[Cite as State ex rel. Rosolowski v. Scott , 2024

- Ohio

- 2074.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE EX REL.
, BENJAMIN : ROSOLOWSKI,

Relator
, : No. 113709

v. :
JUDGE W. MONA’ SCOTT, ET AL.
, :

Respondent s

. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT D ISMISSED DATE D : May 28, 2024

Writ of Mandamus Motion No. 573613 Order No. 574120

Appearances:

Benjamin Rosolowski
, pro se

. Mark Griffin, Cleveland Law Director, James R. Russell, Jr., Chief Assistant Director of Law, and Gilbert Blomgren Assistant Director of Law, for respondents

.

LISA B. FORBES , J.:

Relator, Bejamin Rosolowski (“Rosolowski”) , seeks a writ of

mandamus directing respondents, Judge W. Mon á Scott (“Judge Scott”) and

Magistrate Tamela Womack (“Magistrate Womack,” and collectively“respondents”) , of the Housing Division of the Cleveland Municipal Court, to

reinstate an underlying forcible entry and detainer action that was dismissed

without prejudice because respondents found that Rosolowski did not comply with

certain Housing and Urban Developme nt (“HUD”) regulations prior to initiating the

underlying action. For the reasons that follow, we grant respondent s’ motion to

dismiss and dism iss the complaint for writ of mandamus

.

I. Background

On March 8, 2024, Rosolowski filed the instant complaint. H e
asserted that on January 6, 2023, he initiated a forcible entry and detainer action,

also known as an eviction action, in Rosolowski v. Jackson , Cleveland M.C.

No. 2023

- CVG

- 000195. He sought to evict an alleged holdover tenant whose rent

was subsidized by a federal voucher program administered by the Cuyahoga

Metropolitan Housing Authority (“CMHA”). Rosolowski further alleged that

Magistrate Womack presided over a hearing that took place on July 3, 2023.

Rosolowski alleged that o n July 24, 2023, certai n defenses raised by the tenant at

the hearing were withdrawn, including the defense that Rosolowski failed “to serve

the notice to vacate upon CMHA.” Despite this, on July 26, 2023, Magistrate

Womack issued a decision that recommended dismissal of the eviction action

without prejudice because Rosolow ski failed to serve a notice of the termination of

the tenancy on CMHA, which was required by the lease and 24 C.F.R.982.310(e)(2)(ii)
, 1 a federal regulation titled, “Owner termination of tenancy.”

Rosolowski filed timely objections. On January 2, 2024, Judge Scott issued an order

that overruled the objections and dismissed the action without prejudice. Judge

Scott also denied Rosolowski’s request to designate the entry as a final order.

Rosolowski argued that because Judge Scott refused to designate the order as final,

he had no means to challenge the order and the requirement that he comply with

the notice provisions of this HUD regulation in order to seek the eviction of a tenant.

Rosolowski now asks this court to rule that compliance with HUD

regulations that require notice to a public housing authority overseeing a voucher

program before a landlord initiates an eviction action are not jurisdictional. He

further seeks an order directing res pondents to reinstate the underlying eviction

action.

On April 12, 2024, respondents filed a motion to dismiss Rosolowski’s

complaint for failure to state a claim on which relief could be granted. There,

respondents argued that Rosolowski’s complaint was an attempt to control judicial

discretion and that he was attempting to use a writ of mandamus as a substitute for

an appeal. Respondents also argued that Rosolowski possessed an adequate remedy

at law.

On April 25, 2024, Rosolowski timely filed a brief in opposition to

respondent s’ motion to dismiss. There, he argued against the points the

1 This provision states, “T he owner must give the [Public Housing Authority] a copy of any owner eviction notice to the tenant. ”respondents made in their motion to dismiss, including that Rosolowski lacked an

adequate remedy at law.

