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State ex rel Lesko v. Court Of Common Pleas Cuyahoga County

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA


April 15, 1999

STATE OF OHIO, EX REL. JOHN LESKO RELATOR
v.
COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO RESPONDENT

The opinion of the court was delivered by: James M. Porter, A.J.

PETITION FOR WRIT OF MANDAMUS MOTION NO. 4934

JOURNAL ENTRY AND OPINION

JUDGMENT WRIT DISMISSED.

On March 22, 1999, the relator, John Lesko, commenced this mandamus action. In the caption of his complaint he lists Cuyahoga Common Pleas as the respondent. However, in the text of his petition he alleges that on December 28, 1998, he appeared before the Garfield Heights Municipal Court which fined him $324.00 for an unspecified offense. He then states that he had open heart surgery on December 9, 1998, and that his doctor ordered him not to work until February 28, 1999. He then avers that he is indigent, that he has five children to support, that he is in debt because of the heart surgery, and that he had filed a motion to dismiss which was overruled on February 1, 1999.

Attached to his complaint are the following: (1) A copy of a letter, dated February 1, 1999, from the Garfield Heights Municipal Court stating In reply to your `Motion to Dismiss Fines and Costs', please be advised that your motion has been overruled. However, you have been granted and extension to pay, to March 29, 1999. ; (2) A note on Cleveland Clinic Foundation letterhead, stating that Mr. Lesko had undergone heart surgery on December 9, 1998, and may return to work on February 28, 1999; and (3) a copy of an Extended payment of fine agreement from the Garfield Heights Municipal Court in Case No. 98CRB01891, in which Mr. Lesko agreed to pay the fine of $250.00 and court costs of $74.00 by February 2, 1999. There is no supporting affidavit, and no demand for judgment for the relief to which Mr. Lesko claims to be entitled. For the following reasons, this court dismisses this action sua sponte.

First, the form of the petition is fatally defective. Either the wrong party is named as the respondent, or it is unclear who the respondent should be. The Cuyahoga Common Pleas is named as the respondent in the caption of the complaint, but the body of the complaint is directed toward the Garfield Heights Municipal Court.

R.C. 2731.04 requires that an application for a writ of mandamus must be by petition, in the name of the state on relation of the person applying. This failure to properly caption a mandamus action is sufficient grounds for dismissing the writ. Maloney v. Court of Common Pleas of Allen County (1962), 173 Ohio St. 226, 181 N.E.2d 270; State ex rel. Larry Calloway v. Court of Common Pleas of Cuyahoga County (Feb. 27, 1997), Cuyahoga App. No. 71699, unreported; State ex rel. Samuels v. Municipal Court (Nov. 22, 1994), Cuyahoga App. No. 67762, unreported; and State ex rel. White v. Villanueva (Oct. 6, 1993), Cuyahoga App. No. 66009, unreported.

Moreover, there is no demand for judgment as required by Civ.R. 8(A). Although the thrust of the petition seems to be that this court should compel the trial court to vacate the fine and court costs, that is not the only possible relief that could be sought. Other possibilities are (1) order the trial not to enforce the fine, (2) reduce the fine, (3) extend the time for payment of the fine indefinitely, (4) extend the time for payment to two years, the maximum permitted by R.C. 2929.51(C)(2), or (5) resentence Mr. Lesko. This lack of specificity renders the complaint unjusticiable.

Assuming arguendo that Mr. Lesko seeks to have this court compel the trial court to vacate the fine, mandamus is not the proper remedy. The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief, and (3) there must be no adequate remedy at law. Additionally, although mandamus may be used to compel a court to exercise judgment or to discharge a function, it may not control judicial discretion, even if that discretion is grossly abused. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Furthermore, mandamus is not a substitute for appeal or a means to review errors or irregularites, if any, in the trial court. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Daggett v. Gessman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, Paragraph Three of the Syllabus. Errors, if any, regarding sentencing or denial of motions are reviewable on appeal.

Additionally, Mr. Lesko failed to support his complaint with an affidavit specifying the details of the claim as required by Local Rule 45(B)(1)(a). State ex rel. Wilson v. Calabrese (Jan. 18, 1996), Cuyahoga App. No. 70077, unreported and State ex rel. Smith v. McMonagle (July 17, 1996), Cuyahoga App. No. 70899, unreported.

Accordingly, the court dismisses this writ action. Costs assessed against relator.

ANN DYKE, J., CONCURS.

JAMES M. PORTER, ADMINISTRATIVE JUDGE.

19990415

© 2001 VersusLaw Inc.



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