[Cite as State ex. rel Brown v. Krichbaum, 2011-Ohio-2002.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE ex rel. ) CASE NO. 11 MA 44 JAMES EDWARD BROWN ) ) RELATOR ) ) VS. ) OPINION AND ) JUDGMENT ENTRY JUDGE R. SCOTT KRICHBAUM ) ) RESPONDENT )
CHARACTER OF PROCEEDINGS: Petition for Mandamus.
JUDGMENT: Petition Dismissed.
APPEARANCES:
For Relator: James Edward Brown, Pro se #153-044 Chillicothe Correctional Institution 15802 State Route 104 North P.O. Box 5500 Chillicothe, Ohio 45601
For Respondent: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: April 22, 2011 [Cite as State ex. rel Brown v. Krichbaum, 2011-Ohio-2002.] PER CURIAM.
{1} Relator James Edward Brown has filed a petition for writ of mandamus
in order to challenge his conviction and sentence in an unspecified case originating in
the Mahoning County Court of Common Pleas. Relator alleges that he was
mistakenly identified as the perpetrator of the crimes when, in fact, it was a different
man named “James Brown” who was the actual culprit. The state has filed an
answer and a Civ.R. 12(C) motion for judgment on the pleadings. In addition to
containing a number of procedural defects, the mandamus petition fails to state a
cause of action for which relief in mandamus may be rendered. For these reasons,
and those that follow, we hereby dismiss Relator’s petition.
{2} A writ of mandamus is defined as, “a writ, issued in the name of the
state to an inferior tribunal, a corporation, board, or person, commanding the
performance of an act which the law specially enjoins as a duty resulting from an
office, trust, or station.” R.C. 2731.01. A writ of mandamus may be granted if the
court finds that the relator: (1) has a clear legal right to the relief requested; (2)
respondent is under a clear legal duty to perform the requested act; and (3) that
relator has no plain and adequate remedy at law. State ex rel. Rogers v. Taft (1992),
64 Ohio St.3d 193, 594 N.E.2d 576; State ex rel. Hodges v. Taft (1992), 64 Ohio
St.3d 1, 3, 591 N.E.2d 1186.
{3} A writ of mandamus is an extraordinary remedy issued “only in cases of
extreme necessity, because of the absence or inadequacy of other remedies * * *.”
State ex rel. Utility Workers Union of America, AFL-CIO Local 349 v. Macelwane
(1961), 116 Ohio App. 183, 191, 187 N.E.2d 901. A relator who seeks such a writ -2-
has the burden to establish a right to mandamus. State ex rel. Fant v. Sykes (1986),
28 Ohio St.3d 90, 91, 28 OBR 185, 502 N.E.2d 597.
{4} Mandamus is not a substitute for appeal. State ex rel. Daggett v.
Gessaman (1973), 34 Ohio St.2d 55, 57, 63 O.O.2d 88, 295 N.E.2d 659. Thus,
mandamus does not lie to correct errors and procedural irregularities that may occur
during the course of a case. State ex rel. Jerninghan v. Gaughan (Sept. 26, 1994),
8th Dist. No. 67787. Further, if the relator had an adequate remedy at law,
regardless whether that remedy was sought, relief in mandamus is precluded. State
ex rel. Tran v. McGrath (1997), 78 Ohio St.3d 45, 676 N.E.2d 108. The right to a
direct appeal is an adequate remedy at law. State ex rel. Dix v. McAllister (1998), 81
Ohio St.3d 107, 108, 689 N.E.2d 561.
{5} We must initially point out that Relator's petition fails because it does
not meet the statutory requirements for a writ of mandamus as set forth in R.C.
2731.04. This statute requires that the petition must be filed in the name of the state
and not in the name of the party requesting relief. Blankenship v. Blackwell, 103
Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382; Maloney v. Court of Common
Pleas of Allen Cty. (1962), 173 Ohio St. 226, 227, 19 O.O.2d 45, 181 N.E.2d 270.
Relator’s petition is not filed in the name of the state. R.C. 2731.04 also requires that
the allegations in the petition must be verified by affidavit. Relator failed to file such
an affidavit. Procedural failures in filing the petition are sufficient grounds for
dismissal. Griffin v. State of Ohio, 7th Dist., No. 03 MA 221, 2004-Ohio-4993. -3-
{6} R.C. 2969.25(C)(1) requires an inmate who attempts to commence a
civil action against a government entity or employee to provide a certified statement
of the balance in his inmate account for each of the preceding six months, and a
statement setting forth other cash and valuables owned by the inmate. An inmate’s
filing of a petition for writ of mandamus is subject to dismissal for failure to adhere to
this statutory requirement. State ex rel. Buoscio v. Cronin, 7th Dist. No. 05-MA-17,
2006-Ohio-5266, ¶9.
{7} Respondent has filed a motion for judgment on the pleadings, citing the
procedural defects listed above. A Civ.R. 12(C) motion for judgment on the
pleadings is designed to review the pleadings, and only the pleadings, on matters of
law. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 166, 297 N.E.2d 113.
Dismissal under Civ.R. 12(C) is appropriate, “where a court (1) construes the material
allegations in the complaint, with all reasonable inferences to be drawn therefrom, in
favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff
could prove no set of facts in support of his claim that would entitle him to relief.”
State ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570, 664
N.E.2d 931. It is obvious that these pleadings do not meet the procedural
requirements for filing a petition for writ of mandamus, and we hereby sustain
Respondent’s motion.
{8} Respondent has also asserted that the petition for writ of mandamus
fails to state a justiciable claim for relief. A Civ.R. 12(B)(6) motion seeking dismissal
for failure to state a claim is a procedural motion to test the sufficiency of the -4-
complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio
St.3d 545, 548, 605 N.E.2d 378. In reviewing the complaint, the court must take all
the material allegations as admitted and construe all reasonable inferences in favor
of the nonmoving party. Id. “ ‘A complaint in mandamus states a claim if it alleges
the existence of the legal duty and the want of an adequate remedy at law with
sufficient particularity so that the respondent is given reasonable notice of the claim
asserted.’ ” Id., quoting State ex rel. Alford v. Willoughby (1979), 58 Ohio St.2d 221,
224, 12 O.O.3d 229, 390 N.E.2d 782.
{9} A court will dismiss a complaint for failure to state a claim upon which
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[Cite as State ex. rel Brown v. Krichbaum, 2011-Ohio-2002.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE ex rel. ) CASE NO. 11 MA 44 JAMES EDWARD BROWN ) ) RELATOR ) ) VS. ) OPINION AND ) JUDGMENT ENTRY JUDGE R. SCOTT KRICHBAUM ) ) RESPONDENT )
CHARACTER OF PROCEEDINGS: Petition for Mandamus.
JUDGMENT: Petition Dismissed.
APPEARANCES:
For Relator: James Edward Brown, Pro se #153-044 Chillicothe Correctional Institution 15802 State Route 104 North P.O. Box 5500 Chillicothe, Ohio 45601
For Respondent: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: April 22, 2011 [Cite as State ex. rel Brown v. Krichbaum, 2011-Ohio-2002.] PER CURIAM.
{1} Relator James Edward Brown has filed a petition for writ of mandamus
in order to challenge his conviction and sentence in an unspecified case originating in
the Mahoning County Court of Common Pleas. Relator alleges that he was
mistakenly identified as the perpetrator of the crimes when, in fact, it was a different
man named “James Brown” who was the actual culprit. The state has filed an
answer and a Civ.R. 12(C) motion for judgment on the pleadings. In addition to
containing a number of procedural defects, the mandamus petition fails to state a
cause of action for which relief in mandamus may be rendered. For these reasons,
and those that follow, we hereby dismiss Relator’s petition.
{2} A writ of mandamus is defined as, “a writ, issued in the name of the
state to an inferior tribunal, a corporation, board, or person, commanding the
performance of an act which the law specially enjoins as a duty resulting from an
office, trust, or station.” R.C. 2731.01. A writ of mandamus may be granted if the
court finds that the relator: (1) has a clear legal right to the relief requested; (2)
respondent is under a clear legal duty to perform the requested act; and (3) that
relator has no plain and adequate remedy at law. State ex rel. Rogers v. Taft (1992),
64 Ohio St.3d 193, 594 N.E.2d 576; State ex rel. Hodges v. Taft (1992), 64 Ohio
St.3d 1, 3, 591 N.E.2d 1186.
{3} A writ of mandamus is an extraordinary remedy issued “only in cases of
extreme necessity, because of the absence or inadequacy of other remedies * * *.”
State ex rel. Utility Workers Union of America, AFL-CIO Local 349 v. Macelwane
(1961), 116 Ohio App. 183, 191, 187 N.E.2d 901. A relator who seeks such a writ -2-
has the burden to establish a right to mandamus. State ex rel. Fant v. Sykes (1986),
28 Ohio St.3d 90, 91, 28 OBR 185, 502 N.E.2d 597.
{4} Mandamus is not a substitute for appeal. State ex rel. Daggett v.