II. Law and Analysis

A. Standard for Writ of Mandamus

A writ of mandamus is an extraordinary remedy available when

relators are able to demonstrate by clear and convincing evidence that they have a

clear legal right to the requested relief, that the respondent has a clear legal duty to

provide that relief, an d that they lack an adequate remedy in the ordinary course of

law. State ex rel. Nyamusevya v. Hawkins , 165 Ohio St.3d 22, 2021

- Ohio

- 1122, 175
N.E.3d 495, ¶ 10, citing State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012

- Ohio

69, 960 N.E.2d 452, ¶ 6. The failure to meet these requirements means that a

claimant cannot prevail

. Generally, w here a party possesses a right to appeal, “ [t]he

availability of an appeal is an adequate remedy sufficient to preclude a writ.” State

ex rel. Luoma v. Russo
, 141 Ohio St.3d 53, 2014

- Ohio

- 4532, 21 N.E.3d 305, ¶ 8. See

also State ex rel. White v. Woods
, 156 Ohio St.3d 562, 2019

- Ohio

- 1893, 130 N.E.3d

271 , ¶ 8 (finding that a final, appealable order existed, and that appeal was an
adequate remedy at law that preclud ed relief in mandamus). Further, the ultimate

success of the appeal or a relator’s failure to pursue an available remedy is

immaterial. State ex rel. Davies v. Schroeder , 160 Ohio St.3d 29, 2020

- Ohio

- 1045,
153 N.E.3d 27, ¶ 10, citing State ex rel. Peoples v. Johnson
, 152 Ohio St.3d 418, 2017

-

Ohio

- 9140, 97 N.E.3d 426, ¶ 11.The case is before this court on respondents’ motion to dismiss.

Under the standard in Civ.R. 12(B)(6), a court may dismiss a mandamus action “if,

after all factual allegations of the complaint are presumed true and all reasonable

inferences are made in t he relator’s favor, it appears beyond doubt that he can prove

no set of facts entitling him to the req uested writ of mandamus .” Nyamusevya at

¶ 10, citing State ex rel. Russell v. Thornton , 111 Ohio St.3d 409, 2006

- Ohio

- 5858,

856 N.E.2d 966, ¶ 9.

B. Adequate Remedy at Law

This court will first address the third requirement for relief in

mandamus because it is dispositive in this case. In his complaint and brief in

opposition to respondents’ motion to dismiss, Rosolowski argues that he has no

adequate remedy at law to challenge respondents’ decision s because he may not

appeal the entry dismissing his forcible entry and detainer action because the

dismissal was without prejudice. Generally, Rosolowski is correct that a dismissal

without prejudice is not a final order capable of invoking appellate jurisdiction

under R.C. 2505.02. See Crown Servs. v. Miami Valley Paper Tube Co. , 162 Ohio

St.3d 564, 2020

- Ohio

- 4409, 166 N.E.3d 1115

. However, there are situations where

an order dismissing a case without prejudice is capable of invoking appellate

jurisdiction. Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc.
, 114

Ohio St.3d 82, 2007

- Ohio

- 2942, 868 N.E.2d 663 (finding that an order dismissing

a case without prejudice for lack of personal jurisdiction was a final, appealable

order even though the dismissal was otherwise than on the merits )

. See also Wardv. Summa Health Sys. , 184 Ohio App.3d 254, 2009

- Ohio

- 4859, 920 N.E.2d 421, ¶ 7

(9th Dist.) (finding that a dismissal without prejudice for failure to file a

Civ.R. 10(D)(2) affidavit of merit in a medical malpractice action was a n appealable

order ) ; Lippus v. Lippus
, 6th Dist. Erie No. E

- 07

- 003, 2007

- Ohio

- 6886, ¶ 11

- 12
(finding that an involuntary dismissal without prejudice for failure to appear at a
hearing was a n appealable order ) ; MBNA Am. Bank, N.A. v. Harper
, 1st Dist.

Hamilton No. C

- 060937, 2007

- Ohio

- 5130, ¶ 1

- 3, 13; MBNA Am. Bank, N.A. v.
Canfora
, 9th Dist. Summit No. 23588, 2007

- Ohio

- 4137, ¶ 6 (finding that the

dismissal of a motion to confirm an arbitration award without prejudice was a n
appealable order) ; White v. Lima Mem. Hosp
., 3 d Dist. Allen No. 1

- 86

- 62, 1987 Ohio

App. LEXIS 9958, 8
, (Dec. 7, 1987) (finding that a n order dismissing an action

without prejudice that contained a provision that prohibited the appellant from

requesting a jury trial in a refiled action was a n appealable order)

. Therefore, t he

question is not as simple as Rosolowski claims and an analysis is necessary of

whether the dismissal order in the underlying case could invoke appellate

jurisdiction.

