State ex rel. Washington v. D'Apolito

[Cite as State ex rel. Washington v. D’Apolito, 2019-Ohio-5247.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO, ex rel. WAYMAN E. WASHINGTON,
Relator,
v.
JUDGE LOU A. D’APOLITO, COMMON PLEAS COURT JUDGE,
Respondent.
OPINION AND JUDGMENT ENTRY
Case No. 17 MA 0176
Writ of Mandamus
BEFORE:
Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Dismissed.
Wayman E. Washington, Pro se, Inmate No. 632-492, Richland Correctional Institution,
P.O. Box 8107, Mansfield, Ohio 44901-8107, and 6324 Klines Drive, Girard, Ohio
44420, for Relator.
Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant
Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
for Respondent.
Dated: December 12, 2019
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PER CURIAM.
{¶1} Relator Wayman E. Washington, proceeding on his own behalf, filed a
petition for a writ of mandamus on December 13, 2017, seeking to have this Court direct
Respondent Mahoning County Common Pleas Court Judge R. Scott Krichbaum to vacate
a decree of foreclosure for lack of personal jurisdiction, arguing he was never served with
the foreclosure complaint. Respondent filed a combined answer and motion to dismiss.
On February 5, 2018, Relator filed an amended complaint changing the named
respondent from Judge Krichbaum to Judge Lou A. D’Apolito, because it was Judge
D’Apolito’s predecessor in office who had entered the foreclosure decree. This Court
dismissed Relator’s original complaint on the basis that he had an adequate remedy at
law by way of direct appeal, implicitly dismissing Relator’s amended complaint on the
same basis. State ex rel. Washington v. Krichbaum, 7th Dist. Mahoning No. 17 MA 0176,
2018-Ohio-626.
{¶2} Relator appealed to the Ohio Supreme Court. In a split decision, the Court
reversed our determination, holding “the availability of a direct appeal is not an adequate
remedy when there was a jurisdictional defect.” State ex rel. Washington v. D’Apolito,
156 Ohio St.3d 77, 2018-Ohio-5135, 123 N.E.3d 947, ¶ 8. The Court acknowledged that
an entry on a copy of the docket attached to Relator’s complaint might reflect that proper
service was achieved prior to the default judgment, but it also indicates that a number of
other attempts to serve him by certified mail and personally were unsuccessful. Id. at
¶ 10. While the Court acknowledged the evidentiary value of the docket entries, it found
their evidentiary value was diminished because the docket also contained entries
Case No. 17 MA 0176
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indicating unsuccessful attempts at service. Id. at ¶ 11. The Court concluded that this
evidence was insufficient to allow dismissal of the mandamus complaint because it would
prematurely require us to weigh the evidence and make an inference against Relator. Id.
{¶3} The Court remanded the case back to us for further proceedings. As an
initial matter, we note that we are proceeding on Relator’s timely filed amended complaint,
which substituted Judge Lou A. D’Apolito for Judge R. Scott Krichbaum as Respondent.
Id. at ¶ 15. The underlying foreclosure case was presided over entirely by Judge Timothy
E. Franken and he was the judge who entered the foreclosure decree. Judge Lou A.
D’Apolito succeeded Judge Franken on December 1, 2008. Since the case had been
closed, Judge D’Apolito never had a reason or an occasion to preside over any
proceedings relating to the foreclosure case. However, because Judge D’Apolito held
the seat formerly held by Judge Franken when Relator filed this mandamus action, he
sought to have Judge D’Apolito substituted as the appropriate party-respondent. We also
note that regardless of which name of one of the five judges who sit on the Mahoning
County Common Pleas Court, General Division, appears in the caption of this case as
respondent, the prosecuting attorney remains statutory counsel for the Respondent. R.C.
309.09(A); State ex rel. Gains v. Maloney, 102 Ohio St.3d 254, 2004-Ohio-2658, 809
N.E.2d 24, ¶ 12.
