Fipps v. Day

2022 Ohio 3434

• Court: Ohio Court of Appeals
• Decided: September 27, 2022
• Docket: 111633
• Status: Published

Opinion

[Cite as Fipps v. Day, 2022-Ohio-3434.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

THEODIS FIPPS, :

Relator, : No. 111633 v. :

CHRISTOPHER E. DAY, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: COMPLAINT DISMISSED RELEASED AND JOURNALIZED: September 27, 2022

Writ of Mandamus Motion No. 558076

Appearances:

Theodis Fipps, pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Matthew T. Fitzsimmons, IV, Assistant Prosecuting Attorney, for respondent.

MARY J. BOYLE, J.:

Theodis Fipps, the relator, has filed an amended complaint for a writ

of mandamus through which he seeks an order from this court that requires

Magistrate Christopher E. Day “to vacate an interlocutory order as entered by him

without legal authority under Civ.R. 53(D)(1)(a) and Civ.R. 53(D)(2)(a)(i)” in Woods Cove III, LLC v. Fipps, Cuyahoga C.P. No. CV-16-863466. Magistrate Day has filed

an amended motion to dismiss that is granted for the following reasons. Disposition

of the complaint for mandamus is based upon procedural defects contained in the

amended complaint and a substantive review of the amended complaint for

mandamus.

I. The Facts

The following are garnered from Fipps’s original complaint for

mandamus, the amended complaint for mandamus, Magistrate Day original motion

to dismiss, the amended motion to dismiss, and the electronic docket maintained by

the Cuyahoga County Clerk of Courts in Woods Cove III, LLC v. Fipps, supra.1

On May 18, 2016, Woods Cove III, LLC (“Woods”) filed a tax

certificate foreclosure action against Fipps, in Cuyahoga C.P. No. CV-16-863466,

based upon delinquent property taxes due on real property located at 3634

Runnymeade Blvd., Cleveland Heights, Ohio 44121. On May 19, 2016, the trial court

judge referred the foreclosure action to Magistrate Day to try the issues of law and

fact arising therein and report without unnecessary delay. On August 17, 2018,

Woods filed a motion to substitute Usha Pillai IRA, LLC (“Pillai”) as the plaintiff in

the tax certificate foreclosure action, because the tax certificates underlying the

action were assigned to Pillai. On August 17, 2018, Magistrate Day granted the

motion to substitute Woods with Pillai as plaintiff.

1An appellate court is permitted to take judicial notice of publicly accessible online court dockets. State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E3.d. 516; State v. Estridge, 2d Dist. Miami No. 2021-CA-25, 2022-Ohio-208. On January 22, 2019, Magistrate Day issued a magistrate’s decision

that granted summary judgment on behalf of Pillai and specifically found that the

tax certificates were valid and ordered that the real property subject to the tax

certificates be sold at sheriff’s sale. No objections were filed with regard to the

magistrate’s decision. On February 14, 2019, the trial court adopted the magistrate’s

decision and held

[t]hat an order of Sale shall issue to the Sheriff or private selling officer directing him, without appraisal, to advertise and separately sell said parcel at public sale in the manner provided by law for the sale of real property on execution and according to Sections 5721.19 of the Ohio Revised Code and the applicable Rules of the Cuyahoga County Common Pleas Court, for not less than the total amount the findings herein which shall constitute the “minimum bid”; and that the Sheriff or private selling officer make due return to this Court, for further proceedings under law.

On July 17, 2019, the Sheriff reported a “no sale” of the real property subject to the

tax certificates.

On July 24, 2019, the trial court issued an order of forfeiture:

Pursuant to R.C. 5721.40, the parcel, having been offered for sale twice is hereby forfeited to the certificate holder. “Usha Piullai Ira, LLC”, substitute plaintiff herein. The clerk is instructed to certify a copy of this order to the county treasurer. The sheriff is ordered to prepare and record a good and sufficient deed conveying title to the parcel to “Usha Piullai IRA, LLC”. Writ of possession against defendant titleholder(s) ordered issued to certificate holder.

(Emphasis deleted.)

On March 31, 2022, Fipps filed a motion for entry of a final appealable

order based upon the claim that the trial court’s order of February 14, 2019, that

adopted the magistrate’s decision, was not a final appealable order because it contained a “rubber stamp” judge’s signature. On April 14, 2022, Magistrate Day

issued an order that denied Fipps’s motion for a final appealable order:

Defendant Theodis Fipps’s motion for entry of final appealable order is denied. As review of the court 2/14/19 judgment entry adopting magistrate’s decision reveals that the assigned judge affixed her signature to the entry and dated the entry as of 2/11/19. A further review of the judgment entry adopting the magistrate’s decision reveals that it adjudicated all claims pending before the court and complied with the requirements of Civ.R. 54(B). As a result of the (1) the judge’s dated signature appearing on the judgment entry; (2) the judgment entry adjudicating all claims before the court; and (3) the inclusion of language required by Civ.R. 54 in the judgment entry, the court’s 2/14/19 judgment entry adopting the magistrate’s decision constituted a final, appealable order as of that date. As the court previously entered a final appealable order in this case. The defendant’s motion for entry of final, appealable order is denied.

