[Cite as Deutsche Bank Natl. v. Austermiller, 2011-Ohio-444.]


                                       COURT OF APPEALS
                                      KNOX COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


DEUTSCHE BANK NATIONAL                                   :      JUDGES:
                                                         :
           Respondent                                    :      Hon. Julie A. Edwards, P.J.
                                                         :      Hon. John W. Wise, J.
-vs-                                                     :      Hon. Patricia A. Delaney J.
                                                         :
WILLIAM AUSTERMILLER                                     :
                                                         :      CASE NO. 10-CA-15
           Relator                                       :
                                                         :      OPINION




CHARACTER OF PROCEEDING:                                 Petition for Writ of Mandamus


JUDGMENT:                                                WRIT DENIED



DATE OF JUDGMENT ENTRY:                                  January 20, 2011



APPEARANCES:


For Relator – Pro se:                                    For Knox County Treasurer:

William Austermiller                                     John C. Thatcher
61 Marion Street                                         Knox County Prosecuting Attorney
Mount Vernon, Ohio 43050                                 117 E. High Street, Suite 234
                                                         Mount Vernon, Ohio 43050
Knox County, Case No. 10-CA-15


Delaney, J.,

        {¶1} Petitioner, William Austermiller, has filed a “Writ of Mandamus” which

appears to be a complaint requesting this Court to issue a writ of mandamus requiring

the trial court to hold a jury trial in a foreclosure case filed in the Knox County Court of

Common Pleas. Further, Petitioner requests the trial court judge be ordered to recuse

himself from the foreclosure case.

        {¶2} Petitioner is the defendant in a foreclosure action brought in the Knox

County Court of Common Please by Deutsche Bank National Trust Company. The trial

court granted summary judgment in favor of Deutsche Bank. Petitioner is dissatisfied

with the judgment rendered against him and has filed the instant action as a result.

The Knox County Prosecutor has filed a Motion to Dismiss the complaint on the basis

Relator has an adequate remedy at law.

        {¶3} Prior to reaching the merits of the Petition or motion to dismiss, we find

Petitioner has not properly brought this action. R.C. 2731.04 provides, “Application for

the writ of mandamus must be by petition, in the name of the state on the relation of

the person applying, and verified by affidavit.” Failure to comply with these

requirements is grounds for dismissal. Thorne v. State, 8th Dist., 2004-Ohio-6288;

Maloney v. Court of Common Pleas of Allen County (1962), 173 Ohio St. 226, 181

N.E.2d 270. Petitioner herein has not properly brought this complaint. Blankenship v.

Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382; Perotti v. Mahoning

County Clerk, 7th Dist. No. 05-MA-202, 2006-Ohio-673. See also, Selway v. Court of

Common Pleas Stark County, 2007 WL 2482621, *1 (Ohio App. 5 Dist.).
Knox County, Case No. 10-CA-15


        {¶4} Petitioner has not named any party other than Deutsche Bank in the

complaint. Although he seeks to have the trial court judge removed from the case, he

has failed to name the trial court judge as a party to this action. Further, Petitioner has

not brought this action in the name of the state as required by R.C. 2731.04. Nor has

Petitioner included an affidavit in support of his complaint in compliance with this

statute.

       {¶5} We find Petitioner’s failure to comply with R.C. 2731.04 warrants dismissal

of the petition.

       {¶6} Even if we had considered the merits of the complaint, we would not find the

issuance of a writ of mandamus would be warranted.

       {¶7} For a writ of mandamus to issue, Austermiller must establish (1) a clear

legal right to the relief prayed for, (2) the respondents are under a clear legal duty to

perform the requested act, and           (3) Austermiller must have no plain and adequate

remedy in the ordinary course of law. State, ex rel. Berger, v. McMonagle (1983), 6

Ohio St.3d 28, 6 OBR 50, 451 N.E.2d 225.

           {¶8} In his first claim, Petitioner argues he was deprived of his right to a jury trial.

           {¶9} We would find the claim lacks merit. The Petitioner did not have a jury trial

in the underlying case because the trial court granted summary judgment in favor the

plaintiff. In State Farm Mutual Auto Insurance Co. v. Loken, Fairfield App. No. 04CA40,

2004-Ohio-5074, this court found it has long been the law that a summary judgment

does not infringe upon a party's right to a jury trial. Loken at paragraph 27, citing Fidelity

& Deposit Company v. United States (1902),187 U.S. 315, 23 S.Ct. 120, 47 L.Ed. 194.

See also Tschantz v. Ferguson (1994), 97 Ohio App.3d 693, 713, 647 N.E.2d 507.
Knox County, Case No. 10-CA-15



      {¶10} Petitioner’s second claim, which is that the trial court judge should be Ordered

to recuse himself because the judge has the same last name as one of the lawyers for

Deutsche Bank, would also be denied.

      {¶11} The Supreme Court has held a litigant has an adequate remedy of law by way of

filing an affidavit of disqualification to challenge any prejudice on the part of a common pleas

court judge, State ex rel. Hach v.Summit Cty. Court of Common Pleas (2004), 102 Ohio

St.3d 75, 806 N.E.2d 554.

      {¶12} For these reasons, we decline to issue a writ of mandamus and Dismiss the

Instant cause of action for failure to abide by the requisite procedural Requirements for filing

a writ of mandamus.

      {¶13} CAUSE DISMISSED.

      {¶14} COSTS TO PETITIONER.

      {¶15} IT IS SO ORDERED.




By: Delaney, J.
Edwards, P.J. and
Wise, J. concur

                                                    _____________________________
                                                    HON. PATRICIA A. DELANEY


                                                    _____________________________
                                                    HON. JULIE A. EDWARDS


                                                    _____________________________
                                                    HON. JOHN W. WISE
[Cite as Deutsche Bank Natl. v. Austermiller, 2011-Ohio-444.]


                                         COURT OF APPEALS
                                        KNOX COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


DEUTSCHE BANK NATIONAL                                :
                                                      :         CASE NO. 10-CA-15
                                                      :
        Respondent                                    :
                                                      :
-vs-                                                  :         JUDGMENT ENTRY
                                                      :
WILLIAM AUSTERMILLER                                  :
                                                      :
        Relator                                       :



        For the reasons stated in the Memorandum-Opinion on file, Petitioner/Relator’s

Petition for Writ of Mandamus is hereby denied. Costs taxes to Petitioner/Relator.




                                                                _____________________________
                                                                HON. PATRICIA A. DELANEY


                                                                _____________________________
                                                                HON. JULIE A. EDWARDS


                                                                _____________________________
                                                                HON. JOHN W. WISE