{¶4} This Court filed a judgment entry granting the parties forty-eight (48) days
to file motions for summary judgment and responsive motions, and set the matter for a
non-oral hearing. Respondent has timely filed a Civ.R. 56 motion for summary judgment.
Relator has not filed any response, nor has he filed any other pleadings in this matter on
remand.
Case No. 17 MA 0176
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{¶5} Turning to the facts in this matter, in 2007, Relator and his wife were named
as defendants in a Mahoning County Common Pleas Court foreclosure suit. Deutsche
Bank Natl. Trust Co. v Washington, Mahoning C.P. No. 2007 CV 03029. The case
resulted in a default judgment and decree of foreclosure against the Washingtons. No
appeals were taken.
{¶6} Over nine years after the property was sold at sheriff’s sale, Relator filed in
this Court a complaint for a writ of mandamus on December of 2017, seeking to compel
Respondent to vacate the judgment entry against him in his foreclosure case on the
grounds that “personal jurisdiction was never obtained against the Relator” because
“Relator * * * was never properly served a copy of the complaint [nor] did the relator
appear in the case.” (12/13/17 Writ of Mandamus, p. 1.) In support, Relator attached a
copy of the docket from the foreclosure action, which revealed two instances of successful
service on Relator, along with some unsuccessful attempts.
{¶7} In order to be entitled to summary judgment, the moving party must
demonstrate that (1) no genuine issue of material fact exists, (2) the movant is entitled to
judgment as a matter of law, and (3) even construing the evidence most strongly in favor
of the nonmovant, reasonable minds could come to but one conclusion, and that
conclusion is adverse to the nonmoving party. State ex rel. Cochran v. Boardman Twp.
Bd. of Trustees, 196 Ohio App.3d 185, 2011-Ohio-4255, 962 N.E.2d 852, ¶ 7 (7th Dist.),
quoting State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183, 677
N.E.2d 343 (1997). Further, the nonmoving party may not merely rest on its allegations:
a properly supported motion for summary judgment forces the nonmoving party to
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produce evidence on any issue for which it bears the burden of proof. Dresher v. Burt,
75 Ohio St.3d 280, 293-294, 662 N.E.2d 264 (1996).
{¶8} In regard to a writ of mandamus, a relator seeking a writ of mandamus bears
the burden of establishing a clear legal right to the relief requested, a clear legal duty on
the part of the respondent to provide the relief, and that the relator lacks an adequate
remedy in the ordinary course of the law. State ex rel. Bradford v. Dinkelacker, 146 Ohio
St.3d 219, 2016-Ohio-2916, 54 N.E.3d 1216, ¶ 5. An adequate remedy at law is defined
as one that is “complete, beneficial, and speedy.” State ex rel. Kerns v. Simmers, 153
Ohio St.3d 103, 2018-Ohio-256, 101 N.E.3d 430, ¶ 10. Further, “[i]f any of these elements
is not shown, the petition must be denied.” State ex rel. Felson v. McHenry, 146 Ohio
App.3d 542, 545, 767 N.E.2d 298 (1st Dist.2001).
{¶9} Our inquiry begins with whether there is a genuine issue of material fact
regarding whether service of the 2007 foreclosure complaint was validly obtained on
Relator. “[S]ervice of the summons and complaint required to initiate a lawsuit must
satisfy ‘[a]n elementary and fundamental requirement of due process,’ which is, ‘notice
reasonably calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.’ ”
Spotsylvania Mall Co. v. Nobahar, 7th Dist. Mahoning No. 11 MA 82, 2013-Ohio-1280,
¶ 17, citing Samson Sales, Inc. v. Honeywell, Inc., 66 Ohio St.2d 290, 293, 421 N.E.2d
522 (1981); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct.
652, 94 L.Ed. 865 (1950). “[U]nless service has been properly made or the party has
otherwise waived service by appearing in the lawsuit, no judgment may be entered
against him.” Spotsylvania at ¶ 20. Lastly, “there is a presumption of proper service when
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the civil rules governing service are followed, but this presumption is rebuttable by
sufficient evidence.” Graham Dealerships, CI v. Chavero, 5th Dist. Richland No. 2007-
CA-0098, 2008-Ohio-2966, ¶ 7.
