[Cite as State ex rel. Anderson v. Sheeran, 2019-Ohio-3792.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Kim L. Anderson, : 

 

 Relator, : 

v. : No. 18AP-880 

 

Judge Patrick E. Sheeran, Judge, : (REGULAR CALENDAR) 

Court of Common Pleas, et al., 

 : 

 Respondents. 

 

D E C I S I O N 

Rendered on September 19, 2019

 

Kim L. Anderson, pro se. 

Ron O'Brien, Prosecuting Attorney, and Bryan B. Lee, for 

respondents. 

 

IN MANDAMUS 

ON MOTION TO DISMISS 

NELSON, J. 

{¶ 1} Relator Kim L. Anderson was convicted in 2008 of multiple offenses in 

connection with a mortgage fraud scheme, sentenced to fifteen years in prison, and ordered 

to pay over a million dollars in restitution. He has filed a complaint seeking a writ of 

mandamus against the common pleas court judge and the assistant prosecuting attorney 

who handled his case; he asks for dismissal of the restitution order, reimbursement of his 

prison account for funds previously withdrawn to satisfy that order, and immediate release 

from prison. Nov. 19, 2018 Complaint at 15. 

{¶ 2} The state has filed a motion to dismiss Mr. Anderson's complaint for failure 

to state a claim upon which relief may be granted, arguing that Mr. Anderson has failed to 
No. 18AP-880 2 

comply with the provision of R.C. 2969.25 that requires an inmate upon commencement of 

a civil action to file "an affidavit that contains a description of each civil action or appeal of 

a civil action that the inmate has filed in the previous five years in any state or federal court." 

The state also argues that res judicata bars Mr. Anderson's claims because he "continues, 

after several appeals, to insist that his convictions are improper" and is simply attempting 

to "collaterally attack his convictions." Motion to Dismiss of Respondents to Relator's 

Petition for a Writ of Mandamus at 6-7. 

{¶ 3} Citing State v. Anderson, 10th Dist. No. 17AP-53, 2017-Ohio-5609, in which 

we held that a previous motion filed by Mr. Anderson to waive or suspend restitution was 

properly dismissed by the trial court on the grounds of res judicata and the law of the case 

doctrine, the magistrate recommends sustaining the state's motion and dismissing the 

complaint. App'x at ¶ 22 (attached). 

{¶ 4} Mr. Anderson has not filed a response to the state's motion to dismiss, nor 

has he lodged objections to the magistrate's decision. 

{¶ 5} We take judicial notice of the Ohio Department of Rehabilitation and 

Correction letter sent and docketed after Mr. Anderson had filed this mandamus action, 

notifying the trial court of Mr. Anderson's recent release from prison. May 22, 2019 Letter 

from ODRC; see, e.g., State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio4798, ¶ 10 ("It is appropriate for us to take judicial notice of the [lower court's] dismissal 

entry in deciding whether dismissal of Everhart's prohibition claim was warranted"). The 

release renders Mr. Anderson's request for release moot. Nonetheless, he did fail to comply 

with R.C. 2969.25 when he filed this action. That failure is basis for dismissal. See Hazel v. 

Knab, 130 Ohio St.3d 22, 2011-Ohio-4608. 

{¶ 6} Moreover, when no party files objections, Civ.R. 53(D)(4)(c) states that "the 

court may adopt a magistrate's decision, unless it determines that there is an error of law 

or other defect evident on the face of the magistrate's decision." Mr. Anderson's release 

prevents us from adopting the magistrate's first finding of fact stating that he is "currently 

incarcerated," but we agree with the decision insofar as it recommends that the complaint 

be dismissed. 

