[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, C OMMON PLEAS COURT JUDGE, Respondent.

OPINION AND JUDGMENT ENTRY Case No. 17 MA 0176

Writ of Mandamus BEFORE: Cher y l L. Waite, Gene Donofrio, Carol Ann Robb, Jud g es.

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 Dri ve, 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, Young stown, Ohio 44503, fo r Respondent. Dated: December 12, 2019– 2 –

Case No. 17 MA 0176

PER CURIAM. {¶1} Relator Wayman E. Washington, proceeding on his own behalf, fil ed a petition for a writ of mandamus on December 13, 2017, seeking t o have this Court direct Respondent Mahoning County Common Pleas Court Judge R. Scott Kr ichbaum to vacate a decree of foreclosure for lack of personal jurisdiction, argu ing 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 changin g the named respondent from Judge Krichbaum to Judge Lou A. D’Apolito, beca use it was Judge D’Apolito’s predecessor in office who had entered the foreclosu re 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 am ended 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 decisio n, the Court reversed our determination, holding “the availability of a dire ct 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 Co urt acknowledged that an entry on a copy of the docket attached to Relator’s complain t 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 we re unsuccessful. Id . at ¶ 10. While the Court acknowledged the evidentiary value of th e docket entries, it found their evidentiary value was diminished because the docket also contained entries– 3 –

Case No. 17 MA 0176 indicating unsuccessful attempts at service. Id . at ¶ 11. The Court concluded that this evidence was insufficient to allow dismissal of the mandamus co mplaint because it would prematurely require us to weigh the evidence and make an infere nce 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 tim ely filed amended complaint, which substituted Judge Lou A. D’Apolito for Judge R. Scott Kri chbaum as Respondent. Id . at ¶ 15. The underlying foreclosure case was presided over e ntirely by Judge Timothy E. Franken and he was the judge who entered the foreclosure dec ree. Judge Lou A. D’Apolito succeeded Judge Franken on December 1, 2008. Since t he case had been closed, Judge D’Apolito never had a reason or an occasion to pr eside 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 p arty-respondent. We also note that regardless of which name of one of the five judges wh o sit on the Mahoning County Common Pleas Court, General Division, appears in the cap tion 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-ei ght (48) days to file motions for summary judgment and responsive motions, an d set the matter for a non-oral hearing. Respondent has timely filed a Civ.R. 56 moti on for summary judgment. Relator has not filed any response, nor has he filed any other pleadings in this matter on remand.– 4 –

Case No. 17 MA 0176 {¶5} Turning to the facts in this matter, in 2007, Relator and his w ife were named as defendants in a Mahoning County Common Pleas Court foreclosu re 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 agains t 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 20 17, seeking to compel Respondent to vacate the judgment entry against him in his fore closure case on the grounds that “personal jurisdiction was never obtained against the Relator” because “Relator * * * was never properly served a copy of the complain t [nor] did the relator appear in the case.” (12/13/17 Writ of Mandamus, p. 1.) In su pport, 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 m ust 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 eviden ce most strongly in favor of the nonmovant, reasonable minds could come to but one conclu sion, 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 non moving party to– 5 –

Case No. 17 MA 0176 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 ma ndamus bears the burden of establishing a clear legal right to the relief re quested, 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 re medy 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 mat erial fact regarding whether service of the 2007 foreclosure complaint was validly obtained on Relator. “[S]ervice of the summons and complaint required to i nitiate a lawsuit must satisfy ‘[a]n elementary and fundamental requirement of due pro cess,’ 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 presen t 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 judgme nt may be entered against him.” Spotsylvania at ¶ 20. Lastly, “there is a presumption of proper service wh en– 6 –

Case No. 17 MA 0176 the civil rules governing service are followed, but this presum ption 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 cas e. 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 serv ed in the foreclosure case regarding their real property. To support this contention, the y 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 suffici ent to rebut the presumption of proper service, stating:

The [appellants’] averments are unsupported with further corrob orating evidence, such as a lease, utility bill, or receipts to show an y indication that [they] were staying in Tennessee at the time of service * * *.

Moreover, at no time did [appellants] claim that the West Churc h Street address was not a valid address for them, nor did they claim th at 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– 7 –

Case No. 17 MA 0176 statement that neither was in Ohio at the time service was purp orted 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 no t provided any evidence to support this contention beyond his references t o the uncertified copy of the docket he attached to both his original and amended complai nt. 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 r emand. {¶14} Conversely, a certified copy of the docket of the foreclosure c ase attached to Respondent’s summary judgment motion as Exhibit No. 2, conta ins an entry clearly reflecting proper service was obtained. Respondent also attach ed to his summary judgment motion Exhibit No. 2, a certified copy of the return o f 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 Septem ber 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 evid ence to the contrary in summary judgment, he has not overcome the presumption that prop er service was obtained in the foreclosure action. {¶15} Our only remaining inquiry is whether Relator had any other ade quate remedy at law. It is well established that “[m]andamus cannot be used as a substitute for– 8 –

Case No. 17 MA 0176 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 remed y.” 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 d irect 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 ha s 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 m atter and Respondent is entitled to judgment as a matter of law. Accordingly, Responde nt’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 t o serve copies of this decision and judgment entry pursuant to the civil rules.

JUDGE CHERYL L. WAITE

JUDGE GENE DONOFRIO

JUDGE CAROL ANN ROBB