[Cite as State ex rel. Vance v. Kontos, 2014-Ohio-5080.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE ex rel., DAVID VANCE, : PER CURIAM OPINION
Petitioner, : CASE NO. 2014-T-0078 - vs - :
HON. PETER J. KONTOS, JUDGE, :
Respondent. :
Original Action for Writ of Mandamus.
Judgment: Petition dismissed.
Harry J. DePietro, The DePietro Law Office, L.L.C., 7 West Liberty Street, Girard, OH 44420 (For Petitioner).
Dennis Watkins, Trumbull County Prosecutor, and William J. Danso, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W, Warren, OH 44481-1092 (For Respondent).
PER CURIAM.
{¶1} This action in mandamus is presently before this court for consideration of
the motion to dismiss filed by respondent, Judge Peter J. Kontos of the Trumbull County
Court of Common Pleas. Respondent argues that the petition filed by relator, David
Vance, fails to state a claim on which relief can be granted because the petition fails to
satisfy any of the necessary elements for the issuance of a writ of mandamus. For the
following reasons, we hold that that the dismissal of this action is warranted. {¶2} Relator alleges in his petition that he was named as a defendant in a
foreclosure action, Case No. 2012 CV 564, filed in the Trumbull County Court of
Common Pleas by Bank of America, N.A. (“BAC”), which is on respondent’s docket.
{¶3} Relator alleges that BAC recently settled a case filed by the Federal
Securities and Exchange Commission and a civil action filed by the United States
Department of Justice in unspecified cases filed in unspecified courts wherein, relator
alleges, BAC admitted defrauding investors by selling them securities that were
“backed” by mortgages, which were “predicated on fraudulent practices.”
{¶4} Relator alleges that, although he was the victim of such fraudulent
practices when he bought his home, BAC pursued said foreclosure action against him.
{¶5} Relator alleges that the fraud was reported in “news coverage” in August
2014, but that the parties in the foregoing federal cases have said little about said
settlements or admissions and that relator is thus unable to produce any evidence at
this time demonstrating BAC’s alleged admission of fraud.
{¶6} Relator alleges that respondent entered a foreclosure decree in favor of
BAC in said foreclosure case and that a writ of possession has issued.
{¶7} Based on BAC’s alleged fraud, relator seeks a writ of mandamus to
compel respondent to vacate all judgments and the writ of possession entered in the
foreclosure action and to dismiss said action.
{¶8} In general, “[a] motion to dismiss for failure to state a claim upon which
relief can be granted is procedural and tests the sufficiency of the complaint.” State ex
rel. Hanson v. Guernsey Cty. Bd. Of Commrs., 65 Ohio St.3d 545, 548 (1992). In
considering the propriety of the dismissal, “we accept all factual allegations in the
2 complaint as true and draw all reasonable inferences in the non-moving party’s favor.”
Transky v. Ohio Civil Rights Comm’n., 193 Ohio App.3d 354, 2011-Ohio-1865, ¶11
(11th Dist.). If, after considering the complaint accordingly, there is no set of facts
consistent with the complaint that would permit recovery, the motion will be granted. Id.
{¶9} A writ of mandamus is defined as “a writ, issued in the name of the state
to an inferior tribunal, * * * commanding the performance of an act which the law
specially enjoins as a duty resulting from an office * * *.” R.C. 2731.01. “[A] writ of
mandamus is generally employed as a means of requiring a public official to complete
an act which he is legally obligated to perform.” State ex rel. Dehler v. Kelly, 11th Dist.
Trumbull No. 2008-T-0062, 2009-Ohio-2534, ¶10. To be entitled to a writ of
mandamus, the relator must be able to prove that: (1) he has a clear legal right to have
a specific act performed by a public official; (2) the public official has a clear legal duty
to perform that act; and (3) there is no legal remedy that could be pursued to adequately
resolve the matter. State ex rel. Appenzeller v. Mitrovich, 11th Dist. Lake No. 2007-L-
125, 2007-Ohio-6157, ¶5.
{¶10} Based on our review of the petition, there is no set of facts consistent with
that pleading that would entitle relator to a writ of mandamus.
{¶11} With respect to the first element of a writ of mandamus, relator does not
allege he has a clear legal right to the writ of mandamus he seeks.
{¶12} Further, relator does not meet this first element because he does not
properly allege a claim for fraud against BAC. The elements of a cause of action for
fraud are as follows: (1) a representation; (2) which is material to the transaction; (3)
made falsely, with knowledge of its falsity, or with such recklessness as to its truth or
3 falsity that knowledge may be inferred; (4) with the intent to mislead another into relying
on it; (5) justifiable reliance on the representation; and (6) an injury proximately caused
by the reliance. Burr v. Bd. of Cty. Commrs. Stark Cty., 23 Ohio St.3d 69 (1986),
paragraph two of the syllabus. Therefore, to avoid dismissal, the complaint must set
forth expressly or by inference the necessary elements of fraud. Zuber v. Dept. of Ins.,
34 Ohio App.3d 42, 45 (10th Dist.1986). Here, relator does not allege expressly or by
implication any of the required elements of fraud.
