[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.
