[Cite as State ex. rel Brown v. Krichbaum, 2011-Ohio-2002.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE ex rel.                                     )           CASE NO. 11 MA 44
JAMES EDWARD BROWN                                )
                                                  )
        RELATOR                                   )
                                                  )
VS.                                               )           OPINION AND
                                                  )           JUDGMENT ENTRY
JUDGE R. SCOTT KRICHBAUM                          )
                                                  )
        RESPONDENT                                )

CHARACTER OF PROCEEDINGS:                                     Petition for Mandamus.

JUDGMENT:                                                     Petition Dismissed.

APPEARANCES:

For Relator:                                                  James Edward Brown, Pro se
                                                              #153-044
                                                              Chillicothe Correctional Institution
                                                              15802 State Route 104 North
                                                              P.O. Box 5500
                                                              Chillicothe, Ohio 45601


For Respondent:                                               Atty. Paul J. Gains
                                                              Mahoning County Prosecutor
                                                              Atty. Ralph M. Rivera
                                                              Assistant Prosecuting Attorney
                                                              21 West Boardman Street, 6th Floor
                                                              Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                              Dated: April 22, 2011
[Cite as State ex. rel Brown v. Krichbaum, 2011-Ohio-2002.]
PER CURIAM.


        {1}     Relator James Edward Brown has filed a petition for writ of mandamus

in order to challenge his conviction and sentence in an unspecified case originating in

the Mahoning County Court of Common Pleas.                    Relator alleges that he was

mistakenly identified as the perpetrator of the crimes when, in fact, it was a different

man named “James Brown” who was the actual culprit.                The state has filed an

answer and a Civ.R. 12(C) motion for judgment on the pleadings. In addition to

containing a number of procedural defects, the mandamus petition fails to state a

cause of action for which relief in mandamus may be rendered. For these reasons,

and those that follow, we hereby dismiss Relator’s petition.

        {2}     A writ of mandamus is defined as, “a writ, issued in the name of the

state to an inferior tribunal, a corporation, board, or person, commanding the

performance of an act which the law specially enjoins as a duty resulting from an

office, trust, or station.” R.C. 2731.01. A writ of mandamus may be granted if the

court finds that the relator: (1) has a clear legal right to the relief requested; (2)

respondent is under a clear legal duty to perform the requested act; and (3) that

relator has no plain and adequate remedy at law. State ex rel. Rogers v. Taft (1992),

64 Ohio St.3d 193, 594 N.E.2d 576; State ex rel. Hodges v. Taft (1992), 64 Ohio

St.3d 1, 3, 591 N.E.2d 1186.

        {3}     A writ of mandamus is an extraordinary remedy issued “only in cases of

extreme necessity, because of the absence or inadequacy of other remedies * * *.”

State ex rel. Utility Workers Union of America, AFL-CIO Local 349 v. Macelwane

(1961), 116 Ohio App. 183, 191, 187 N.E.2d 901. A relator who seeks such a writ
                                                                                       -2-

has the burden to establish a right to mandamus. State ex rel. Fant v. Sykes (1986),

28 Ohio St.3d 90, 91, 28 OBR 185, 502 N.E.2d 597.

       {4}      Mandamus is not a substitute for appeal.       State ex rel. Daggett v.

Gessaman (1973), 34 Ohio St.2d 55, 57, 63 O.O.2d 88, 295 N.E.2d 659. Thus,

mandamus does not lie to correct errors and procedural irregularities that may occur

during the course of a case. State ex rel. Jerninghan v. Gaughan (Sept. 26, 1994),

8th Dist. No. 67787.       Further, if the relator had an adequate remedy at law,

regardless whether that remedy was sought, relief in mandamus is precluded. State

ex rel. Tran v. McGrath (1997), 78 Ohio St.3d 45, 676 N.E.2d 108. The right to a

direct appeal is an adequate remedy at law. State ex rel. Dix v. McAllister (1998), 81

Ohio St.3d 107, 108, 689 N.E.2d 561.

