State ex rel. Washington v. D'Apolito (Slip Opinion)

2018 Ohio 5135, 123 N.E.3d 947, 156 Ohio St. 3d 77
CourtOhio Supreme Court
DecidedDecember 21, 2018
Docket2018-0326
StatusPublished
Cited by21 cases

This text of 2018 Ohio 5135 (State ex rel. Washington v. D'Apolito (Slip Opinion)) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Washington v. D'Apolito (Slip Opinion), 2018 Ohio 5135, 123 N.E.3d 947, 156 Ohio St. 3d 77 (Ohio 2018).

Opinions

O'Connor, C.J.

*78{¶ 1} Appellant, Wayman E. Washington, appeals the judgment of the Seventh District Court of Appeals dismissing his complaint for a writ of mandamus against Mahoning County Common Pleas Court Judge Lou A. D'Apolito. For the reasons set forth below, we reverse the judgment of the court of appeals and remand the matter for further proceedings.

Background

{¶ 2} On August 17, 2007, Washington was named as a defendant in a foreclosure suit filed in Mahoning County Common Pleas Court. Deutsche Bank Natl. Trust Co. v. Washington , Mahoning C.P. No. 2007 CV 03029. The case was assigned to Judge Timothy E. Franken and resulted in a default judgment and decree of foreclosure against Washington.

{¶ 3} On December 13, 2017, Washington filed a complaint for a writ of mandamus in the Seventh District Court of Appeals, seeking to vacate the foreclosure judgment. Washington alleged that the trial court had lacked jurisdiction to issue the judgment because he had not been served with a copy of the complaint and had never appeared in the case. The complaint named Mahoning County Common Pleas Court Judge R. Scott Krichbaum as the respondent, alleging that he had presided over case No. 2007 CV 03029 and had signed the foreclosure order.

{¶ 4} On January 4, 2018, Judge Krichbaum filed an answer denying all allegations in the complaint combined with a motion to dismiss. As affirmative defenses, Judge Krichbaum argued that even assuming Washington's allegations regarding service of process were true, Washington did not plead facts that constitute an action against Judge Krichbaum because Washington's foreclosure case had been assigned to a different judge and not to him. Judge Krichbaum further asserted that Washington had no right to the extraordinary relief prayed for and also had an adequate remedy by way of direct appeal in the foreclosure case. Consequently, Judge Krichbaum stated, Washington was not entitled to a writ of mandamus.

*950{¶ 5} On February 5, 2018, Washington filed an amended complaint, changing the respondent from Judge Krichbaum to Judge Lou A. D'Apolito.1 Though the *79court of appeals had granted Judge D'Apolito 28 days to file an answer, on February 12, the court dismissed the complaint before an answer was filed, holding that Washington had had an adequate remedy at law by way of a direct appeal from the order of foreclosure and was therefore not entitled to relief in mandamus. State ex rel. Washington v. Krichbaum , 7th Dist. Mahoning No. 17 MA 0176, 2018-Ohio-626, 2018 WL 919982, ¶ 6. A day after the court issued this decision, Judge Krichbaum filed a motion to strike the amended complaint on the grounds that Washington had failed to seek leave of court and that amendment would be futile anyway. The motion was never addressed.

{¶ 6} Washington appealed.

Legal analysis

{¶ 7} We review a dismissal of a petition for a writ of mandamus under Civ.R. 12(B)(6) de novo. State ex rel. McKinney v. Schmenk , 152 Ohio St.3d 70, 2017-Ohio-9183, 92 N.E.3d 871, ¶ 8. In conducting our review, we must presume the truth of all factual allegations in the complaint, draw all reasonable inferences in the nonmoving party's favor, and affirm a lower court's judgment " 'only when there is no set of facts under which the nonmoving party could recover.' " Id. , quoting State ex rel. Ohio Civ. Serv. Emps. Assn. v. State , 146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, ¶ 12. We have recognized that "a claim that a relator possesses an adequate legal remedy precluding a writ of mandamus seeks an adjudication on the merits" and that "a Civ.R. 12(B)(6) dismissal based upon the merits is unusual and should be granted with caution." State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn. , 72 Ohio St.3d 106, 108-109, 647 N.E.2d 799 (1995).

{¶ 8} The court of appeals dismissed the writ action because it determined that Washington had had an available remedy through a direct appeal from the foreclosure order, which he did not exercise. But the availability of a direct appeal is not an adequate remedy when there was a jurisdictional defect. "Mandamus will lie where it is apparent from the record that the inferior court had no jurisdiction, and the writ will lie even though the party aggrieved may also be entitled to appeal." State ex rel. Ballard v. O'Donnell , 50 Ohio St.3d 182, 184, 553 N.E.2d 650 (1990).

{¶ 9} Washington alleged in his amended complaint filed in the court of appeals that he was never served a copy of the 2007 complaint in the foreclosure case and never made an appearance. If that is true, the trial court lacked jurisdiction to enter a default judgment of foreclosure and the availability of a direct appeal is not an adequate remedy that would preclude mandamus relief here. Thus, we must determine whether the court of appeals properly concluded at the motion-to-dismiss stage that Washington could not prove his allegations regarding lack of service.

*80{¶ 10} "Documents attached to or incorporated into the complaint may be considered on a motion to dismiss pursuant to Civ.R. 12(B)(6)." NCS Healthcare, Inc. v. Candlewood Partners, L.L.C. , 160 Ohio App.3d 421, 2005-Ohio-1669,

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Bluebook (online)
2018 Ohio 5135, 123 N.E.3d 947, 156 Ohio St. 3d 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-washington-v-dapolito-slip-opinion-ohio-2018.