated at Marion Correctional Institution in Marion, Ohio.
         {¶ 6} 2. Respondent is a judge serving on the Franklin County Court of Common
Pleas.
No. 25AP-869                                                                                 4


       {¶ 7} 3. Relator filed a complaint in the underlying case on September 10, 2024.
       {¶ 8} 4. On June 12, 2025, relator filed a “motion averring a federal rights to jury
trial” in the underlying case.
       {¶ 9} 5. On August 11, 2025, respondent issued a decision and entry in the
underlying case that dismissed relator’s complaint without prejudice for failure to strictly
comply with R.C. 2969.25(A).
       {¶ 10} 6. Relator filed a complaint for peremptory writ of procedendo in this court
on October 29, 2025.
       {¶ 11} 7. Relator filed an amended complaint for peremptory writ of procedendo
on November 19, 2025.
       {¶ 12} 8. On December 4, 2025, respondent filed a motion to dismiss relator’s
complaint in procedendo.
       {¶ 13} 9. On December 22, 2025, relator filed a document captioned “correction
amended peremptory writ of procedendo.” (Emphasis removed.)

II. Discussion and Conclusions of Law

       {¶ 14} Relator seeks a peremptory writ of procedendo ordering respondent to
proceed to judgment in the underlying case. Respondent has moved to dismiss relator’s
amended complaint pursuant to Civ.R. 12(B)(6). Before addressing the motion to dismiss,
it is noted that on December 22, 2025, relator filed—among other documents—a document
with the following caption: “correction amended peremptory writ of procedendo.”
(Emphasis removed.) This document appears substantially similar to relator’s November
19, 2025 amended complaint.
       {¶ 15} The Rules of Civil Procedure do not provide for “corrections” to a complaint,
but instead permit amendment of a complaint under certain circumstances. Under
Civ.R. 15(A), a party is permitted to “amend its pleading once as a matter of course within
twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is
required within twenty-eight days after service of a responsive pleading or twenty-eight
days after service of a motion under Civ.R. 12(B), (E), or (F), whichever is earlier.”
(Emphasis added.) Outside of those circumstances, “a party may amend its pleading only
with the opposing party’s written consent or the court’s leave.” Civ.R. 15(A).
No. 25AP-869                                                                                5


       {¶ 16} In this matter, relator amended his complaint once as permitted on
November 19, 2025. When filing the documents on December 22, 2025, relator did not
indicate respondent had provided written consent to a subsequent amendment. Nor did
relator seek leave to amend. “When leave is required to file an amended complaint, and a
party files or serves the amended complaint without leave of court, the amended complaint
is without legal effect.” Hunter v. Shield, 2019-Ohio-1422, ¶ 17 (10th Dist.). Therefore,
because relator did not obtain respondent’s written consent or seek leave of court prior to
filing the second amended complaint, it is not necessary to consider relator’s December 22,
2025 filing for purposes of resolving respondent’s motion to dismiss.

A. Standard for a Motion to Dismiss for Failure to State a Claim

       {¶ 17} A motion to dismiss for failure to state a claim under Civ.R. 12(B)(6) is
procedural and tests the sufficiency of the petition or complaint. See State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 1992-Ohio-73, ¶ 9, citing Assn. for the Defense of the
Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). When ruling on a
Civ.R. 12(B)(6) motion, a court is permitted to consider certain “documents attached to or
incorporated into the complaint.” State ex rel. Gordon v. Summit Cty. Court of Common
Pleas, 2025-Ohio-2927, ¶ 8. See Civ.R. 10(C) (“A copy of any written instrument attached
to a pleading is a part of the pleading for all purposes.”).
       {¶ 18} A court reviewing the sufficiency of a complaint in resolving a Civ.R. 12(B)(6)
motion must presume all factual allegations in the complaint to be true and make all
reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co., 40
Ohio St.3d 190, 192 (1988). Despite this presumption regarding factual allegations,
“unsupported legal conclusions, even when cast as factual assertions, are not presumed true
for purposes of a motion to dismiss.” State ex rel. Martre v. Reed, 2020-Ohio-4777, ¶ 12.

B. Purpose of and Requirements for Procedendo

       {¶ 19} The purpose of a writ of procedendo is to compel an inferior court to act
where the “court has either refused to render a judgment or has unnecessarily delayed
proceeding to judgment.” State ex rel. Weiss v. Hoover, 1999-Ohio-422, ¶ 7. In order for a
writ of procedendo to issue in this matter, relator must establish (1) a clear legal right to
require respondent to proceed, (2) a clear legal duty on the part of respondent to proceed,
No. 25AP-869                                                                                    6


and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel.
Yeaples v. Gall, 2014-Ohio-4724, ¶ 20.

C. Whether Relator Has Stated a Claim in Procedendo

       {¶ 20} In his amended complaint, relator alleges that after he “filed his pleading with
the Court on September 10th of 2024 in Case No. 24 CV 006991,” respondent has “refused
to acknowledge, and [has] delayed in ruling” on the matter. (Am. Compl. at 2.) Further,
relator alleges: “on the 2nd of June 20[25,] Relator filed his Motion Averring A Federal
Rights to a Jury Trial to settle Relator’s Genuine Issues, a Controversy, a [legitimate]
Dispute before the[ ]Court. As it is, the Court has refused to acknowledge, and have delayed
on making a ruling in this Case.” Id. Relator asserts he has “a clear legal right to have his
Motion Averring his Federal Rights to a Jury Trial - When he has a Genuine Issue, a
Controversy, and a Legitimate Dispute before the Court, and the Respondent [has] a
corresponding clear legal duty to proceed into Judgment on Relator’s Motion Averring a
Federal Right to a Jury Trial to Settle all Issues before the Court as sought.” (Am. Compl. at
2.) Respondent asserts that the underlying action is moot and requests this court take
judicial notice of the proceedings in that case.
       {¶ 21} It has been recognized that “[i]t may be appropriate in certain cases for a
court to take judicial notice of something filed in another case.” State ex rel. Mather v. Oda,
2023-Ohio-3907, ¶ 14. Compare State ex rel. Everhart v. McIntosh, 2007-Ohio-4798, ¶ 8
(recognizing that certain courts have taken judicial notice of the content of public court
records available on the internet), with State ex rel. Bradford v. Bowen, 2022-Ohio-351, ¶
12 (stating that “Everhart merely recognizes that other courts have taken judicial notice of
court records that were available on the Internet,” and that “Everhart does not support the
. . . broad assertion that a court may take judicial notice of any public record that is available
online”). With regard to actions in procedendo, a court is permitted to consider the record
of the trial court in determining whether the respondent has already performed the act
sought in the complaint. See State ex rel. Sevilla v. Cocroft, 2021-Ohio-4280, ¶ 6 (10th
Dist.); State ex rel. Cincinnati Enquirer v. Dupuis, 2002-Ohio-7041, ¶ 8 (“An event that
causes a case to become moot may be proved by extrinsic evidence outside the record.”). As
the common pleas court’s docket is publicly available online and not subject to reasonable
dispute, the magistrate takes judicial notice of the docket in the underlying case for the
No. 25AP-869                                                                              7


purpose of determining whether respondent has already performed the act sought in the
complaint.
       {¶ 22} Review of the common pleas court’s docket in the underlying case reveals that
on August 11, 2025, respondent issued a decision and entry dismissing relator’s complaint
without prejudice for failure to strictly comply with R.C. 2969.25(A). Furthermore, because
the dismissal of relator’s complaint in the underlying action occurred while relator’s June
12, 2025 motion averring a federal rights to jury trial was pending, such motion was
implicitly overruled. See State ex rel. Dobson v. Handwork, 2020-Ohio-1069, ¶ 18, quoting
Kostelnik v. Helper, 2002-Ohio-2985, ¶ 13 (“ ‘A motion not expressly decided by the trial
court when the case is concluded is ordinarily presumed to have been overruled.’ ”); Seff v.
Davis, 2003-Ohio-7029, ¶ 16 (10th Dist.) (stating that “when the trial court enters
judgment without expressly determining a pending motion, the motion is also considered
impliedly overruled”); Columbus v. ACM Vision, V, LLC, 2021-Ohio-925, ¶ 22 (10th Dist.).
       {¶ 23} An action becomes moot “ ‘ “when the issues presented are no longer ‘live’ or
the parties lack a legally cognizable interest in the outcome.” ’ ” State ex rel. Gaylor,
Inc. v. Goodenow, 2010-Ohio-1844, ¶ 10, quoting Los Angeles Cty. v. Davis, 440 U.S. 625,
631 (1979), quoting Powell v. McCormack, 395 U.S. 486, 496 (1969). “Procedendo will not
compel the performance of a duty that has already been performed.” State ex rel. Bechtel v.
Cornachio, 2021-Ohio-1121, ¶ 9. “When a relator seeks to compel the issuance of a
judgment entry through a writ of procedendo and the judge issues the entry, the
procedendo claim is moot.” Id. The decision and entry issued by respondent in the
underlying case resolved both the complaint and, implicitly, the motion averring a federal
rights to jury trial. As respondent’s act fulfilled the duty relator seeks to enforce in
procedendo, relator’s request for a writ of procedendo is moot.
       {¶ 24} Finally, in his amended complaint, relator refers to the defendant in the
underlying action and appears to make some claim regarding the merits of that action.
Specifically, relator states that “based on these facts - Annette Chambers-Smith Does Not
Have Va[li]d Certified Re-Sentencing Judgment Entry to continue to hold Relator in Ohio’s
Prison System as a matter of Federal/State Constitutional Law, for which is ever prayed.”
(Emphasis removed.) (Am. Compl. at 3.) To the extent that relator seeks to challenge the
dismissal of the underlying action, such relief is not available in procedendo, but instead
No. 25AP-869                                                                              8


must be pursued through appeal. See State ex rel. Daniels v. Russo, 2018-Ohio-5194, ¶ 24
(stating “it is well established that neither mandamus nor procedendo is a substitute for an
appeal”). Furthermore, insofar as relator is requesting release from incarceration in this
action, such relief is not available in procedendo. See State ex rel. Hazel v. Bender, 2011-
Ohio-4197, ¶ 2 (stating that “habeas corpus, rather than procedendo, is the proper action
to seek release from prison”).

D. Conclusion

       {¶ 25} Relator’s request for a writ of procedendo is moot. Accordingly, it is the
decision and recommendation of the magistrate that respondent’s motion to dismiss
should be granted, and this action in procedendo dismissed as moot.


                                              /S/ MAGISTRATE
                                              JOSEPH E. WENGER IV




                                 NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court’s adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Civ.R.
              53(D)(3)(a)(ii), unless the party timely and specifically objects
              to that factual finding or legal conclusion as required by Civ.R.
              53(D)(3)(b). A party may file written objections to the
              magistrate’s decision within fourteen days of the filing of the
              decision.