Initially, this court must address Rosolowski’s claim that Judge

Scott determined the issue of appealability in this case. In support of his argument

that he could not appeal, Rosolowski claims that because Judge Scott would not

includ e language in the entry rendering it a final order, it was not a n order capable

of invoking appellate jurisdiction. As a result, he claims he had no mechanism for

appellate review and would be forced to comply with the notice provisions orrequired to engage in a never

- ending series of filings and dismissals without

addressing the ultimate issue , making relief in mandamus his sole remedy

.

However, a trial judge has no authority to determine whether an

order is capable of invoking appellate jurisdiction. A trial judge has latitude in the

way it crafts its decisions, including adding Civ.R. 54(B) language, but it is the

appellate court that determines whether an order is appealable under R.C. 2505.02

.

State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of

Common Pleas , 129 Ohio St.3d 30, 2011

- Ohio

- 626, 950 N.E.2d 149, ¶ 16, quoting In

re S.J. , 106 Ohio St.3d 11, 2005 Ohio 3 215, 829 N.E.2d 1207, ¶ 10

- 11 (“‘[T]he

determination as to the appropriateness of an appeal lies solely with the appellate

court * * *.’”). Therefore, Judge Scott’s refusal to include requested language in the

dismissal entry is immaterial in this case. 2

In virtually identical circumstances, this court heard an appeal from

an order entered by Judge Scott in an unrelated case dismissing a forcible entry and

detainer action without prejudice based on a plaintiff’s failure to comply with a local

rule of court that required plaintiff s to certify that the subject premises were free of

lead when filing a complaint. Shaker House L

. L

. C

. v. Daniel , 2022

- Ohio

- 2778, 193

N.E.3d 1159 (8th Dist.). Loc.R. 3.015 of the Cleveland Municipal Court, Housing

2 Civ.R. 54(B) is inapplicable to the underlying action. “A judgment entry giving or denying a landlord possession of premises is final (and immediately appealable), regardless of whether other claims between the parties remain to be determined by the trial court.” Crossings Dev. Ltd. Partnership v. H.O.T. Inc. , 96 Ohio App. 3d 475, 482, 645 N.E.2d 159 (9th Dist.1994)

. See also Colombo Ents. v. Fegan , 142 Ohio App.3d 551, 756 N.E.2d 211 (8th Dist.2001) ; Day v. Derry , 11th Dist. Trumbull No. 2023

- T

- 0033, 2024

- Ohio

- 791, ¶ 11.Division, provided in part that a complaint for eviction must include “documentary

evidence from the City of Cleveland [D]epartment of Building and Housing verifying

Lead

- Safe Certification of all residential units built before January 1, 1978, unless

othe rwise exempt.” Id . at ¶ 7. There, an appeal was taken from an order dismissing

a forcible entry and detainer action without prejudice after the plaintiff did not

provide a certification that the leased premises were lead

- free as required by a local

rule of court. Id . at ¶ 10.

During the pendency of the appeal, this court issued an order

directing the parties to address why the appeal should not be dismissed for lack of a

final, appealable order. Id

. Motion No. 551864 (Jan. 13, 2022). On February 3,

2022, this court issued an order finding that this court had jurisdiction to hear the

appeal :
Sua sponte, this court ordered the appellant to file a motion to show cause why the appeal should not be dismissed based on the fact the forcible entry and detainer cause of action was dismissed without prejudice and the second cause of action for money da mages remained pending. The appellee did not file a response. Based on the appellant ’ s show cause brief, the appeal shall proceed forward. Although the appellant could refile the eviction action it would first have to obtain the lead

- safe certificate th at it claims is an invalid requirement. The appellant would have no recourse to determine whether Housing Court Local Rule 3.015, which imposes the certificate requirement, is enforceable when there is a statutory right to evict. Additionally, the second cause of action for money damages has been dismissed and eviction orders have been found to be final orders even when the claim for money damages remains pending. See Bryan v. Johnston , 7th Dist. Carrol No. 11 CA871, 2012

- 0hio

- 2703, ¶ 5.

