[Cite as State ex rel. GMS Mgt., Co., Inc. v. Lazzaro, 2012-Ohio-3961.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97875

STATE EX REL.

GMS MANAGEMENT CO., INC. RELATOR

vs. 

 MAGISTRATE S. ROBERT LAZZARO, JR. 

AND JUDGE MARK COMSTOCK 

 RESPONDENTS

JUDGMENT: 

WRIT DENIED 

Writ of Mandamus 

Motion No. 453848 

Order No. 456575 

RELEASE DATE: August 24, 2012 
ATTORNEY FOR RELATOR 

Paul M. Greenberger 

Berns, Ockner & Greenberger, LLC 

3733 Park East Drive 

Suite 200 

Beachwood, Ohio 44122

ATTORNEY FOR RESPONDENT

James N. Walters, III 

Director of Law for the city of Berea 

11 Berea Commons 

Berea, Ohio 44017-0297 
LARRY A. JONES, SR., J.: 

{¶1} On January 26, 2012, the relator, GMS Management Co., Inc., (“GMS”) 

commenced this mandamus action against the respondents, Magistrate S. Robert Lazzaro 

and Judge Mark Comstock, Jr., of the Berea Municipal Court, to compel them to not 

apply Civ.R. 6(A) to the three-day notices for forcible entry and detainer actions under 

R.C. Chapter 1923.04. On April 3, 2012, GMS moved for summary judgment, and the 

respondents never filed a brief in opposition. Nevertheless, for the following reasons, 

this court denies GMS’s motion for summary judgment and denies the application for a 

writ of mandamus. 

{¶2} In its complaint, GMS avers that it is a landlord that manages 528 residential 

suites within the jurisdiction of the Berea Municipal Court. R.C. Chapter 1923.04(A) 

requires a party desiring to commence a forcible entry and detainer action to notify the 

adverse party to leave the premises three or more days before beginning the action. In 

the underlying case, Berea M.C. No. 11 CVG 02425, GMS served this three-day notice 

on Wednesday, October 5, 2011. On Tuesday, October 11, 2011, GMS commenced the 

eviction action. The tenant moved to dismiss on the grounds that GMS did not fulfill 

the three-day notice requirement. Civ.R. 6(A) provides in pertinent part as follows: 

“When the period of time prescribed or allowed is less than seven days, intermediate 

Saturdays, Sundays, and legal holidays shall be excluded in the computation.” The 

tenant argued that pursuant to Civ.R. 6(A) the intermediate Saturday, Sunday, and 

Columbus Day, Monday October 10, 2011, did not count toward fulfilling the three-day 
notice. Thus, GMS prematurely commenced the eviction on the third day, Tuesday, 

October 11, 2011. The respondents found merit in this argument and dismissed the 

underlying eviction action. GMS did not appeal this ruling, but successfully obtained 

judgment and possession in a second eviction action, Berea M.C. No. 11 CVG 02613, in 

November 2011. 

{¶3} GMS’s position is that the respondents improperly applied the exclusion 

clause of Civ.R. 6(A) to the underlying forcible entry and detainer action. It commenced 

this mandamus action to prevent such a ruling again. 

{¶4} 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). Mandamus is not a 

substitute for appeal. State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176, 631 N.E.2d 

119 (1994); State ex rel. Daggett v. Gessaman, 34 Ohio St.2d 55, 295 N.E.2d 659 (1973); 

and State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 

(1967), paragraph three of the syllabus. Furthermore, if the relator had an adequate 

remedy, regardless of whether it was used, relief in mandamus is precluded. State ex rel. 

Tran v. McGrath, 78 Ohio St.3d 45, 676 N.E.2d 108 (1997); and State ex rel. Boardwalk 

Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty., 56 Ohio St.3d 33, 564 N.E.2d 

86 (1990). Moreover, mandamus is an extraordinary remedy that is to be exercised with 

caution and only when the right is clear. It should not issue in doubtful cases. State ex 

rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer v. 
Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953); and State ex rel. 

Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist. 1993). 

{¶5} Additionally, the court has discretion in issuing the writ. In Pressley, supra,

paragraph seven of the syllabus, the Supreme Court of Ohio ruled that “in considering the 

allowance or denial of the writ of mandamus on the merits, [the court] will exercise 

sound, legal and judicial discretion based upon all the facts and circumstances in the 

individual case and the justice to be done.” The court elaborated that in exercising that 

discretion the court should consider “the exigency which calls for the exercise of such 

discretion, the nature and extent of the wrong or injury which would follow a refusal of 

the writ, and other facts which have a bearing on the particular case.” 11 Ohio St.2d at 

161. State ex rel. Bennett v. Lime, 55 Ohio St.2d 62, 378 N.E.2d 152 (1978). 

{¶6} GMS makes a strong argument that the exclusion clause of Civ.R. 6(A) 

should not be applied to the three-day notice required by R.C. Chapter 1923.04(A). The 

purpose of the forcible entry and detainer act is to provide a summary, extraordinary, and 

speedy remedy for the recovery of possession of real property. Applying Civ.R. 6(A)’s 

exclusion clause frustrates the purpose of the statute by undermining the statute’s 

permission to commence suit after three days. As GMS argues, unless the three-day 

notice were to be served on Monday, it would be impossible to commence the action until 

the next week and the addition of several extra days not contemplated by R.C. Chapter 

1923. Indeed, Civ.R. 1(C)(3) exempts the application of the Civil Rules to forcible entry 

and detainer actions to the extent that they would by their nature be clearly inapplicable. 