{¶ 7} As the magistrate notes, Mr. Anderson has attempted repeatedly to attack the 

restitution order through postconviction litigation, and we have repeatedly held that res 
No. 18AP-880 3 

judicata bars consideration of his claim that the order is improper. See Anderson, 2017-

Ohio-5609, at ¶ 11 (recounting the procedural history of motions Mr. Anderson filed "to 

stay collection of restitution," "to vacate restitution," and others "complaining about 

restitution issues"); State v. Anderson, 10th Dist. No. 14AP-61, 2014-Ohio-3699, ¶ 10 

("Issues regarding the determination of restitution are matters that could have been raised 

in his direct appeal," and such matters are barred by res judicata). 

{¶ 8} We grant the state's motion to dismiss, and dismiss Mr. Anderson's 

complaint. 

Magistrate's decision adopted in part; 

motion to dismiss granted; complaint dismissed. 

BRUNNER and BEATTY BLUNT, JJ., concur. 

_________________ 

 
No. 18AP-880 4 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. Kim L. Anderson, : 

 

 Relator, : 

v. : No. 18AP-880 

 

Judge Patrick E. Sheeran Judge, : (REGULAR CALENDAR) 

Court of Common Pleas, Courthouse, et al., 

 : 

 Respondents. 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on May 14, 2019

 

Kim L. Anderson, pro se. 

Ron O'Brien, Prosecuting Attorney, and Bryan B. Lee, for 

respondents. 

 

IN MANDAMUS 

ON MOTION TO DISMISS 

{¶ 9} Relator, Kim L. Anderson, has filed this original action requesting this court 

issue a writ of mandamus ordering respondent the Honorable Patrick E. Sheeran, judge of 

the Franklin County Court of Common Pleas, to dismiss the restitution order from his 

underlying criminal case, order that all monies removed from his inmate account be 

reimbursed, and his immediate release from incarceration due to the miscalculation of the 

amount of restitution owed. Relator also names Assistant Prosecuting Attorney Scott Smith 

as a respondent asserting that he failed to present accurate information from which the 

court then made its erroneous determinations. 
No. 18AP-880 5 

Findings of Fact: 

{¶ 10} 1. Relator is an inmate currently incarcerated at Marion Correctional 

Institution. 

{¶ 11} 2. In the underlying criminal action, relator was found guilty of multiple 

offenses including money laundering, engaging in a pattern of corrupt activity, and 

complicity to commit the following: theft, identity fraud, and forgery, for his facilitation of 

a $1.1 million mortgage-fraud scheme. The trial court sentenced relator to a 15-year prison 

term and ordered him to pay restitution in the total amount of $1,178,750. 

{¶ 12} 3. Relator appealed his conviction to this court raising five assignments of 

error. State v. Anderson, 10th Dist. No. 08AP-1071, 2009-Ohio-6566. This court's decision 

was upheld by the Supreme Court of Ohio. 

{¶ 13} 4. Thereafter, relator began to engage in extensive post-judgment motion 

practice. Relator has filed more than 35 post-judgment motions, requests, and petitions 

with the trial court, many of which are repetitive, and several raise issues relating to 

restitution. Additionally, this court has issued several prior decisions addressing relator's 

appeals and multiple memorandum decisions regarding relator's motions to reopen, 

reconsider, certify a conflict, and for en banc consideration. The Supreme Court has also 

addressed this case on at least seven occasions, including applications to disqualify the trial 

judge. 

{¶ 14} 5. Recently, in State v. Anderson, 10th Dist. No. 17AP-53, 2017-Ohio-5609, 

this court heard relator's appeal of his motion to waive or suspend restitution which had 

been denied by the trial court. This court determined that res judicata and the law of the 

case doctrine both applied, stating: 

Under the doctrine of res judicata, a final judgment of 

conviction bars a convicted defendant who was represented 

by counsel from raising and litigating in any proceeding 

except an appeal from that judgment, any defense or any 

claimed lack of due process that was raised or could have been 

raised by the defendant at trial, which resulted in that 

judgment of conviction, or on an appeal from that judgment. 

