Court of Appeals of Ohio, Seventh District, Mahoning
STATE OF OHIO, ex rel. WAYMAN E. WASHINGTON, Relator,
JUDGE LOU A. D'APOLITO, COMMON PLEAS COURT JUDGE, Respondent.
E. Washington, Pro se, Inmate No. 632-492, for Relator.
J. Gains, Mahoning County Prosecutor and Atty. Ralph M.
Rivera, Assistant Prosecuting Attorney, for Respondent.
BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb,
OPINION AND JUDGMENT
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,
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.
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.
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.
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.
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
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).
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, ¶ 10. Further, "[i]f
any of ...