 {¶7} Furthermore, Ohio courts have agreed with this position. In Willis v. 
Thibault, 3d Dist. No. 9-87-47, 1989 WL 83816 (July 31, 1989), the landlord served the 

three-day notice on a Saturday and commenced the eviction action on Wednesday. The 

tenant argued that the landlord had prematurely commenced the action, but the trial court 

found for the landlord. On the tenant’s appeal, the court of appeals ruled “that Civ.R. 

6(A) is inapplicable.” It reasoned that, under Civ.R. 1(C)(3), the delay caused by 

Civ.R. 6(A) is inconsistent with the speedy remedy R.C. Chapter 1923 is supposed to 

provide; thus, the rule is clearly inapplicable to eviction actions. Forcible entry and 

detainer is a special remedy that should not be encrusted with time-consuming procedures 

that would destroy its efficacy. 

 {¶8} The Second District followed Willis in Fed. Property Mgt. v. Daugherty, 2d 

Dist. No. 12591, 1991 WL 116640 (June 29, 1991). It ruled that R.C. Chapter 1923 

actions for restitution are summary proceedings and the Civil Rules, especially Civ.R. 

6(A), are clearly inapplicable, as contemplated by Civ.R. 1(C)(3). In Wodzisz v. 

Bayes, 10th Dist. No. 96APE07-891, 1997 WL 142715 (Mar. 25, 1997), the court of 

appeals agreed that Civ.R. 6(A) is not applicable to eviction proceedings. 

{¶9} GMS also relies heavily on State ex rel. GMS Mgt. Co. v. Callahan, 45 Ohio 

St.3d 51, 543 N.E.2d 483 (1989). In that case, GMS on January 21, 1988, filed a 

forcible entry and detainer action against a tenant in Willoughby Municipal Court, which 

held a hearing on February 10, 1988. When the respondent judge had not yet issued a 

ruling by February 26, 1988, GMS commenced the mandamus action in the Supreme 

Court of Ohio to compel the judge to proceed in a timely fashion. On February 29, 

1988, the respondent judge rendered judgment in favor of the tenant and issued findings 
of fact and conclusions of law. Nevertheless, the Supreme Court of Ohio issued an 

alternative writ, and the respondent judge replied that the matter was moot and that GMS 

had an adequate remedy at law by way of appeal. Approximately a year later, the 

respondent judge moved to dismiss because the case was moot and because a writ was not 

an appropriate remedy to control future actions of a court. 

{¶10} Nonetheless, the Supreme Court of Ohio decided to resolve whether the 

Willoughby Municipal Court should proceed in future forcible entry and detainer actions 

in a summary fashion pursuant to R.C. Chapter 1923.09, rather than Civ.R. 52. The 

court admitted that this method was unusual; “however, we feel that these types of issues 

should be addressed, to more fully accomplish the aims of justice.” 45 Ohio St.3d at 54.1

 

It ruled that the matter was not moot because the issue was capable of repetition, yet 

evading review. The court also held that landlords lacked “an adequate remedy at law if 

the respondents unreasonably delay the submission of judgment entries in order to prepare 

findings of fact and conclusions of law.” Id. Therefore, the Supreme Court of Ohio 

ruled that Civ.R. 52, pursuant to Civ.R. 1(C)(3), was inapplicable to forcible entry and 

detainer actions because such actions are summary proceedings and should not be 

weighed down with time-consuming procedures. 

{¶11} From GMS v. Callahan, GMS argues that this mandamus action is the 

appropriate remedy for ruling that the exclusion clause of Civ.R. 6(A) is not applicable 

 1

In other words, the Supreme Court of Ohio decided to exercise its inherent discretion to issue 

the writ of mandamus in Callahan. State ex rel. Davis v. Cleary, 77 Ohio App.3d 494, 602 N.E.2d 

