[Cite as State ex rel. Montgomery v. Kerr, 2013-Ohio-5170.]

 STATE OF OHIO, JEFFERSON COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

STATE OF OHIO, ex rel., ) 

THEODIS MONTGOMERY, JR. ) CASE NO. 13 JE 26 

 ) 

 RELATOR, ) 

 ) 

 - VS - ) OPINION 

 ) AND 

HON. SAMUEL KERR, ) JUDGMENT ENTRY 

 ) 

 RESPONDENT. ) 

CHARACTER OF PROCEEDINGS: Petition for Writ of Mandamus 

JUDGMENT: Petition Denied. 

APPEARANCES: 

For Relator: Theodis Montgomery, Jr., Pro-se 

#A 590992 

Lake Erie Correction Institution 

501 Thompson Road 

P.O. Box 8000 

Conneaut, OH 44030 

For Respondent: Attorney Jane M. Hanlin 

Prosecuting Attorney 

Attorney Michael J. Calabria 

Asst. Prosecuting Attorney 

Jefferson County Justice Center 

16001 State Route 7 

Steubenville, OH 43952 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Dated: October 28, 2013
[Cite as State ex rel. Montgomery v. Kerr, 2013-Ohio-5170.]

PER CURIAM: 

{¶1} Relator, Theodis Montgomery, Jr., filed a pro-se Petition for a Writ of 

Mandamus seeking an order compelling Respondent, Jefferson County Probate Court 

Judge Samuel Kerr, to vacate a February 28, 2012 judgment approving and settling the 

final and distributive account for the estate of Theodis Montgomery, Sr. For the following 

reasons, we deny the writ and dismiss the petition. 

{¶2} According to the petition, Relator argues that he was not provided with 

notice of the probate court proceedings regarding the administration of the estate of his 

father, Theodis Montgomery, Sr., to which he claims to have an interest. Specifically, he 

contends that he was not provided with notice of the final account. Accordingly, Relator 

states that he was unable to file exceptions/objections to the administration of his father's 

estate. Relator filed his petition for mandamus on August 28, 2013. He attached what he 

purported to be an affidavit in support of his petition, however this document was not 

notarized. This is not fatal to our consideration of the merits. The requirement that a 

petition for writ of mandamus be verified by affidavit has been effectively displaced by 

Civ.R. 11, which states: "Except when otherwise specifically provided by these rules, 

pleadings need not be verified or accompanied by affidavit." Civ.R. 11. See State ex rel. 

Clark v. Krichbaum, 7th Dist. No. 07-MA-66, 2007-Ohio-3185, at ¶10, citing State ex rel. 

Madison v. Cotner , 66 Ohio St.2d 448, 449, 423 N.E.2d 72 (1981). 

{¶3} This court has jurisdiction to hear an original mandamus action pursuant to 

Article IV, Section 3(B)(1) of the Ohio Constitution and R.C. 2731.02. In order to be 

entitled to a writ of mandamus a relator must establish: (1) a clear legal right to the 

requested relief, (2) a clear legal duty on the part of the respondent to provide such relief, 

and (3) the lack of an adequate remedy in the ordinary course of law. State ex rel. 

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996). The burden is 

on the relator to establish the elements to obtain the writ. State ex rel. Dehler v. Sutula, 

74 Ohio St.3d 33, 34, 656 N.E.2d 332 (1995). 

{¶4} The office of the prosecuting attorney filed a motion to dismiss the petition 

on behalf of the probate court judge on October 11, 2013. "[A] court can dismiss a 
- 2 - 

mandamus action under Civ.R. 12(B)(6) for failure to state a claim upon which relief can 

be granted if, after all factual allegations of the complaint are presumed true and all 

reasonable inferences are made in relator's favor, it appears beyond doubt that he can 

prove no set of facts entitling him to the requested writ of mandamus." State ex rel. 

Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶9. 

{¶5} Respondent argues that Relator's petition fails because he has a plain and 

adequate remedy at law, specifically a direct appeal, and further argues Relator has no 

clear right to the relief requested. Respondent is correct in both of these assertions. 

Mandamus is not the proper legal remedy to correct errors and procedural irregularities in 

the course of a case. Ex rel. Clark, at ¶13 citing State ex rel. Sims v. Griffin, 8th Dist. No. 

79029, 2001 WL 1671437 (Nov. 20, 2001). Indeed, Relator has filed a direct appeal, 

which is currently pending in this court, alleging the same general arguments as 

contained in his petition herein. (In the Matter of the Estate of Theodis Montgomery, Sr., 

Case No. 13-JE-20). 

{¶6} Further, Relator's petition does not allege that he has a clear legal right to 

the relief sought. "In the body of law covering extraordinary legal remedies it is 

fundamental that before a writ of mandamus will be allowed the relator must establish a 

clear right to the relief sought." State ex rel. Welsh v. Ohio State Medical Board, 176 

Ohio St. 136, 198 N.E.2d 74 (1964). Accordingly, the petition is denied. Costs taxed 

against Relator. Final order. Clerk to serve notice as provided by the Civil Rules. 

DeGenaro, P.J., concurs. 

Donofrio, J., concurs. 

Vukovich, J., concurs.