On June 17, 2022, Fipps filed a complaint for a writ of mandamus.

Fipps claimed that he was entitled to a writ of mandamus that required Magistrate

Day to vacate the August 17, 2018 order that substituted Pillai for Woods because he

possessed no legal authority to issue a substitution order. On July 6, 2022,

Magistrate Day filed a motion to dismiss the complaint for a writ of mandamus. On

July 15, 2022, Fipps filed an amended complaint for mandamus based upon the sole

claim that Magistrate Day possessed no legal authority to deny the motion for a final

appealable order. On July 19, 2022, Magistrate Day filed a second motion to

dismiss that addressed the amended complaint for mandamus. For the following

reasons, we grant Magistrate Days second motion to dismiss the amended

complaint for mandamus.

II. Procedural Defects A. Sole Claim in Original Complaint for Mandamus Abandoned

The original complaint for mandamus was based upon the claim that

Magistrate Day was without authority, under Civ.R. 53, to substitute Woods with

Pillai as plaintiff. The amended complaint was based upon the claim that Magistrate

Day was without legal authority, under Civ.R. 53, to deny the motion for a final

appealable order. The second amended complaint for mandamus did not contain

any claim that Magistrate Day was without authority to substitute Woods with Pillai

as plaintiff. It is well settled that an amended complaint constitutes an

abandonment of all previous complaints and claims. Grimm v. Modest, 135 Ohio

St.275, 20 N.E.2d 527 (1940); Soc. Bank & Trust Co. v. Zigterman, 82 Ohio App.3d

124, 611 N.E.2d 477 (3d Dist.1992); Nationwide Ins. Co. v. Case Corp., 3d Dist.

Hancock No. 5-02-43, 2002-Ohio-6091. By neglecting to include in the amended

complaint the claim that Magistrate Day’s lacked authority under Civ.R. 53 to

substitute Woods with Pillai as plaintiff, Fipps abandoned the claim. Hubbard v.

Cleveland Metro. School Dist., 8th Dist. Cuyahoga No. 98304, 2013-Ohio-1028.

B. Failure to Comply with Civ.R. 10(A)

Civ.R. 10(A) states that the caption of a complaint must include "the

names and addresses of all the parties * * *.” Fipps has not included the addresses

of any parties in the caption of his amended complaint. It is well settled that the

failure to properly caption a mandamus action is sufficient grounds for denying the

writ. State ex rel. Sherrills v. State, 91 Ohio St.3d 133, 742 N.E.2d 651 (2001); State

v. Elder, 11th Dist. Lake No. 2013-L-114, 2014-Ohio-871; Scott v. Sargeant, 6th Dist. Sandusky No. S-09-008, 2009-Ohio-1745. The failure to comply with Civ.R. 10(A)

prevents this court from granting the request for a writ of mandamus.

C. Improper Caption

We also find that Fipps’s complaint is defective because it is

improperly captioned. Fipps styled this action as “Theodis Fipps vs. Christopher E.

Day.” 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 person applying for the writ of

mandamus. 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). The failure to properly caption the complaint for mandamus

mandates dismissal. Blankenship v. Blackwell, 103-Ohio-St.3d 567, 2004-Ohio-

5596, 817 N.E.2d 382; Litigaide, Inc. v. Lakewood Police Dept. Custodian of

Records, 75 Ohio St. 3d 508, 664 N.E.2d 521 (1996).

III. Mandamus Requirements and Analysis

A. Requirements for Mandamus

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

upon which relief can be granted. For this court to issue a writ of mandamus, Fipps

must demonstrate: (1) that Fipps possesses a clear legal right to the relief prayed for,

(2) that Magistrate Day possess a clear legal duty to perform the requested act, and

(3) there exists or existed 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).

B. Substantive Review of Claim for Mandamus

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

Fipps has established he possessed a clear legal right to have the order denying the

motion for a final appealable order vacated, or that Magistrate Day possessed any

legal duty to vacate the order that denied the motion for a final appealable order.

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).

Initially, we find that Magistrate Day possessed the necessary authority to issue a

ruling with regard to Fipps’s motion for a final appealable order. Civ.R. 53(C)(1)(a)

and 53(C)(3) specifically provide that a magistrate possesses the necessary authority

to determine any motion to regulate all proceedings. Van Osdell v. Van Osdell, 12th

Dist. Warren No. CA2007-10-123, 2008-Ohio-5843; Myles v. Johnson, 2d Dist.

Montgomery No. 21600, 2007-Ohio-2963.