1183, fn. 3 (8th Dist. 1991). 
to the summary procedures for a forcible entry and detainer action. The adding of 

additional days is contrary to the speedy relief intended by R.C. Chapter 1923, and thus 

clearly inapplicable. Moreover, despite the fact that the underlying case has been 

resolved in GMS’s favor, the issue is not moot because it is capable of repetition, yet 

evading review. Most importantly, GMS continues, an appeal is not an adequate remedy 

at law because a remedy should be complete in its nature, beneficial and speedy. State 

ex rel. Libery Mills v. Locker, 22 Ohio St.3d 102, 488 N.E.2d 883 (1986). An appeal 

cannot be an adequate remedy to resolve this issue because the landlord, as in this case, 

can always obtain a judgment in a second forcible entry and detainer action much sooner 

than obtain a ruling in an appeal. Indeed, an appeal would frustrate the speedy remedy 

intended by R.C. Chapter 1923. Thus, an appeal would not be a beneficial, complete 

and speedy remedy. Accordingly, GMS submits that this court should issue the writ of 

mandamus to control future forcible entry and detainer actions before the respondents so 

that they do not apply the exclusion clause of Civ.R. 6(A) to the three-day notice 

provisions of R.C. Chapter 1923.04(A).2

{¶12} However, these arguments are not persuasive. First, appeal is an adequate 

remedy at law. In the three Ohio cases — Wodzisz, Fed. Property Mgt., and Willis — 

upon which GMS relies to establish the principle that Civ.R. 6(A) does not apply to 

 2

GMS also argues that because the three-day notice is a jurisdictional prerequisite, applying 

the exclusion clause of Civ.R. 6(A) violates Civ.R. 82, which provides: “These rules shall not be 

construed to extend or limit the jurisdiction of the courts of this state.” Regardless of how phrased, the 

issues in this case are whether mandamus is the proper remedy to declare Civ.R. 6(A) inapplicable to 

forcible entry and detainer actions and whether Civ.R. 6(A) is inapplicable to such actions.
eviction actions, the courts of appeals decided the issue on appeal, not through an 

extraordinary writ. Similarly, in the Washington state case, Christensen v. Ellsworth, 

162 Wash.2d 365, 173 P.3d 228 (2007), on which GMS also relies, the landlord obtained 

the desired relief, a ruling that Washington’s exclusion rule did not apply to eviction 

actions, through appeal to the Supreme Court of Washington. 

{¶13} Furthermore, when a process of appeal is available, 

the sole fact that pursuing such process would encompass more delay and 

inconvenience than seeking a writ of mandamus is insufficient to prevent 

the process for constituting a plain and adequate remedy in the ordinary 

course of the law. 

State ex rel. Willis v. Sheboy, 6 Ohio St.3d 167, 451 N.E.2d 1200 (1983), paragraph one 

of the syllabus. Thus, mandamus is precluded because GMS had or has an adequate 

remedy at law. 

{¶14} Additionally, this court concludes that this matter is not a justiciable 

controversy to be decided through mandamus at this time. In GMS v. Callahan, GMS 

commenced the mandamus action while the respondents were “sitting” on the case. 

However, GMS brought this present mandamus action three months after the respondents 

had dismissed the underlying case and two months after it had obtained possession of the 

property. GMS is seeking prospective relief, in essence a declaratory judgment that 

Civ.R. 6(A) does not apply to forcible entry and detainer actions, even if the request is 

carefully phrased in terms of mandamus. 

{¶15} If the allegations in a mandamus complaint indicate that the real object 

sought is a declaratory judgment, the complaint does not state a cause of action in 
mandamus. The court of appeals does not have jurisdiction over claims for declaratory 

judgment. State ex rel. Beane v. Dayton, 112 Ohio St.3d 553, 2007-Ohio-811, 862 

N.E.2d 97. 

{¶16} Assuming arguendo that GMS is not seeking a declaratory judgment, but an 

authentic writ of mandamus, it is still seeking prospective relief. As the Supreme Court 

of Ohio stated in State ex rel. Fed. Homes Properties, Inc. v. Singer, Ohio St.2d 95, 96, 

223 N.E.2d 824 (1967), “[t]he function of mandamus is to compel the performance of a 

present existing duty as to which there is a default. It is not granted to take effect 

prospectively * * *.” Sheboy, 6 Ohio St.3d at 168-169 (“mandamus will not lie to 

compel the issuance of permits to be applied for in the future”). In State ex rel. Home 

Care Pharmacy, Inc. v. Creasy, 67 Ohio St.2d 342, 343, 423 N.E.2d 482 (1981), the court 

ruled that “mandamus will not lie to remedy the anticipated nonperformance of a duty.” 

Thus, this court declines to issue the extraordinary writ of mandamus to remedy a 

possible error in the future. 

{¶17} Alternatively, this court finds that there is no current case and controversy at 

stake. In Cullen v. State ex rel. City of Toledo, 105 Ohio St. 545, 552, 138 N.E. 58 

(1922), the court ruled that the 

function of a court is to render judgment in actual controversies between 

adverse litigants, to command or restrain specific acts affecting existing 

rights of parties before the court as distinguished from declaratory 

judgments affecting possible rights and potential controversies. 

This court will not anticipate how the respondents will rule on the issue in the future. 

{¶18} Accordingly, this court denies the relator’s motion for summary judgment 
and denies the application for a writ of mandamus. Relator to pay costs. This court 

directs the Clerk of the Eighth District Court of Appeals to serve upon the parties notice 

of this judgment and its date of entry upon the journal. Civ.R. 58(B). 

{¶19} Writ denied. 

 

LARRY A. JONES, SR., JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR