Procedendo Mootness and Appellate Forfeiture: Failure to Oppose Summary Judgment Bars New “Final Appealable Order” Attacks

I. Introduction

State ex rel. Martin v. McCormick, 2026-Ohio-568 is an original-action appeal arising from a request for a writ of procedendo against a common pleas judge. The appellant, Tramaine E. Martin (pro se), sought an order compelling Judge Timothy McCormick to “properly journalize” an alleged ruling that purportedly granted Martin’s motion for leave to supplement a successive postconviction petition and his motion to proceed to a hearing. Martin relied principally on a docket notation indicating “GRANTED.”

While the procedendo case was pending, Judge McCormick denied Martin’s successive petition for postconviction relief as untimely (March 27, 2025) and moved for summary judgment, arguing the writ request had become moot. Martin did not file a timely opposition in the court of appeals.

The Supreme Court of Ohio affirmed the Eighth District’s summary judgment for the judge, resolving two central issues: (1) whether the later denial of the underlying postconviction petition mooted Martin’s procedendo request; and (2) whether Martin could, for the first time on appeal, challenge the validity/finality of the judge’s postconviction denial entry to avoid mootness.

II. Summary of the Opinion

The court held that Judge McCormick’s denial of Martin’s successive petition for postconviction relief rendered moot Martin’s request for procedendo relief related to motions ancillary to that petition (leave to supplement and hearing). Because the judge demonstrated the denial via summary-judgment evidence and Martin filed no response, no genuine issue of material fact existed and summary judgment was properly granted.

The court further held Martin forfeited his appellate argument that the postconviction denial was not a final, appealable order (due to alleged defects such as labeling, time-stamping, and signature). The forfeiture followed from two linked principles: arguments not raised in the court of appeals are not considered when first raised on appeal, and the failure to raise arguments in response to a summary-judgment motion forfeits those arguments for appellate review.

III. Analysis

A. Precedents Cited

1. The nature and limits of procedendo

• State ex rel. Bechtel v. Cornachio, 2021-Ohio-1121 (quoting State ex rel. Mignella v. Indus. Comm., 2019-Ohio-463): supplied the baseline definition of procedendo as an extraordinary remedy ordering a lower tribunal to proceed to judgment, and reiterated the key limitation: procedendo compels a court to act, not to act in a particular way.
• State ex rel. Dodson v. Phipps, 2024-Ohio-4928 (quoting State ex rel. Culgan v. Collier, 2013-Ohio-1762): framed when procedendo is appropriate—refusal to enter judgment or unnecessary delay—and restated the three elements (clear legal right, clear legal duty, and lack of adequate remedy in the ordinary course of law).

These authorities shaped the court’s focus: once the trial judge issued a judgment disposing of the underlying postconviction proceeding, the premise for procedendo relief (to force the court to proceed) evaporated.

2. Summary-judgment review in original actions

• State ex rel. Whittaker v. Lucas Cty. Prosecutor's Office, 2021-Ohio-1241: provided the de novo standard of review and the familiar three-part Civ.R. 56(C) test (no genuine issue, entitlement as a matter of law, and only one conclusion when evidence construed most strongly for the nonmovant).

Whittaker anchored the procedural posture: because the judge met the Civ.R. 56 burden with evidence of the postconviction denial, the onus shifted to Martin to identify a triable factual issue or legal impediment—something he did not do in the court of appeals.

3. Forfeiture of arguments first raised on appeal, including in the summary-judgment context

• State v. LaRosa, 2021-Ohio-4060 and Portage Cty. Bd. of Commrs. v. Akron, 2006-Ohio-954: supplied the general rule that arguments raised for the first time on appeal will not be considered.
• Sovereign Bank, N.A. v. Singh, 2015-Ohio-3865 (9th Dist.): was cited for the specific proposition that failing to raise an argument in response to a summary-judgment motion forfeits the argument for appellate review.
• The court reinforced this proposition with multi-district examples: Scott Holding Co., Inc. v. Turbo Restaurants US, L.L.C., 2024-Ohio-5240 (5th Dist.); Budz v. Somerfield, 2023-Ohio-155 (2d Dist.); Powell v. Cleveland, 2022-Ohio-4286 (8th Dist.); U.S. Specialty Ins. Co. v. Hoffman, 2020-Ohio-4114 (10th Dist.).
• Leonard v. MBB Partnership, 2016-Ohio-3534 (10th Dist.): was used as an application example—when a party fails to object or raise an evidentiary/summary-judgment argument below, it is waived on appeal.

Collectively, these cases did more than restate a familiar appellate maxim. They supplied a concrete, procedural holding in the original-action setting: when a respondent supports summary judgment with evidence establishing mootness, the relator must timely contest both the facts and any legal counterarguments (such as the validity or finality of the allegedly mooting entry), or lose the ability to use those counterarguments on appeal.

4. The case’s procedural backstory

• State ex rel. Martin v. McCormick, 2024-Ohio-6187 (8th Dist.) and 2025-Ohio-4398: explained Martin’s prior procedendo attempt and its failure due to noncompliance with R.C. 2969.25(C)(1) (affidavit requirements for inmate fee waivers), highlighting a recurring theme: procedural defaults can be dispositive in extraordinary-writ litigation.

