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State ex rel. Washington v. D'Apolito

Court of Appeals of Ohio, Seventh District, Mahoning

December 12, 2019

STATE OF OHIO, ex rel. WAYMAN E. WASHINGTON, Relator,
v.
JUDGE LOU A. D'APOLITO, COMMON PLEAS COURT JUDGE, Respondent.

         Writ of Mandamus

         JUDGMENT: Dismissed.

          Wayman E. Washington, Pro se, Inmate No. 632-492, for Relator.

          Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, for Respondent.

          BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.

          OPINION AND JUDGMENT

          PER CURIAM.

         {¶1} Relator Wayman E. Washington, proceeding on his own behalf, filed a petition for a writ of mandamus on December 13, 2017, seeking to have this Court direct Respondent Mahoning County Common Pleas Court Judge R. Scott Krichbaum to vacate a decree of foreclosure for lack of personal jurisdiction, arguing he was never served with the foreclosure complaint. Respondent filed a combined answer and motion to dismiss. On February 5, 2018, Relator filed an amended complaint changing the named respondent from Judge Krichbaum to Judge Lou A. D'Apolito, because it was Judge D'Apolito's predecessor in office who had entered the foreclosure decree. This Court dismissed Relator's original complaint on the basis that he had an adequate remedy at law by way of direct appeal, implicitly dismissing Relator's amended complaint on the same basis. State ex rel. Washington v. Krichbaum, 7th Dist. Mahoning No. 17 MA 0176, 2018-Ohio-626.

         {¶2} Relator appealed to the Ohio Supreme Court. In a split decision, the Court reversed our determination, holding "the availability of a direct appeal is not an adequate remedy when there was a jurisdictional defect." State ex rel. Washington v. D'Apolito, 156 Ohio St.3d 77, 2018-Ohio-5135, 123 N.E.3d 947, ¶ 8. The Court acknowledged that an entry on a copy of the docket attached to Relator's complaint might reflect that proper service was achieved prior to the default judgment, but it also indicates that a number of other attempts to serve him by certified mail and personally were unsuccessful. Id. at ¶ 10. While the Court acknowledged the evidentiary value of the docket entries, it found their evidentiary value was diminished because the docket also contained entries indicating unsuccessful attempts at service. Id. at ¶ 11. The Court concluded that this evidence was insufficient to allow dismissal of the mandamus complaint because it would prematurely require us to weigh the evidence and make an inference against Relator. Id.

         {¶3} The Court remanded the case back to us for further proceedings. As an initial matter, we note that we are proceeding on Relator's timely filed amended complaint, which substituted Judge Lou A. D'Apolito for Judge R. Scott Krichbaum as Respondent. Id. at ¶ 15. The underlying foreclosure case was presided over entirely by Judge Timothy E. Franken and he was the judge who entered the foreclosure decree. Judge Lou A. D'Apolito succeeded Judge Franken on December 1, 2008. Since the case had been closed, Judge D'Apolito never had a reason or an occasion to preside over any proceedings relating to the foreclosure case. However, because Judge D'Apolito held the seat formerly held by Judge Franken when Relator filed this mandamus action, he sought to have Judge D'Apolito substituted as the appropriate party-respondent. We also note that regardless of which name of one of the five judges who sit on the Mahoning County Common Pleas Court, General Division, appears in the caption of this case as respondent, the prosecuting attorney remains statutory counsel for the Respondent. R.C. 309.09(A); State ex rel. Gains v. Maloney, 102 Ohio St.3d 254, 2004-Ohio-2658, 809 N.E.2d 24, ¶ 12.

         {¶4} This Court filed a judgment entry granting the parties forty-eight (48) days to file motions for summary judgment and responsive motions, and set the matter for a non-oral hearing. Respondent has timely filed a Civ.R. 56 motion for summary judgment. Relator has not filed any response, nor has he filed any other pleadings in this matter on remand.

         {¶5} Turning to the facts in this matter, in 2007, Relator and his wife were named as defendants in a Mahoning County Common Pleas Court foreclosure suit. Deutsche Bank Natl. Trust Co. v Washington, Mahoning C.P. No. 2007 CV 03029. The case resulted in a default judgment and decree of foreclosure against the Washingtons. No appeals were taken.

         {¶6} Over nine years after the property was sold at sheriffs sale, Relator filed in this Court a complaint for a writ of mandamus on December of 2017, seeking to compel Respondent to vacate the judgment entry against him in his foreclosure case on the grounds that "personal jurisdiction was never obtained against the Relator because "Relator * * * was never properly served a copy of the complaint [nor] did the relator appear in the case." (12/13/17 Writ of Mandamus, p. 1.) In support, Relator attached a copy of the docket from the foreclosure action, which revealed two instances of successful service on Relator, along with some unsuccessful attempts.

         {¶7} In order to be entitled to summary judgment, the moving party must demonstrate that (1) no genuine issue of material fact exists, (2) the movant is entitled to judgment as a matter of law, and (3) even construing the evidence most strongly in favor of the nonmovant, reasonable minds could come to but one conclusion, and that conclusion is adverse to the nonmoving party. State ex rel. Cochran v. Boardman Twp. Bd. of Trustees, 196 Ohio App.3d 185, 2011-Ohio-4255, 962 N.E.2d 852, ¶ 7 (7th Dist.), quoting State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997). Further, the nonmoving party may not merely rest on its allegations: a properly supported motion for summary judgment forces the nonmoving party to produce evidence on any issue for which it bears the burden of proof. Dresher v. Burt, 75 Ohio St.3d 280, 293-294, 662 N.E.2d 264 (1996).

         {¶8} In regard to a writ of mandamus, a relator seeking a writ of mandamus bears the burden of establishing a clear legal right to the relief requested, a clear legal duty on the part of the respondent to provide the relief, and that the relator lacks an adequate remedy in the ordinary course of the law. State ex rel. Bradford v. Dinkelacker, 146 Ohio St.3d 219, 2016-Ohio-2916, 54 N.E.3d 1216, ¶ 5. An adequate remedy at law is defined as one that is "complete, beneficial, and speedy." State ex rel. Kerns v. Simmers,153 Ohio St.3d 103, 2018-Ohio-256, 101 N.E.3d 430, ΒΆ 10. Further, "[i]f any of ...


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