Hinton v. VanSickle , 2021 Ohio 1536 ( 2021 )

[Cite as Hinton v. VanSickle, 2021-Ohio-1536.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
GERALD E. HINTON C.A. No. 21AP0012
Petitioner
v.
TIMOTHY R. VANSICKLE, JUDGE
ORIGINAL ACTION IN
Respondent PROCEDENDO
Dated: May 3, 2021
PER CURIAM.
{¶1} Petitioner, Gerald E. Hinton, has petitioned this Court for a writ of
procedendo to compel Respondent, Judge Timothy VanSickle, to rule on a motion to
vacate a void judgment. For the following reasons, this Court dismisses the petition sua
sponte.
{¶2} To obtain a writ of procedendo, Mr. Hinton must establish that he has a
clear legal right to require the judge to proceed, that the judge has a clear legal duty to
proceed, and that there is no adequate remedy available in the ordinary course of law.
State ex rel. Ward v. Reed, 141 Ohio St.3d 50, 2014-Ohio-4512, ¶ 9, citing State ex rel.
Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462 (1995).
Procedendo is the appropriate remedy when a court has refused to render a judgment or
C.A. No. 21AP0012
Page 2 of 3
has unnecessarily delayed proceeding to judgment. See, e.g., State ex rel. CNG Financial
Corp. v. Nadel, 111 Ohio St.3d 149, 2006-Ohio-5344, ¶ 20.
{¶3} Sua sponte dismissal of a petition, without notice, is appropriate only if the
petition is frivolous or the claimant obviously cannot prevail on the facts alleged in the
petition. See, e.g., State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, ¶
7. Mr. Hinton cannot prevail on the facts alleged in his petition because he did not name
the correct respondent.
{¶4} Mr. Hinton sought a writ of procedendo to order Judge VanSickle to rule
on his motion to vacate. According to Mr. Hinton’s complaint, and attachments, Mr.
Hinton filed a motion to vacate in case number 2014CRA000893. He later filed a motion
to amend to substitute the correct case number, 2014CRC-I000266, and the motion to
vacate was filed in that case. It is this amended motion to vacate that Mr. Hinton has
sought a writ of prohibition to order Judge VanSickle to rule on.
{¶5} A review of the dockets for the case numbers identified by Mr. Hinton
demonstrates that Mr. Hinton named the wrong respondent in this action. Case number
2014CRA000893 belongs to a Wayne County Municipal Court case which was presided
over by Judge VanSickle. Mr. Hinton was later indicted in Wayne County Common Pleas
Court case number 2014CRC-I000266. That is also the case in which Mr. Hinton filed
his amended motion to vacate that is the subject of this procedendo action.
{¶6} Mr. Hinton cannot demonstrate that he has a clear legal right to require
Judge VanSickle to proceed or that Judge VanSickle has a clear legal duty to rule on the
motion, as are required for this Court to grant the petition. See, e.g., Ward at ¶ 9. Judge
C.A. No. 21AP0012
Page 3 of 3
VanSickle, as a Wayne County Municipal Court judge, does not have the authority to rule
on a motion pending on the docket of a Wayne County Common Pleas Court case. Mr.
Hinton does not have a clear legal right to require Judge VanSickle to proceed to act on a
case that does not fall within his jurisdiction. Likewise, Judge VanSickle does not have
a clear legal duty to act based on the facts alleged in the petition. Because Mr. Hinton
cannot prevail based on the facts alleged in the petition, sua sponte dismissal is
appropriate.
{¶7} Mr. Hinton’s petition is dismissed. Costs are taxed to Mr. Hinton. The
clerk of courts is hereby directed to serve upon all parties not in default notice of this
judgment and its date of entry upon the journal. See Civ.R. 58(B).
DONNA J. CARR
FOR THE COURT
TEODOSIO, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
GERALD E. HINTON, Pro se, Petitioner.