B. Legal Reasoning

1. Mootness: once the court proceeds to judgment, procedendo typically ends

Martin’s requested writ sought to compel “journalization” of an alleged grant of two motions (leave to supplement and to proceed to hearing) tied to a successive postconviction petition. The Supreme Court treated the later denial of the successive postconviction petition as the determinative event: because the trial judge had “proceed[ed] to judgment” on the underlying matter, procedendo no longer had work to do. In practical terms, any question about whether ancillary motions were “granted” became irrelevant once the petition itself was denied—there was no longer a pending postconviction proceeding for supplementation or a hearing.

2. Summary-judgment mechanics: unopposed evidence + no response = no factual dispute

Judge McCormick supported summary judgment with evidence that he had denied the successive petition. Under Civ.R. 56 principles (as summarized in State ex rel. Whittaker v. Lucas Cty. Prosecutor's Office, 2021-Ohio-1241), Martin needed to respond by pointing to specific facts or legal grounds showing a genuine issue or defeating mootness. He did not, so the record contained no developed controversy for the court of appeals (or the Supreme Court) to resolve.

3. Forfeiture: a party cannot sandbag summary judgment and litigate new theories on appeal

On appeal to the Supreme Court, Martin attempted to revive the case by arguing the mooting entry was “invalid” and not a final, appealable order because it was not labeled “judgment,” not time-stamped, and not signed by a judge. Even if such defects could matter in another posture, the Supreme Court did not reach the merits. Instead, it treated the contention as forfeited because it was not presented to the Eighth District in opposition to summary judgment.

The opinion’s doctrinal move is notable: it marries the general “no new arguments on appeal” rule (State v. LaRosa, 2021-Ohio-4060; Portage Cty. Bd. of Commrs. v. Akron, 2006-Ohio-954) to a summary-judgment-specific forfeiture principle (Sovereign Bank, N.A. v. Singh, 2015-Ohio-3865 and the other district cases). The result is a clear procedural directive: if a relator does not respond to a summary-judgment motion in an original action, appellate courts will not entertain new legal theories raised later to avoid the consequences of the unopposed motion.

C. Impact

• Original actions will be policed by ordinary civil-procedure discipline. The court reaffirms that extraordinary-writ practice does not relax the obligation to timely contest summary judgment. Especially for pro se inmate litigants, the decision underscores that failing to respond can be outcome-determinative.
• Mootness can be established efficiently by post-filing developments. Respondent judges (and other public officials) can defeat procedendo by showing the action sought to be compelled has already occurred; once that showing is made, the burden shifts to the relator to articulate a preserved and legally cognizable reason why the case is not moot.
• Challenges to the “validity” of a mooting entry must be raised immediately. After this decision, litigants should expect courts to require that any attack on whether an entry truly moots a writ claim (e.g., signature, time stamp, journalization formalities, finality) be presented in the summary-judgment record—not held in reserve for appellate briefing.
• Narrowing of procedendo’s practical use. The opinion reinforces that procedendo is designed to combat inaction/delay. Once a trial court acts—rightly or wrongly—the litigant’s route is usually the ordinary appellate process, not continued writ litigation about intermediate procedural steps.

IV. Complex Concepts Simplified

Writ of procedendo

An order from a higher court telling a lower court to move a case forward and issue a decision. It cannot force the lower court to decide a particular way; it can only force the court to decide.

Journalize / journalization

The formal act of entering a court’s order or judgment on the official journal/docket. Parties often care because journalization can affect enforceability and appeal deadlines. Here, Martin sought a writ compelling what he characterized as proper journalization of a purported grant of motions.

Mootness

A case is moot when there is no longer a live dispute the court can remedy. If the judge has already issued the judgment the relator claims the judge is refusing to issue, procedendo usually becomes moot.

Summary judgment

A procedure to resolve a case without a trial when there is no genuine dispute of material fact and the moving party is entitled to win as a matter of law. If the nonmoving party does not respond with evidence or preserved legal arguments, the moving party’s showing may be uncontested.

Forfeiture (or waiver) on appeal

If you do not raise an argument at the appropriate time in the lower court, you generally cannot raise it for the first time on appeal. This opinion applies that principle specifically to arguments that could have been made in opposition to a summary-judgment motion.

V. Conclusion

State ex rel. Martin v. McCormick, 2026-Ohio-568 reinforces two interlocking procedural rules in Ohio extraordinary-writ practice: (1) a procedendo claim becomes moot when the respondent judge proceeds to judgment on the underlying matter; and (2) a relator who fails to oppose summary judgment forfeits appellate review of new arguments—here, an attempted “final appealable order” attack on the very entry that mooted the writ claim.

The decision’s broader significance is its insistence that extraordinary remedies remain governed by ordinary procedural rigor: litigants must timely contest summary-judgment motions with both facts and legal theories, or the case will likely end at the threshold—without merits review of belated arguments.