[Cite as State v. Buehler, 2018-Ohio-4028.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 107462



                                      STATE OF OHIO

                                                                  RESPONDENT

                                                     vs.

                                       PAUL BUEHLER
                                                                  RELATOR




                                              JUDGMENT:
                                              WRIT DENIED


                                              Writ of Mandamus
                                              Motion No. 520231
                                              Order No. 521142


        RELEASE DATE: October 3, 2018
[Cite as State v. Buehler, 2018-Ohio-4028.]
FOR RELATOR

Paul Buehler, pro se
Inmate No. 188462
Madison Correctional Institution
P.O. Box 740
London, Ohio 43140


ATTORNEYS FOR RESPONDENT

Michael C. O’Malley
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Buehler, 2018-Ohio-4028.]
MARY J. BOYLE, P.J.:

        {¶1} On July 18, 2018, Paul Buehler, commenced this mandamus action to

compel the Cuyahoga County Common Pleas Court to provide him with accurate and

certified copies of the jury verdict forms in the underlying case, State v. Buehler,

Cuyahoga C.P. No. CR-85-199866-B. On August 15, 2018, the respondent, through the

Cuyahoga County Prosecutor, moved for summary judgment on the grounds of

impossibility and procedural defects. Buehler did not file a brief in opposition. For the

following reasons, this court grants the state’s motion for summary judgment and denies

the application for a writ of mandamus.

        {¶2} Attached to the state’s dispositive motion is the affidavit of Judge Deena

Calabrese.      She swears that she is the assigned judge in the underlying case, that she and

her bailiff have searched and reviewed the print and electronic documents and records in

their possession related to the underlying case, and that they do not currently possess the

completed jury verdict forms.             The state also attached the affidavit of James P. Boyle,

who is the Manager of the Criminal Division for the Clerk of Courts of the Cuyahoga

County Common Pleas Court.1 He swears that he has searched and reviewed all print

and electronic documents and records in the underlying case in possession of the Clerk’s

Office and that the office does not currently possess any completed jury verdict forms in

the underlying case.


        1James   Boyle is not related to Eighth District Court of Appeals Judge Mary J. Boyle.
      {¶3} These affidavits establish that the respondent does not have the requested

jury forms.    The writ of mandamus will not issue to compel a custodian of public

records to furnish records which are not in his possession or control.   State ex rel. Fant

v. Mengel, 62 Ohio St.3d 197, 580 N.E.2d 1085 (1991), and State ex rel. Hubbard v.

Fuerst, 8th Dist. Cuyahoga No. 94799, 2010-Ohio-2489.
[Cite as State v. Buehler, 2018-Ohio-4028.]
        {¶4} The petition is defective because it is improperly captioned.        Buehler styled

this petition as “State of Ohio v. Paul Buehler — Motion for writ of mandamus.” R.C.

2731.04 requires that an application for a writ of mandamus “must be by petition, in the

name of the state on the relation of the person applying.”       This failure to properly caption

a mandamus action is sufficient grounds for denying the writ and dismissing the petition.

Maloney v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226, 181 N.E.2d 270

(1962).     Moreover, the failure to caption the case correctly creates uncertainty as to the

identity of the respondent.          This court has held that this deficiency alone also warrants

dismissal. State ex rel. Calloway v. Court of Common Pleas of Cuyahoga Cty., 8th Dist.

Cuyahoga No. 71699, 1997 Ohio App. LEXIS 79452 (Feb. 27, 1997); and Jordan v.

Cuyahoga Cty. Court                 of Common Pleas, 8th Dist. Cuyahoga No. 96013,

2011-Ohio-1813. Additionally, mandamus may not be commenced by motion. Myles v.

Wyatt, 62 Ohio St.3d 191, 580 N.E.2d 1080 (1991).

       {¶5} Buehler also did not comply with R.C. 2969.25(C), which requires that an

inmate file a certified statement from his prison cashier setting forth the balance in his

private account for each of the preceding six months.           This also is sufficient reason to

deny the mandamus, deny indigency status, and assess costs against the relator.          State ex

rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842; State ex rel.

Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 176, 2000-Ohio-285, 724

N.E.2d 420; and Hazel v. Knab, 130 Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378 —

the defect may not be cured by subsequent filings.
       {¶6} Accordingly, this court grants the motion for summary judgment and denies

the application for a writ of mandamus.    Relator to pay costs.   This court directs the clerk

of courts to serve all parties notice of this judgment and its date of entry upon the journal as

required by Civ.R. 58(B).

       {¶7} Writ denied.



______________________________________
MARY J. BOYLE, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