Gessaman (1973), 34 Ohio St.2d 55, 57, 63 O.O.2d 88, 295 N.E.2d 659. Thus,
mandamus does not lie to correct errors and procedural irregularities that may occur
during the course of a case. State ex rel. Jerninghan v. Gaughan (Sept. 26, 1994),
8th Dist. No. 67787. Further, if the relator had an adequate remedy at law,
regardless whether that remedy was sought, relief in mandamus is precluded. State
ex rel. Tran v. McGrath (1997), 78 Ohio St.3d 45, 676 N.E.2d 108. The right to a
direct appeal is an adequate remedy at law. State ex rel. Dix v. McAllister (1998), 81
Ohio St.3d 107, 108, 689 N.E.2d 561.
{5} We must initially point out that Relator's petition fails because it does
not meet the statutory requirements for a writ of mandamus as set forth in R.C.
2731.04. This statute requires that the petition must be filed in the name of the state
and not in the name of the party requesting relief. Blankenship v. Blackwell, 103
Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382; Maloney v. Court of Common
Pleas of Allen Cty. (1962), 173 Ohio St. 226, 227, 19 O.O.2d 45, 181 N.E.2d 270.
Relator’s petition is not filed in the name of the state. R.C. 2731.04 also requires that
the allegations in the petition must be verified by affidavit. Relator failed to file such
an affidavit. Procedural failures in filing the petition are sufficient grounds for
dismissal. Griffin v. State of Ohio, 7th Dist., No. 03 MA 221, 2004-Ohio-4993. -3-
{6} R.C. 2969.25(C)(1) requires an inmate who attempts to commence a
civil action against a government entity or employee to provide a certified statement
of the balance in his inmate account for each of the preceding six months, and a
statement setting forth other cash and valuables owned by the inmate. An inmate’s
filing of a petition for writ of mandamus is subject to dismissal for failure to adhere to
this statutory requirement. State ex rel. Buoscio v. Cronin, 7th Dist. No. 05-MA-17,
2006-Ohio-5266, ¶9.
{7} Respondent has filed a motion for judgment on the pleadings, citing the
procedural defects listed above. A Civ.R. 12(C) motion for judgment on the
pleadings is designed to review the pleadings, and only the pleadings, on matters of
law. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 166, 297 N.E.2d 113.
Dismissal under Civ.R. 12(C) is appropriate, “where a court (1) construes the material
allegations in the complaint, with all reasonable inferences to be drawn therefrom, in
favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff
could prove no set of facts in support of his claim that would entitle him to relief.”
State ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570, 664
N.E.2d 931. It is obvious that these pleadings do not meet the procedural
requirements for filing a petition for writ of mandamus, and we hereby sustain
Respondent’s motion.
{8} Respondent has also asserted that the petition for writ of mandamus
fails to state a justiciable claim for relief. A Civ.R. 12(B)(6) motion seeking dismissal
for failure to state a claim is a procedural motion to test the sufficiency of the -4-
complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio
St.3d 545, 548, 605 N.E.2d 378. In reviewing the complaint, the court must take all
the material allegations as admitted and construe all reasonable inferences in favor
of the nonmoving party. Id. “ ‘A complaint in mandamus states a claim if it alleges
the existence of the legal duty and the want of an adequate remedy at law with
sufficient particularity so that the respondent is given reasonable notice of the claim
asserted.’ ” Id., quoting State ex rel. Alford v. Willoughby (1979), 58 Ohio St.2d 221,
224, 12 O.O.3d 229, 390 N.E.2d 782.
{9} A court will dismiss a complaint for failure to state a claim upon which
relief can be granted if it appears beyond doubt from the complaint that the relator
can prove no set of facts entitling him to recovery. O'Brien v. University Community
Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753.
{10} Relator has not alleged any legal right to relief, any duty imposed on
any person or tribunal that must legally be performed, or even what specific error
allegedly occurred in the vaguely referenced Mahoning County criminal proceeding.
As far as we can tell, Appellant claims to be caught in a case of mistaken identity
because he has a very common name, i.e., James Brown. If there had been an
issue regarding the proper identity of the defendant in a criminal matter involving the
Relator, this could easily have been dealt with at the trial level or in direct appeal of
the conviction and sentence in the criminal case. Mistaken identity is often dealt with
in the direct appeal of criminal convictions. See, e.g., State v. Monford, 190 Ohio
App.3d 35, 2010-Ohio-4732, 940 N.E.2d 634; State v. Baker (1996), 111 Ohio -5-
App.3d 313, 676 N.E.2d 143. We cannot conceive of any valid mandamus relief that
might arise from Relator’s petition. Therefore, we also grant Respondent’s Civ.R.
12(B)(6) motion to dismiss for failure to state a justiciable cause of action.
{11} For the foregoing reasons, we dismiss this petition for writ of
mandamus.
{12} Costs taxed against Relator. Final order. Clerk to serve notice as
provided by the Civil Rules.
Waite, P.J., concurs.
Donofrio, J., concurs.
DeGenaro, J., concurs.