State ex rel. Litwinowicz v. Euclid ( 2014 )

[Cite as State ex rel. Litwinowicz v. Euclid, 2014-Ohio-2986.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101008
STATE EX REL.
CHRISTOPHER MICHAEL LITWINOWICZ
RELATOR
vs.
CITY OF EUCLID
RESPONDENT
JUDGMENT:
WRIT DISMISSED
Writ of Mandamus
Motion No. 472918
Order No. 475044
RELEASE DATE: July 1, 2014
FOR RELATOR
Christopher Michael Litwinowicz, pro se
21970 Morris Avenue
Euclid, Ohio 44123
ATTORNEY FOR RESPONDENT
Christopher L. Frey
Euclid Department of Law
585 East 222nd Street
Euclid, Ohio 44123
KENNETH A. ROCCO, J.:
{¶1} Christopher Michael Litwinowicz (“Litwinowicz”) filed a pleading styled
“writ of mandamus” against the city of Euclid. 1 Litwinowicz’s pleading contains a
complaint that the city of Euclid violated the law “by veto” regarding a “48 part initivitive
[sic] petition” that Litwinowicz allegedly filed on
February 15, 2013 with the “City Auditor of the City of Euclid.” He appears to be seeking
a writ of mandamus ordering the city of Euclid to file or transmit “all 48 part inititive
[sic] petition’s to the Cuyahoga County Board of Elections.” The City of Euclid has filed
a motion to dismiss. Litwinowicz filed a motion objecting to dismissal and, on the same
day, filed an affidavit containing averments that are identical to the statements in his
motion objecting to the motion to dismiss. Litwinowicz has also filed a “motion for
default judgment/writ of mandamus order.” For the following reasons, the City’s motion
to dismiss is granted.
{¶2} The pleading has multiple defects. First, it is improperly captioned.
Litwinowicz styled this filing as “Christopher Michael Litwinowicz v. City of Euclid.”
R.C. 2731.04 requires that an application for a writ of mandamus “must be by petition, in
the name of the state on the relation of the person applying.” The failure to properly
caption a mandamus action is sufficient grounds for denying the writ and dismissing the
The body of the pleading indicates it was filed “pro se * * *, through legal
1
counsel.” A review of the pleadings indicates that Litwinowicz is acting pro se and
that no attorney has entered an appearance on his behalf in this action.
petition. Maloney v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226, 181
N.E.2d 270 (1962); Persinger v. State, 8th Dist. Cuyahoga No. 89149, 2007-Ohio-67, ¶ 2.
{¶3} Additionally, Litwinowicz failed to support his complaint with an affidavit
“specifying the details of the claim” as required by Loc.R. 45(B)(1)(a). The failure to
comply with the supporting affidavit provision of Loc.App.R. 45(B)(1)(a) further requires
dismissal of the action. State ex rel Leon v. Cuyahoga Cty. Court of Common Pleas, 8th
Dist. Cuyahoga No. 92826, 2009-Ohio-1612, aff’d, 123 Ohio St.3d 124, 2009-Ohio-4688,
914 N.E.2d 402.
{¶4} In addition to being procedurally defective, the City argues that the complaint
failed to meet the requirements for mandamus.
{¶5} The requisites for mandamus are well established: (1) the relator must have a
clear legal right to the requested relief, (2) the respondent must have a clear legal duty to
perform the requested relief and (3) there must be no adequate remedy at law. State ex rel.
Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987). A writ of mandamus should
not be issued in doubtful cases. State ex rel. Goldsberry v. Weir, 60 Ohio App.2d 149,
395 N.E.2d 901 (10th Dist.1978).
{¶6} The City primarily argues that Litwinowicz has or had an adequate remedy at
law through an appeal.
{¶7} Litwinowicz filed a complaint against the City of Euclid in the Cuyahoga
County Court of Common Pleas, case number CV-13-802979 and appealed the trial
court’s order in that case, which granted the City’s motion for summary judgment on his
claims. Litwinowicz v. Euclid, 8th Dist. Cuyahoga No. 100644 (Feb. 21, 2014). The City
asserts that “the subject matter of the direct appeal in CA-13-100644 is identical to the
issue raised in the complaint for writ of mandamus.” Litwinowicz has not addressed or
disputed the City’s argument that the appeal provided him with an adequate remedy at
law and, as such, precludes the issuance of a writ. “An adequate remedy by appeal
precludes the writ of mandamus. The opportunity to exercise an adequate remedy, even if
it is not properly exercised, also precludes mandamus.” State ex rel. Nash v. Fuerst, 8th
Dist. Cuyahoga No. 99027, 2013-Ohio-592, ¶ 10. Because Litwinowicz did not dispute
that the appeal provided him with an adequate remedy at law, at least one of the requisites
for mandamus has not been satisfied. In addition, it is questionable whether Litwinowicz
even sufficiently articulated or established a clear legal right or a clear legal duty
enforceable in mandamus. The complaint fails to state a claim upon which relief could be
granted. Civ.R. 12(B)(6).
{¶8} For all of these reasons, the motion to dismiss is granted and the complaint
for a writ of mandamus is dismissed. Relator to pay costs. This court
directs the clerk of court to serve all parties notice of this judgment and its date
of entry upon the journal as required by Civ.R. 58(B).
______________________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, A.J., and
EILEEN T. GALLAGHER, J., CONCUR