{¶10} In a decision from the Twelfth District Court of Appeals cited by Respondent,
the Court addressed service in the context of a foreclosure case. In Bank of New York
Mellon v Maxfield, 12th Dist. Butler No. CA2016-01-004, 2016-Ohio-2990, the
defendants-appellants asserted that they were not properly served in the foreclosure case
regarding their real property. To support this contention, they submitted affidavits stating
that at the time service was made, they were out-of-state. Id. at ¶ 4. Plaintiff-appellee
bank, however, asserted that proper service had been made, and provided
documentation from the process server who had personally served the appellants. Id. at
¶ 5.
{¶11} The Court held that the appellants’ affidavits were not sufficient to rebut the
presumption of proper service, stating:
The [appellants’] averments are unsupported with further corroborating
evidence, such as a lease, utility bill, or receipts to show any indication that
[they] were staying in Tennessee at the time of service * * *.
Moreover, at no time did [appellants] claim that the West Church Street
address was not a valid address for them, nor did they claim that the West
Church Street address was not their usual place of residence or that they
did not reside together. * * * The affidavits merely offered the unsupported
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statement that neither was in Ohio at the time service was purported to
occur.
Id. at ¶ 16-17.
{¶12} In short, in order to rebut the presumption of proper service, one needs to
do more than simply state that service did not occur; evidence is required. Without this
evidence, the presumption that service was proper controls.
{¶13} Here, although Relator claims that he was not served, he has not provided
any evidence to support this contention beyond his references to the uncertified copy of
the docket he attached to both his original and amended complaint. Again, this document
does contain some entries showing some attempts at service were unsuccessful. Again,
Relator has not filed any further pleadings in this matter on remand.
{¶14} Conversely, a certified copy of the docket of the foreclosure case attached
to Respondent’s summary judgment motion as Exhibit No. 2, contains an entry clearly
reflecting proper service was obtained. Respondent also attached to his summary
judgment motion Exhibit No. 2, a certified copy of the return of personal service made
upon Relator by Process Server Richard S. Fabian of Provest LLC, on August 31, 2007
at 4:00 p.m. and filed-stamped by the clerk of courts on September 11, 2007. This
evidence demonstrates successful completion of personal service pursuant to Civ.R.
4.1(B). Because Relator has failed to provide any further evidence to the contrary in
summary judgment, he has not overcome the presumption that proper service was
obtained in the foreclosure action.
{¶15} Our only remaining inquiry is whether Relator had any other adequate
remedy at law. It is well established that “[m]andamus cannot be used as a substitute for
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appeal.” State ex rel. Richfield v. Laria, 138 Ohio St.3d 168, 2014-Ohio-243, 4 N.E.3d
1040, ¶ 11. Mandamus also “does not lie to correct errors and procedural irregularities
in the course of a case. If the relator has or had an adequate remedy, relief in mandamus
is precluded — regardless of whether the relator used the remedy.” State ex rel. Davet
v. Sutula, 8th Dist. Cuyahoga No. 96548, 2011-Ohio-2803, at ¶ 10.
{¶16} Relator had two adequate remedies at law available to him: a direct appeal
and a Civ.R. 60(B) motion for relief from judgment.
{¶17} For all the foregoing reasons and construing the evidence most favorably
for Relator, reasonable minds can only conclude that Relator has failed to establish
improper service of the foreclosure complaint or that he lacked other adequate remedies
at law. No genuine issue of any material fact exists in this matter and Respondent is
entitled to judgment as a matter of law. Accordingly, Respondent’s motion for summary
judgment is granted and Relator’s amended complaint for a writ of mandamus is
dismissed. Costs taxed against Relator. Final order. Clerk to serve copies of this
decision and judgment entry pursuant to the civil rules.
JUDGE CHERYL L. WAITE
JUDGE GENE DONOFRIO
JUDGE CAROL ANN ROBB
Case No. 17 MA 0176