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), 

paragraph nine of the syllabus. The doctrine of res judicata 

"'promotes principles of finality and judicial economy by 

preventing endless relitigation of an issue upon which there 

was already a full or fair opportunity to be heard.'" Daniel v. 
No. 18AP-880 6 

Williams, 10th Dist. No. 13AP-155, 2014-Ohio-273, ¶ 18, 

quoting State v. Jama, 10th Dist. No. 11AP-210, 2012-Ohio2466, ¶ 45, citing State v. Saxon, 109 Ohio St.3d 176, 2006-

Ohio-1245, ¶ 18, 846 N.E.2d 824. 

The law of the case doctrine also is applicable to this case. As 

we recently stated in State v. Monroe, 10th Dist., 2015-Ohio844, ¶ 29, 29 N.E.3d 391: 

The law of the case is a longstanding doctrine in Ohio 

jurisprudence. "[T]he doctrine provides that the decision of a 

reviewing court in a case remains the law of that case on the 

legal questions involved for all subsequent proceedings in the 

case at both the trial and reviewing levels." Nolan v. Nolan, 11 

Ohio St.3d 1, 3, 11 Ohio B. 1, 462 N.E.2d 410 (1984). "The 

doctrine is necessary to ensure consistency of results in a case, 

to avoid endless litigation by settling the issues, and to 

preserve the structure of superior and inferior courts as 

designed by the Ohio Constitution." State ex rel. Potain v. 

Mathews, 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979). 

As such, appellant's current claims could have been raised on 

direct appeal, including his ineffective assistance of counsel 

claim as it arises from counsel's alleged failure to request a 

hearing on the restitution issue at the sentencing hearing in 

which appellant was present. In addition, appellant could 

have tried to raise this issue in one of his earlier motions, and 

in fact did challenge the orders of restitution in three earlier 

trial court filings. 

Id. at ¶ 8-10. 

{¶ 15} 6. On November 19, 2018, relator filed the instant mandamus action again 

challenging the amount of restitution he had been ordered to pay and the collection of same. 

{¶ 16} 7. On December 4, 2018, respondent filed a motion to dismiss. 

{¶ 17} 8. Relator has not filed a response to the motion to dismiss and the matter is 

currently before the magistrate. 

Conclusions of Law: 

{¶ 18} For the reasons that follow, it is this magistrate's decision that this court 

should dismiss relator's petition for a writ of mandamus. 
No. 18AP-880 7 

{¶ 19} The Supreme Court of Ohio has set forth three requirements which must be 

met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to 

the relief prayed for; (2) that respondent is under a clear legal duty to perform the act 

requested; and (3) that relator has no plain and adequate remedy in the ordinary course of 

the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). 

{¶ 20} A motion to dismiss for failure to state a claim upon which relief can be 

granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. 

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint, the 

court must take all the material allegations as admitted and construe all reasonable 

inferences in favor of the nonmoving party. Id. 

{¶ 21} In order for a court to dismiss a complaint for failure to state a claim upon 

which relief can be granted, it must appear beyond doubt from the complaint that relator 

can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants 

Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is not subject 

to dismissal under Civ.R. 12(B)(6) if the complaint alleges the existence of a legal duty by 

the respondent and the lack of an adequate remedy at law for relator with sufficient 

particularity to put the respondent on notice of the substance of the claim being asserted 

against it, and it appears that relator might prove some set of facts entitling him to relief. 

State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94 (1995). 

For the following reasons, respondent's motion should be granted and relator's complaint 

should be dismissed. 

{¶ 22} As this court stated in Anderson, 2017-Ohio-5609, res judicata and the law 

of the case doctrine, both apply here to relator's latest challenge to the judgment of the trial 

court. On those grounds, this court should grant respondent's motion and dismiss relator's 

complaint. Further, inasmuch as relator has not prevailed, this court should order the clerk 

to collect periodic payments from his inmate account to pay the costs of this proceeding. 

 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 
No. 18AP-880 8 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as 

error on appeal the court's adoption of any factual finding or 

legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), 

unless the party timely and specifically objects to that factual 

finding or legal conclusion as required by Civ.R. 53(D)(3)(b).