In addition, the claim that the trial court did not sign the judgment of

February 22, 2019, that adopted Magistrate Day’s magistrate decision, is without

merit. Exhibit “C” attached to the amended complaint for mandamus includes only

the first page of the trial court’s order of February 11, 2019, and specifically includes

the language of “OSJ” which refers to “order see journal.” “OSJ” means that the judgment signed is attached to the order. Moore v. Russo, 8th Dist. Cuyahoga No.

105448, 2017-Ohio-9166.

Further review of the trial court’s order adopting the magistrates

decision clearly demonstrates an electronic signature. Loc.R. 19.1 of the Cuyahoga

County Common Pleas Court General Division, allows for the use of an electronic

signature.

We find no prohibition to the use of an electronic signature on the type of journal entries at issue. The use of electronic signatures is authorized by the local rules and does not conflict with the criminal rules or any existing law providing it is the judge who authorizes and is in control of its use.

Defendant acknowledges that the journal entries he is challenging all contain electronic signatures. There is no evidence in this record, nor any contention by the defendant, that would lead us to suspect that the electronic signatures were authorized by anyone other than the judge in this case. Accordingly, the use of the electronic signature by the judge constituted the attestation of a judicial act. Accordingly, the journal entries at issue comply with the Local Rules, are not inconsistent with the criminal or civil rules of procedure, and were valid under the law of this jurisdiction. See State v. Nicholson, Cuyahoga App. No. 91652, 2009 Ohio 3592, P9-11.

State v. Pinkney, 8th Dist. Cuyahoga No. 91861, 2010-Ohio-237, ¶ 37-38.

It must also be noted that Fipps possessed an adequate remedy at law

through an appeal of the order of foreclosure. Fipps also possessed other adequate

remedies of law through: (1) the filing of an objection to Magistrate Day’s motion

rulings, under Civ.R. 53(D)(2)(b), which provides that “[a]ny party may file a

motion with the court to set aside a magistrate’s order. The motion shall state the

moving party’s reasons with particularity and shall be filed not later than ten days after the magistrate’s order is filed”; and (2) the filing of objections to the

Magistrate’s Decision under Civ.R. 53(D)(3)(b), which provides that “[a] party may

file written objections to a magistrate’s decision within fourteen days of the filing of

the decision, whether or not the court has adopted the decision during that fourteen-

day period as permitted by Civ.R. 53(D)(4)(e)(i).” The failure to employ the

adequate remedies at law available to Fipps prevents this court from issuing a writ

of mandamus. State ex rel. Roush v. Montgomery, 156 Ohio St. 3d 351, 2019-Ohio-

932, 126 N.E.3d 1118; State ex rel. Kerns v. Simmers, 153 Ohio St. 3d 103, 2018-

Ohio-256, 101 N.E.3d 430.

C. Mandamus and Vain Act

Mandamus will not issue to compel a vain act. State ex rel. Julnes v.

S. Euclid City Council, 130 Ohio St.3d 6, 2011-Ohio-4485, 955 N.E.2d 363; State ex

rel. Moore v. Malone, 96 Ohio St.3d 417, 2002-Ohio-4821, 775 N.E.2d 812;

State ex rel. Keith v. Gaul, 8th Dist. Cuyahoga No. 102875, 2015-Ohio-3480. Where

a defendant in a foreclosure action fails to obtain a stay of the distribution of the

proceeds obtained from the sale of the foreclosed real property, subsequent legal

action therefrom is moot because the matter has been extinguished through

satisfaction of the judgment.

Where the court rendering judgment has jurisdiction of the subject- matter of the action and of the parties, and fraud has not intervened, and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away from the defendant the right to appeal or prosecute error or even to move for vacation of judgment. (Emphasis added.) Blodgett v. Blodgett, 49 Ohio St.3d 243, 245, 551 N.E.2d

1249 (1990); Rauch v. Noble, 169 Ohio St. 314, 316, 159 N.E.2d 451 (1959);

Lynch v. Bd. of Edn., 116 Ohio St. 361, 156 N.E. 188 (1927), paragraph three

of the syllabus.

Because all funds from the sale of the real property have been

distributed, title to the real property transferred, and no claim of fraud has been

made by Fipps, Magistrate Day as well as the trial court lack jurisdiction to issue any

further orders in the foreclosure action. To issue a writ of mandamus would

constitute a vain act because Fipps is not entitled to any relief. Ditech Fin., L.L.C. v.

VAT Mgmt., L.L.C., 8th Dist. Cuyahoga No. 109209, 2020-Ohio-5000; HSBC Bank,

USA, Natl. Assn. v. Surrarrer, 8th Dist. Cuyahoga No. 106316, 2019-Ohio-1539.

Accordingly, we grant Magistrate Day’s second motion to dismiss.

Costs to Fipps. 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.

MARY J. BOYLE, JUDGE

EILEEN T. GALLAGHER, P.J., and EMANUELLA D. GROVES, J., CONCUR