{¶13} Further, Civ.R. 9(B) provides that when a claim is asserted that is based
on fraud, the circumstances constituting fraud must be stated with particularity. In order
to meet this obligation, the claim must include “‘[t]he “circumstances constituting fraud”
includ[ing] the time, place and content of the false representation; the fact represented;
the identification of the individual giving the false representation; and the nature of what
was obtained or given as a consequence of the fraud.’” Brown v. Sasak, 11th Dist.
Ashtabula No. 2009-A-0054, 2010-Ohio-2676, ¶16, quoting Aluminum Line Products
Co. v. Brad Smith Roofing Co., Inc., 109 Ohio App.3d 246, 259 (8th Dist.1996).
{¶14} Here, relator makes vague allegations that BAC engaged in fraud in
selling securities to investors where the mortgages “backing” said securities were based
on fraudulent banking practices and that he was the victim of such fraudulent practices.
However, the petition does not allege any of the circumstances constituting the alleged
fraud. Specifically, relator does not allege the time, place, or content of the false
representation; the fact represented; the identification of the individual making the false
representation; or the nature of what was obtained or given as a consequence of the
fraud.
4 {¶15} Thus, relator does not meet the first element of a writ of mandamus, i.e.,
that he has a clear legal right to a writ ordering that all judgments and the writ of
possession entered in his foreclosure action be vacated, because he does not allege he
has such right and the petition does not properly state a claim for fraud.
{¶16} For the same reasons, relator does not satisfy the second element of a
writ of mandamus, i.e., that respondent has a clear legal duty to issue the writ relator
seeks. Specifically, relator does not allege in his petition that respondent has such duty
and the petition does not properly state a claim for fraud.
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[Cite as State ex rel. Vance v. Kontos, 2014-Ohio-5080.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE ex rel., DAVID VANCE, : PER CURIAM OPINION
Petitioner, : CASE NO. 2014-T-0078 - vs - :
HON. PETER J. KONTOS, JUDGE, :
Respondent. :
Original Action for Writ of Mandamus.
Judgment: Petition dismissed.
Harry J. DePietro, The DePietro Law Office, L.L.C., 7 West Liberty Street, Girard, OH 44420 (For Petitioner).
Dennis Watkins, Trumbull County Prosecutor, and William J. Danso, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W, Warren, OH 44481-1092 (For Respondent).
PER CURIAM.
{¶1} This action in mandamus is presently before this court for consideration of
the motion to dismiss filed by respondent, Judge Peter J. Kontos of the Trumbull County
Court of Common Pleas. Respondent argues that the petition filed by relator, David
Vance, fails to state a claim on which relief can be granted because the petition fails to
satisfy any of the necessary elements for the issuance of a writ of mandamus. For the
following reasons, we hold that that the dismissal of this action is warranted. {¶2} Relator alleges in his petition that he was named as a defendant in a
foreclosure action, Case No. 2012 CV 564, filed in the Trumbull County Court of
Common Pleas by Bank of America, N.A. (“BAC”), which is on respondent’s docket.
{¶3} Relator alleges that BAC recently settled a case filed by the Federal
Securities and Exchange Commission and a civil action filed by the United States
Department of Justice in unspecified cases filed in unspecified courts wherein, relator
alleges, BAC admitted defrauding investors by selling them securities that were
“backed” by mortgages, which were “predicated on fraudulent practices.”
{¶4} Relator alleges that, although he was the victim of such fraudulent
practices when he bought his home, BAC pursued said foreclosure action against him.
{¶5} Relator alleges that the fraud was reported in “news coverage” in August
2014, but that the parties in the foregoing federal cases have said little about said
settlements or admissions and that relator is thus unable to produce any evidence at
this time demonstrating BAC’s alleged admission of fraud.
{¶6} Relator alleges that respondent entered a foreclosure decree in favor of
BAC in said foreclosure case and that a writ of possession has issued.
{¶7} Based on BAC’s alleged fraud, relator seeks a writ of mandamus to
compel respondent to vacate all judgments and the writ of possession entered in the
foreclosure action and to dismiss said action.
{¶8} In general, “[a] motion to dismiss for failure to state a claim upon which
relief can be granted is procedural and tests the sufficiency of the complaint.” State ex
rel. Hanson v. Guernsey Cty. Bd. Of Commrs., 65 Ohio St.3d 545, 548 (1992). In
considering the propriety of the dismissal, “we accept all factual allegations in the
2 complaint as true and draw all reasonable inferences in the non-moving party’s favor.”
Transky v. Ohio Civil Rights Comm’n., 193 Ohio App.3d 354, 2011-Ohio-1865, ¶11
(11th Dist.). If, after considering the complaint accordingly, there is no set of facts
consistent with the complaint that would permit recovery, the motion will be granted. Id.
