[Cite as Fields v. Cottrill, 2020-Ohio-5163.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

GERALD D. FIELDS : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Relator : Hon. Patricia A. Delaney, J. 

 : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

KELLY J. COTTRILL, JUDGE, ET AL. : 

 : Case No. CT2020-0046 

 : 

 Respondents : O P I N I O N 

CHARACTER OF PROCEEDING: Writ of Mandamus 

JUDGMENT: Dismissed 

DATE OF JUDGMENT: November 4, 2020 

APPEARANCES: 

For Relator For Respondents 

GERALD D. FIELDS D. MICHAEL HADDOX 

#765-446 Prosecuting Attorney, Muskingum 

Noble Correctional Institution County 

15708 McConnellsville Road MARK Z. ZANGHI 

Caldwell, OH 43724 Assistant Prosecuting Attorney 

 P.O. Box 189 

 27 N. 5th Street, Suite 201 

 Zanesville, OH 43702-0189 
Muskingum County, Case No. CT2020-0046 2 

Wise, Earle, J.

{¶ 1} On September 28, 2020, Relator Gerald D. Fields filed a Complaint/Petition 

for Writ of Mandamus Pursuant to Article IV, Section 3, of the Ohio Constitution. 

Factual Background 

{¶ 2} Mr. Fields requests that the Court order Respondents Judge Kelly J. Cottrill, 

the Muskingum County Court of Common Pleas,1 and the Zanesville Police Department 

to release $7,700.00 in cash to his brother. [Complaint at ¶ 18] Mr. Fields contends the 

cash belongs to him and was seized from a pillow during the search of his residence. [Id. 

at ¶ 5] Following the search of his residence, Mr. Fields was indicted on six drug offenses 

which resulted in a jury trial. [Id. at ¶ 6] As part of its verdict, the jury determined the 

$7,700.00 was not subject to forfeiture. [Id.] A Judgment Entry filed by the trial court on 

June 6, 2019 indicates, “the Jury further found that the Seven Thousand Seven Hundred 

Dollars ($7,700.00) was not subject to forfeiture to the State of Ohio[.]” [Id.] 

{¶ 3} Thereafter, Mr. Fields filed the following motions in the trial court attempting 

to secure the return of the $7,700.00: (1) Motion for Return of Property filed on November 

25, 2019; (2) Motion for Judgment on the Pleadings filed on December 18, 2019; and (3) 

Motion to Release and Return Unlawfully Held Property filed on July 17, 2020. The trial 

court denied each motion. Mr. Fields never appealed the denial of any of these motions 

 

1 “A court is defined to be a place in which justice is judicially administered. It is the exercise of judicial 

power, by the proper officer or officers, at a time and place appointed by law.” Todd v. United States, 158 

U.S. 278, 284, 15 S.Ct. 889, 891, 39 L.Ed. 982. (1895). Absent express statutory authority, a court can 

neither sue nor be sued. State ex rel. Cleveland Mun. Court v. Cleveland City Council, 34 Ohio St.2d 120, 

121, 296 N.E.2d 544 (1973). The Muskingum County Court of Common Pleas is not a proper party to this 

original action and is hereby dismissed as party to this matter. 
Muskingum County, Case No. CT2020-0046 3 

and now seeks mandamus relief. The Muskingum County Prosecutor, on behalf of 

Respondents, moved to dismiss Mr. Fields’s writ under Civ.R. 12(B)(6). 

Standard of Review 

{¶ 4} A court is permitted to dismiss a 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 the relator’s 

favor, it appears beyond doubt that he can prove no set of facts entitling him to the 

requested writ of mandamus.” (Citation omitted.) State ex rel. Russell v. Thornton, 111 

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

{¶ 5} For a writ of mandamus to issue, the Relator must have a clear legal right 

to the relief prayed for, the Respondent must be under a clear legal duty to perform the 

requested act, and Relator must have no plain and adequate remedy in the ordinary 

course of law. (Citations omitted.) State ex rel. Berger v.McMonagle, 6 Ohio St.3d 28, 29, 

451 N.E.2d 225 (1983). If Relator has a plain and adequate remedy at law, a writ of 

mandamus will not issue. State ex rel. Blandin v. Beck, 114 Ohio St.3d 455, 2007-Ohio4562, 872 N.E.2d 1232, ¶ 18. 

Legal Analysis 

{¶ 6} We find Mr. Fields has an adequate remedy at law that precludes the 

issuance of a writ of mandamus. This adequate remedy is an action in replevin. As we 

explained in State v. Young, 5th Dist. Richland No. CA-2810, 1991 WL 87203 (May 3, 

1991): “When the police seized appellant’s property, they effectively became bailees of 
Muskingum County, Case No. CT2020-0046 4 

the property and remain as such unless and until [appellant] commence[s] a forfeiture 

proceeding * * *] Id. at *1. 

{¶ 7} Further, in State ex rel. Johnson v. Kral, 153 Ohio St.3d 231, 2018-Ohio 

2382, 103 N.E.3d 814, the Court affirmed the court of appeals’ dismissal of a complaint 

for writ of mandamus finding relator had an adequate remedy at law for the return of 

property by the Toledo Police Department by filing an action for replevin. Id. at ¶ 5. The 

Court quoted State ex rel. Jividen v. Toledo Police Dept., 112 Ohio App.3d 458 459, 679 

N.E.2d 34 (6th Dist.1996), wherein the court of appeals stated: “The proper action to 

reclaim possession of property based on unlawful seizure or detention is an action for 

replevin.” See also State ex rel. Harris v. Toledo, 74 Ohio St.3d 36, 38, 656 N.E.2d 334 

(1995) (“Harris could have availed himself of the alternative adequate legal remedy 

of replevin under R.C. Chapter 2737 to recover possession of the truck. See State ex rel. 

Luke v. Corrigan (1980), 61 Ohio St.2d 86, 15 O.O.3d 123, 399 N.E.2d 1208 (affirming 

dismissal of mandamus complaint on the basis that relators had an adequate remedy at 

law by way of an action in replevin to recover personal property seized under a search 

warrant)[.]" 

{¶ 8} For these reasons, Mr. Fields has an adequate remedy at law and cannot 

state a claim for mandamus relief. Therefore, the Court grants Judge Cottrill’s and the 

Zanesville Police Department’s Motion to Dismiss under Civ.R. 12(B)(6). The clerk of 

courts is hereby directed to serve upon all parties not in default notice of this judgment 

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

{¶ 9} MOTION GRANTED. 

{¶ 10} CAUSE DISMISSED. 
Muskingum County, Case No. CT2020-0046 5 

{¶ 11} COSTS TO RELATOR. 

{¶ 12} IT IS SO ORDERED. 

By Earle E. Wise, Jr., J. 

Gwin, P.J. and 

Delaney, J. concur. 

 

 

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