State ex rel. Dukes v. Kolkovich

• Court: Ohio Court of Appeals
• Decided: June 17, 2026
• Docket: 31769
• Status: Published

Opinion

[Cite as State ex rel. Dukes v. Kolkovich, 2026-Ohio-2283.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO EX REL. LAVONTE L. DUKES

Relator C.A. No. 31769 v.

ELLIOT KOLKOVICH, SUMMIT COUNTY PROSECUTOR ORIGINAL ACTION IN MANDAMUS

Respondent

Dated: June 17, 2026

PER CURIAM.

{¶1} Relator, LaVonte Dukes, has petitioned this Court for a writ of mandamus against

Respondent, Elliot Kolkovich, the Summit County Prosecutor. He asks this Court to order the

prosecutor to release various records and to award him statutory damages, court costs, and

reasonable attorney fees. For the following reasons, this case must be dismissed.

{¶2} R.C. 2731.04 contains mandatory filing requirements for writs of mandamus.

Relevant to this case, it requires applications for writs of mandamus to be “verified by affidavit.”

R.C. 2731.04. “An affidavit is a written declaration under oath, made without notice to the adverse

party.” R.C. 2319.02. A complaint is subject to dismissal when a relator fails to notarize his

complaint or support it with a notarized affidavit. State ex rel. Reeves v. Chief of Police, Cedar

Point Police Dept., 2015-Ohio-2909, ¶ 4. 2

{¶3} When he first filed his complaint for writ of mandamus, Mr. Dukes included an

affidavit, but the affidavit was not notarized. An affidavit that is not notarized “is not under oath.”

Id. at ¶ 3. Accordingly, the affidavit Mr. Dukes attached to his complaint did not satisfy R.C.

2731.04’s filing requirement. See id. at ¶ 3-4.

{¶4} After Prosecutor Kolkovich moved for summary judgment, Mr. Dukes filed an

amended complaint for writ of mandamus. He also later filed an affidavit and a notarized

verification. The affidavit appeared to apply to certain evidence Mr. Dukes filed after he filed his

original petition. The notarized verification swore to the truth of “the facts set forth in the

foregoing Petition”, but no petition was included. Likewise, a second page of the notarized

verification swore to the truth of “the allegations contained in the [for]egoing complaint”, but no

complaint was included.

{¶5} Mr. Dukes never sought leave to amend his mandamus complaint. See Civ.R.

15(A); King v. Divoky, 2021-Ohio-1712, ¶ 39 (9th Dist.) (“Following the expiration of the

applicable 28-day period, a plaintiff must obtain either leave from the trial court or written consent

from the opposing party before filing an amended complaint.”). He also waited until after the

prosecutor moved for summary judgment to file an amended complaint. This Court has recognized

that “‘[a]n attempt to an amend a complaint following the filing of a motion for summary judgment

raises the spectre of prejudice.’” Brown v. FirstEnergy Corp., 2005-Ohio-712, ¶ 6, quoting

Johnson v. Norman Malone & Assoc., Inc., 1989 WL 154763, *5 (9th Dist. Dec. 20, 1989). Even

if this Court were to consider the affidavit and notarized verification Mr. Dukes filed after he filed

an amended complaint, those filings are incomplete, unclear, and do not otherwise satisfy R.C.

2731.04. Accordingly, his complaint is subject to dismissal. See Reeves at ¶ 4. 3

{¶6} Lastly, this Court would note that Mr. Dukes never paid a cost deposit at the time

of filing his original action. See Loc.R. 3.1(B). Loc.R. 3.1 requires a relator to pay a deposit or

seek a waiver of that deposit when filing an original action. Although Mr. Dukes filed an

application to proceed without prepayment of costs, he did not use the form/affidavit of indigency

approved the Ohio Public Defender’s Office. See Loc.R. 3.1(C)(1). Moreover, the declaration he

included in his application is not notarized, so it does not constitute an affidavit. See State ex rel.

Reeves at ¶ 3. Mr. Dukes later filed another application to proceed without prepayment of costs.

That filing included a notarized affidavit, but Mr. Dukes once again did not use the form/affidavit

of indigency approved by the Ohio Public Defender’s Office. See Loc.R. 3.1(C)(1). Accordingly,

he failed to comply with Loc.R. 3.1 when he filed his petition.

{¶7} Mr. Dukes’ petition is dismissed. Costs of this action are taxed to Mr. Dukes. The

clerk of courts is hereby directed to serve upon all parties not in default notice of this judgment

and its date of entry upon the journal. See Civ.R. 58(B).

SCOT A. STEVENSON FOR THE COURT

HENSAL, J. SUTTON, J. CONCUR.

APPEARANCES:

LaVONTE L. DUKES, Pro Se, Relator.

ELLIOT KOLKOVICH, Prosecuting Attorney, and JENNIFER M. PIATT, Assistant Prosecuting Attorney, for Respondent.