{¶9} A writ of mandamus is defined as “a writ, issued in the name of the state
to an inferior tribunal, * * * commanding the performance of an act which the law
specially enjoins as a duty resulting from an office * * *.” R.C. 2731.01. “[A] writ of
mandamus is generally employed as a means of requiring a public official to complete
an act which he is legally obligated to perform.” State ex rel. Dehler v. Kelly, 11th Dist.
Trumbull No. 2008-T-0062, 2009-Ohio-2534, ¶10. To be entitled to a writ of
mandamus, the relator must be able to prove that: (1) he has a clear legal right to have
a specific act performed by a public official; (2) the public official has a clear legal duty
to perform that act; and (3) there is no legal remedy that could be pursued to adequately
resolve the matter. State ex rel. Appenzeller v. Mitrovich, 11th Dist. Lake No. 2007-L-
125, 2007-Ohio-6157, ¶5.
{¶10} Based on our review of the petition, there is no set of facts consistent with
that pleading that would entitle relator to a writ of mandamus.
{¶11} With respect to the first element of a writ of mandamus, relator does not
allege he has a clear legal right to the writ of mandamus he seeks.
{¶12} Further, relator does not meet this first element because he does not
properly allege a claim for fraud against BAC. The elements of a cause of action for
fraud are as follows: (1) a representation; (2) which is material to the transaction; (3)
made falsely, with knowledge of its falsity, or with such recklessness as to its truth or
3 falsity that knowledge may be inferred; (4) with the intent to mislead another into relying
on it; (5) justifiable reliance on the representation; and (6) an injury proximately caused
by the reliance. Burr v. Bd. of Cty. Commrs. Stark Cty., 23 Ohio St.3d 69 (1986),
paragraph two of the syllabus. Therefore, to avoid dismissal, the complaint must set
forth expressly or by inference the necessary elements of fraud. Zuber v. Dept. of Ins.,
34 Ohio App.3d 42, 45 (10th Dist.1986). Here, relator does not allege expressly or by
implication any of the required elements of fraud.
{¶13} Further, Civ.R. 9(B) provides that when a claim is asserted that is based
on fraud, the circumstances constituting fraud must be stated with particularity. In order
to meet this obligation, the claim must include “‘[t]he “circumstances constituting fraud”
includ[ing] the time, place and content of the false representation; the fact represented;
the identification of the individual giving the false representation; and the nature of what
was obtained or given as a consequence of the fraud.’” Brown v. Sasak, 11th Dist.
Ashtabula No. 2009-A-0054, 2010-Ohio-2676, ¶16, quoting Aluminum Line Products
Co. v. Brad Smith Roofing Co., Inc., 109 Ohio App.3d 246, 259 (8th Dist.1996).
{¶14} Here, relator makes vague allegations that BAC engaged in fraud in
selling securities to investors where the mortgages “backing” said securities were based
on fraudulent banking practices and that he was the victim of such fraudulent practices.
However, the petition does not allege any of the circumstances constituting the alleged
fraud. Specifically, relator does not allege the time, place, or content of the false
representation; the fact represented; the identification of the individual making the false
representation; or the nature of what was obtained or given as a consequence of the
fraud.
4 {¶15} Thus, relator does not meet the first element of a writ of mandamus, i.e.,
that he has a clear legal right to a writ ordering that all judgments and the writ of
possession entered in his foreclosure action be vacated, because he does not allege he
has such right and the petition does not properly state a claim for fraud.
{¶16} For the same reasons, relator does not satisfy the second element of a
writ of mandamus, i.e., that respondent has a clear legal duty to issue the writ relator
seeks. Specifically, relator does not allege in his petition that respondent has such duty
and the petition does not properly state a claim for fraud. Moreover, relator does not
reference any case law holding or even suggesting that in the circumstances presented
here, respondent has a clear legal duty to issue a writ of mandamus.
{¶17} Next, relator does not fulfill the third element of a mandamus action
because he does not allege there is no adequate remedy at law. In fact, he has already
taken advantage of two legal remedies available to him by filing in the trial court a
motion for relief from judgment and a motion to stay execution on the writ of possession.
In his petition, relator alleges that he learned about the alleged fraud in August 2014.
Since he filed his motion for relief from judgment and his motion to stay execution of the
writ of possession in September 2014, it can fairly be presumed that he raised the issue
concerning BAC’s alleged fraud in support of these motions.
{¶18} Pursuant to the foregoing analysis, this court concludes that, even when
the factual allegations in relator's petition are construed in a manner most favorable to
him, he will not be able to establish a set of facts under which he could satisfy any of the
three essential elements for issuance of a writ of mandamus. Accordingly, the dismissal
of this action is warranted under Civ.R. 12(B)(6).
5 {¶19} Respondent's motion to dismiss the instant matter is granted. It is the
order of this court that relator’s mandamus petition is hereby dismissed.
DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., concur.