IN THE SUPREME COURT OF OHIO OVP k4e JERRY L. HARPER CASE NO. 13-0705 Relator V. JUDGE JAMES M. BURGE, et al. MOTION TO DISMISS ORIGINAL ACTION IN MANDAMUS Respondent Now comes the Respondent, the Honorable James M. Burge, Judge of the Lorain County, Ohio Court of Common Pleas, by and through his statutory legal representative, the Prosecuting Attorney of Lorain County, Ohio, and pursuant to Civil Rule 12(B)(6) of the Ohio Rules of Civil Procedure moves this Honorable Court to dismiss the Original Action in Mandamus because the Complaint fails to state a claim upon which relief may be granted. The grounds for the Motion to Dismiss are set forth in the Brief which is attached hereto and is incorporated herein by reference. Respectfully submitted, DENNIS P. WILL, #0038129 Prosecuting Attorney Lorain County, O ' RECEDV MAY 2 8 2013 CLERK OF COURT SUPREME COURT OF C MAY28 2013 CLERK OF COURT SUPREME COURT OF OHIO Attorney for Respondent, Judge James M. Burge 225 Court Street, 3rd Floor Elyria, Ohio 44035 Phone:(440) 329-5389 Fax: (440) 329-5430 Chris.Pyanowski@LCProsecutor.Org
BRIEF IN SUPPORT Introduction The underlying matter involved a foreclosure proceeding involving the Relator's house which was brought by the bank holding the mortgage. Relator was represented by counsel and, after multiple filings by both parties, the trial court granted the bank's motion for summary judgment and granted a judgment for foreclosure. The Relator did not appeal the trial court's decision granting the bank summary judgment. Now pro se, the Relator's filed a motion to vacate that judgment and a motion to dismiss, which were denied. The Relator then filed with the trial court a mandatory judicial notice of void judgment for violation claiming that the magistrate involved in the proceedings was biased and the trial court did not give the Relator a sufficient opportunity to be heard because of that bias. The Relator followed that motion to the trial court with this petition for a writ of mandamus. Legal Analysis Dismissal of the Relator's petition for a writ of mandamus is warranted because it is procedurally defective. R.C. 2731.04 requires that an application for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying, and verified by affidavit. A writ will be denied where the action in mandamus is not instituted in conformity with the provision of R.C. 2731.04. Maloney v. Court of Common Pleas, 173 Ohio St. 226, 19 Ohio Op. 2d 45, 181 N.E.2d 270 (1962). Relator filed his petition in his own name and failed to follow the requirements of R.C. 2731.04 by failing to file his petition in the name of the state on the relation to himsel Therefore, his request for a writ of mandamus should be denied due to this fatal flaw. 2
R.C. 2731.05 establishes that a writ of mandamus must not be issued when there is plain and adequate remedy in the ordinary course of the law. An appeal of the trial court's decision is considered a plain and adequate remedy and where Relator has waived his right to appeal, mandamus cannot be used as a substitute. State ex rel. Hofstetter v. Kronk, 20 Ohio St. 2d 117, 49 Ohio Op. 2d 440, 254 N.E.2d 15 (1969). Relator complains of the trial court's failure to implement the Mandatory Judicial Notice he filed on October 5, 2012 but based on the content of his petition for a writ of mandamus he is really attempting to challenge the trial court's granting of summary judgment and the issuance of a judgment for foreclosure on April 24, 2012. Relator specifically complains in his petition to this Court that summary judgment was not appropriate because he believes that genuine issues of material fact existed and that he was not given the opportunity to be heard because of the trial court's bias and abuse of discretion. The Relator has indicated challenges to the trial court's granting of summary judgment that should have been made through an appeal and cannot be addressed here through mandamus. An action in mandamus cannot be maintained to constitute a collateral attack upon a judgment of the common pleas court which is subject to review upon appeal. State ex rel. Holland v. Struble, 132 Ohio St. 431, 8 Ohio Op. 281, 8 N.E.2d 254 (1937). When read, it is clear that both the Mandatory Judicial Notice of Void Judgment and this action in Mandamus are nothing more than the Relator's attempt to attack the trial court's granting of summary judgment to the opposition; an issue that should have been addressed on appeal. Although also an issue that should have been addressed on appeal, Relator further contends that the trial court magistrate was biased against him due to prior attorney-client 3
relationship and it was this bias that led to the result of the underlying case and the Relator's filing of the Mandatory Judicial Notice. However, the Relator fails to identify that the magistrate informed the Relator and his counsel of the past relationship and, even though the magistrate did not feel a conflict existed, offered to recuse himself. Both the Relator and his counsel discussed the situation and they decided to not object to the magistrate's continued involvement with the case. (Transcript for March 14, 2012 proceedings, Lines 11-22). It was not until the court provided the Relator with an unfavorable result that he had a problem with this particular magistrate handling the proceedings. CONCLUSION For the foregoing reasons, the Original Action in Mandamus fails to state a claim upon which relief can be granted, and pursuant to Rule 12(B)(6) of the Ohio Rules of Civil Procedure, should be dismissed. Therefore, this Honorable Court should dismiss the Relator's Original Action in Mandamus, with prejudice, and refuse to issue any alternative writ. Respectfully submitted, DENNIS P. WILL, #0038129 Prosecuting Attorney Lorain County, Ohio Attorney for Respondent, Judge James M. Burge 225 Court Street, 3`d Floor Elyria, Ohio 44035 Phone:(440) 329-5389 Fax: (440) 329-5430 Chris.Pyanowski@LCProsecutor.Org 4
PROOF OF SERVICE This is to certify that a copy of the foregoing Motion to Dismiss, was served upon Jerry L. Harper, 307 East Main Str., S. Amherst, Ohio 44001 by regular U.S. Mail this day of May, 2013. ^.^...,^^ t -^ ^^^.. 5