Id

. Motion No. 552289 (Feb. 3, 2022). This court addressed the merits of the

appeal, found that the requirement imposed by Loc.R. 3.015 was invalid, anddetermined that the trial judge could not enforce the local rule against landlords

seeking to evict tenants. Id . at ¶ 28.

Rosolowski is in the same position as the appellant in Shaker House

. Rosolowski would need to comply with the trial court’s requirement that he satisfy

federal regulations and the notice provision in the lease before he could refile his

eviction action or risk a cycle of filings and dismissals with the issue ultimately

evading appellate review. Under these same circumstances, t his court determined

that, e ven though a forcible entry and detainer action was dismissed without

prejudice, the order could invoke appellate jurisdiction under R.C. 2505.02. Shaker

House

. Similarly, this court found that an appeal constituted an adequate

remedy at law precluding a writ of mandamus in an action concerning whether

Civ.R. 6(A) applied to forcib le entry and detainer actions. State ex rel. GMS Mgt.

Co. v. Lazzaro , 8th Dist. Cuyahoga No. 97875, 2012

- Ohio

- 3961. There, a landlord

s ought to evict a tenant in an action before the Berea Municipal Court. Id. at ¶ 1.

The tenant successfully argued that the landlord did not fulfill the three

- day notice

period required by R.C. 1923.04 ( A) , and the case was dismissed . In th at case, the

three

- day notice was served on the tenant on a Wednesday and the action was

commenced on the following Tuesday after a federal holiday was observed on

Monday

. Id . at ¶ 2. The tenant argued
, and the trial judge agreed
, that Civ.R. 6(A)

applied to the notice period required under the statute

. Id

. This rule stated in part

that “ ‘ [w]hen the period of time prescribed or allowed is less than seven d ays,intermediate Saturdays, Sundays, and legal holidays shall be excluded in the

computation. ’ ” Id

. at ¶ 2 , quoting Civ.R. 6(A). The landlord filed another eviction

action and successfully obtained possession of the premises through that second

action. Id . The landlord then instituted a mandamus action against the judge that

presided over the eviction actions

. Id . at ¶ 3. The landlord sought to have this court

review the applicability of Civ.R. 6(A) to eviction actions.

This court determined that mandamus was inappropriate because,

among other reasons, the landlord possessed an adequate remedy at law through

appeal. Id. at ¶ 12

. This court noted that the cases on which the landlord relied to

support that argument that Civ.R. 6(A) did not apply were all decided on appeal. Id.

at ¶ 12, citing Wodzisz v. Bayes , 10th Dist. Franklin No. 96APE07

- 891, 1997 Ohio

App. LEXIS 1229 (Mar. 25, 1997) ; Fed. Property Mgt. v. Daugherty , 2d Dist.

Montgomery No. 12591, 1991 Ohio App. LEXIS 3048 (June 28, 1991) ; and Willis v.

Thibault , 3d Dist. Marion No. 9

- 87

- 47, 1989 Ohio App. LEXIS 2967 (July 31, 1989)

.
This court held that “mandamus is precluded because [the landlord] had or has an

adequate remedy at law.” Id . at ¶ 13.

The virtually identical circumstances in Shaker House
, 2022

- Ohio

2778, 193 N.E.3d 1159
, and similar circumstances in Lazzaro demonstrate that

Rosolowski could have, but did not, appeal the dismissal of his eviction action and

seek review of the respondents’ determination of whether the notice provisions atissue were jurisdictional. Therefore, appeal constitute d an adequate remedy at law

that now preclud es relief in mandamus. 3

Respondents’ motion to dismiss is granted because Rosolowski

cannot prevail in this action where he possesses or possessed an adequate remedy

at law. Costs assessed against relator. The clerk is directed to serve on the parties

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

Complaint dismissed.

_______________________________ LISA B. FORBES
, JUDGE

MARY EILEEN KILBANE
, P. J., CONCURS; SEAN C. GALLAGHER , J., DISSENTS

3 This court takes no position on the ability of respondent s to find that the satisfaction of notice provisions incorporated into the lease and federal regulations are required prerequisites to jurisdiction in a forcible entry and detainer action.