Beverly v. Clancy

2021 Ohio 3104

• Court: Ohio Court of Appeals
• Decided: September 3, 2021
• Docket: 110554
• Status: Published

Opinion

[Cite as Beverly v. Clancy, 2021-Ohio-3104.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

WILLIAM CREAD BEVERLY, :

Relator, : No. 110554 v. :

JUDGE MAUREEN CLANCY, ET AL., :

Respondents. :

JOURNAL ENTRY AND OPINION

JUDGMENT: COMPLAINT DISMISSED DATED: September 3, 2021

Writ of Mandamus Motion No. 547561 Order No. 548645

Appearances:

William Cread Beverly, pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kelli Kay Perk, Assistant Prosecuting Attorney, for respondents.

LARRY A. JONES, SR., P.J.:

William Cread Beverly, the relator, has filed a complaint for a writ of

mandamus. Judge Maureen Clancy and Magistrate Gina Lunsford, the respondents, have filed a Civ.R. 12(B)(6) motion to dismiss that is granted for the

following reasons.

Initially, we find that the complaint for a writ of mandamus is

procedurally defective because it is improperly captioned. Beverly styled this action

as “William Cread Beverly -vs- Judge Maureen Clancy, and Magistrate Lunsford.”

Pursuant to R.C. 2731.04, a complaint for a writ of mandamus must be brought in

the name of the state on relation of the applying person. Rust v. Lucas Cty. Bd. of

Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766; State ex rel. Simms

v. Sutula, 81 Ohio St.3d 110, 689 N.E.2d 564 (1998); Maloney v. Court of Common

Pleas of Allen Cty., 173 Ohio St. 226, 181 N.E.2d 270 (1962).

In addition, Beverly has failed to comply with Civ.R. 10(A), which

requires that the complaint must include the addresses of all parties. Lucas v. Gaul,

8th Dist. Cuyahoga No. 108082, 2019-Ohio-2449; Spann v. Calabrese, 8th Dist.

Cuyahoga No. 108290, 2019-Ohio-1660; Bandy v. Villanueva, 8th Dist. Cuyahoga

No. 96866, 2011-Ohio-4831.

Finally, the complaint for a writ of mandamus fails to state a claim

upon which relief can be granted. In order for this court to issue a writ of

mandamus, Beverly must demonstrate: (1) that Beverly possesses a clear legal right

to the relief prayed for, (2) that Judge Clancy and Magistrate Lunsford possess a

clear legal duty to perform the requested acts, and (3) that there exists no plain and

adequate remedy in the ordinary course of the law. State ex rel. Berger v.

McMonagle, 6 Ohio St.3d 28, 451 N.E.2d 225 (1983); State ex rel. Westchester v. Bacon, 61 Ohio St.2d 42, 399 N.E.2d 81 (1980); State ex rel. Heller, v. Miller, 61

Ohio St.2d 6, 399 N.E.2d 66 (1980); State ex rel. Harris v. Rhodes, 54 Ohio St.2d

41, 374 N.E.2d 641 (1978)

A thorough review of the complaint for mandamus fails to reveal that

Beverly has established a clear legal right or that Judge Clancy and Magistrate

Lunsford possess any legal duty that must be enforced. In addition, mandamus

cannot be employed to control judicial discretion or substitute for an appeal. State

ex rel. Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510;

State ex rel. Woods v. Gagliardo, 49 Ohio St.2d 196, 360 N.E.2d 705 (1977). Beverly

has failed to state a claim upon which relief can be granted and dismissal is

appropriate pursuant to Civ.R. 12(B)(6). State ex rel. Russell v. Thornton, 111 Ohio

St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966.

Accordingly, we grant the joint Civ.R. 12(B)(6) motion to dismiss.

Costs to Beverly. The court directs the clerk of courts to serve all parties with notice

of this judgment and the date of entry upon the journal as required by Civ.R. 58(B).

Complaint dismissed.

_______________________________ LARRY A. JONES, SR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and EILEEN A. GALLAGHER, J., CONCUR