State ex rel. Moore v. Cuyahoga Cty. Court of Common Pleas

2016 Ohio 7228

Opinion

[Cite as State ex rel. Moore v. Cuyahoga Cty. Court of Common Pleas, 2016-Ohio-7228.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104537

STATE OF OHIO, EX REL. CARL L. MOORE, SR., ESTATE, ET AL.

RELATORS

vs.

CUYAHOGA COUNTY COURT OF COMMON PLEAS, ET AL. RESPONDENTS

JUDGMENT: COMPLAINT DISMISSED

Writ of Mandamus Motion No. 497463 Order No. 499470

RELEASE DATE: October 5, 2016 FOR RELATORS

Carl L. Moore, Sr., pro se Ronnie Moore, pro se 19230 Genesee Road Euclid, Ohio 44117

ATTORNEYS FOR RESPONDENTS

Timothy J. McGinty Cuyahoga County Prosecutor By: Nora Graham Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 ANITA LASTER MAYS, J.:

{¶1} Carl L. Moore, Sr. and Ronnie Moore have filed a complaint for a writ of

mandamus. The Moores seek a writ of mandamus in an attempt to compel Judge

Timothy McCormick, Magistrate Kevin Augustyn, and the Cuyahoga County Court of

Common Pleas to vacate the magistrate’s report and the motion for summary judgment,

ordering foreclosure of the property by sheriff’s sale, as granted on behalf of Bank of

America in a foreclosure action filed in Bank of Am. N.A. v. Moore, Cuyahoga C.P. No.

CV-14-826343. Judge McCormick, Magistrate Augustyn, and the Cuyahoga County

Court of Common Pleas have filed a joint motion to dismiss that is granted for the

following reasons.

{¶2} Initially, we find that the complaint for a writ of mandamus is procedurally

defective and thus subject to dismissal. R.C. 2731.04 provides that a complaint for a

writ of mandamus must be brought in the name of the state on relation of the person

applying and verified by affidavit. The complaint for a writ of mandamus is not

properly captioned and fails to contain a sworn affidavit. State ex rel. Huntington Ins.

Agency v. Duryee, 73 Ohio St.3d 530, 653 N.E.2d 349 (1995); Maloney v. Sacks, 173

Ohio St. 237, 181 N.E.2d 268 (1962); Gannon v. Gallagher, 145 Ohio St. 170, 60 N.E.2d

666 (1945). It must also be noted that the complaint for a writ of mandamus is defective

because the addresses of the respondents are not included within the caption of the

complaint. Civ.R. 10(A); State ex rel. Sherrills v. State, 91 Ohio St.3d 133, 742 N.E.2d 651 (2001); State ex rel. Tate v. Callahan, 8th Dist. Cuyahoga No. 85615,

2005-Ohio-1202.

{¶3} Also, Ronnie Moore has improperly filed this action on behalf of

Carl L. Moore, Sr. Ronnie Moore signed the original complaint for a writ of mandamus

as well as a subsequent “expedited petition for a writ of mandamus.” The second

complaint for a writ of mandamus was apparently signed under a durable power of

attorney designation. A search of the Supreme Court of Ohio’s attorney directory

reveals that Ronnie Moore is not licensed to practice law in the state of Ohio. Ronnie

Moore’s attempt to commence this action on Carl L. Moore, Sr.’s behalf constitutes the

unauthorized practice of law pursuant to R.C. Chapter 4705 and Gov.Bar R. XII. As a

consequence, we must dismiss this action filed on behalf of Carl L. Moore, Sr. In re

Traywick v. Fuerst, 8th Dist. Cuyahoga No. 96357, 2011-Ohio-947; In re Jerdine, 8th

Dist. Cuyahoga No. 91172, 2008 Ohio App.LEXIS 1648 (Apr. 21, 2008). It must also

be noted that a durable power of attorney, in fact, does not permit a person to prepare and

pursue legal filings and proceedings as an attorney at law. Disciplinary Counsel v.

Coleman, 88 Ohio St.3d 155, 724 N.E.2d 402 (2000).

{¶4} Further, Ronnie Moore possesses no standing to prosecute this original

action for mandamus. Ronnie Moore is not a real party in interest in the underlying

foreclosure action and does not possess any interest in the property subject to foreclosure.

State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 715 N.E.2d

1062 (1999); State ex rel. Village of Botkins v. Laws, 69 Ohio St.3d 383, 632 N.E.2d 897 (1994); State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St.2d

176, 298 N.E.2d 515 (1973).

{¶5} Finally, a writ of mandamus will not issue if there exists a plain and

adequate remedy in the ordinary course of the law. State ex rel. Ullman v. Hayes, 103

Ohio St.3d 405, 2004-Ohio-5469, 816 N.E.2d 245. Carl L. Moore, Sr. has or had an

adequate remedy in the ordinary course of the law, which addressed or could have

addressed the issue of an improper foreclosure. State ex rel. Ward v. Reed, 141 Ohio

St.3d 50, 2014-Ohio-4512, 21 N.E.3d 303; State ex rel. Crabtree v. Franklin Cty. Bd. of

Health, 77 Ohio St.3d 247, 673 N.E.2d 1281 (1997); and State ex rel. Sevayega v.

McMonagle, 122 Ohio St.3d 54, 2009-Ohio-2367, 907 N.E.2d 1180.

{¶6} Accordingly, we grant the joint motion to dismiss as filed by Judge

McCormick, Magistrate Augustyn, and the Cuyahoga County Court of Common Pleas.

Costs to Ronnie Moore and Carl L. Moore, Sr. The court directs the clerk of courts to

serve all parties with notice of this judgment and the date of its entry upon the journal as

required by Civ.R. 58(B).

{¶7} Complaint dismissed.

ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, P.J., and MELODY J. STEWART, J., CONCUR