       {5}      We must initially point out that Relator's petition fails because it does

not meet the statutory requirements for a writ of mandamus as set forth in R.C.

2731.04. This statute requires that the petition must be filed in the name of the state

and not in the name of the party requesting relief. Blankenship v. Blackwell, 103

Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382; Maloney v. Court of Common

Pleas of Allen Cty. (1962), 173 Ohio St. 226, 227, 19 O.O.2d 45, 181 N.E.2d 270.

Relator’s petition is not filed in the name of the state. R.C. 2731.04 also requires that

the allegations in the petition must be verified by affidavit. Relator failed to file such

an affidavit.    Procedural failures in filing the petition are sufficient grounds for

dismissal. Griffin v. State of Ohio, 7th Dist., No. 03 MA 221, 2004-Ohio-4993.
                                                                                       -3-

       {6}    R.C. 2969.25(C)(1) requires an inmate who attempts to commence a

civil action against a government entity or employee to provide a certified statement

of the balance in his inmate account for each of the preceding six months, and a

statement setting forth other cash and valuables owned by the inmate. An inmate’s

filing of a petition for writ of mandamus is subject to dismissal for failure to adhere to

this statutory requirement. State ex rel. Buoscio v. Cronin, 7th Dist. No. 05-MA-17,

2006-Ohio-5266, ¶9.

       {7}    Respondent has filed a motion for judgment on the pleadings, citing the

procedural defects listed above.       A Civ.R. 12(C) motion for judgment on the

pleadings is designed to review the pleadings, and only the pleadings, on matters of

law.   Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 166, 297 N.E.2d 113.

Dismissal under Civ.R. 12(C) is appropriate, “where a court (1) construes the material

allegations in the complaint, with all reasonable inferences to be drawn therefrom, in

favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff

could prove no set of facts in support of his claim that would entitle him to relief.”

State ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570, 664

N.E.2d 931.     It is obvious that these pleadings do not meet the procedural

requirements for filing a petition for writ of mandamus, and we hereby sustain

Respondent’s motion.

       {8}    Respondent has also asserted that the petition for writ of mandamus

fails to state a justiciable claim for relief. A Civ.R. 12(B)(6) motion seeking dismissal

for failure to state a claim is a procedural motion to test the sufficiency of the
                                                                                      -4-

complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio

St.3d 545, 548, 605 N.E.2d 378. In reviewing the complaint, the court must take all

the material allegations as admitted and construe all reasonable inferences in favor

of the nonmoving party. Id. “ ‘A complaint in mandamus states a claim if it alleges

the existence of the legal duty and the want of an adequate remedy at law with

sufficient particularity so that the respondent is given reasonable notice of the claim

asserted.’ ” Id., quoting State ex rel. Alford v. Willoughby (1979), 58 Ohio St.2d 221,

224, 12 O.O.3d 229, 390 N.E.2d 782.

       {9}    A court will dismiss a complaint for failure to state a claim upon which

relief can be granted if it appears beyond doubt from the complaint that the relator

can prove no set of facts entitling him to recovery. O'Brien v. University Community

Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753.

       {10}   Relator has not alleged any legal right to relief, any duty imposed on

any person or tribunal that must legally be performed, or even what specific error

allegedly occurred in the vaguely referenced Mahoning County criminal proceeding.

As far as we can tell, Appellant claims to be caught in a case of mistaken identity

because he has a very common name, i.e., James Brown. If there had been an

issue regarding the proper identity of the defendant in a criminal matter involving the

Relator, this could easily have been dealt with at the trial level or in direct appeal of

the conviction and sentence in the criminal case. Mistaken identity is often dealt with

in the direct appeal of criminal convictions. See, e.g., State v. Monford, 190 Ohio

App.3d 35, 2010-Ohio-4732, 940 N.E.2d 634; State v. Baker (1996), 111 Ohio
                                                                                 -5-

App.3d 313, 676 N.E.2d 143. We cannot conceive of any valid mandamus relief that

might arise from Relator’s petition. Therefore, we also grant Respondent’s Civ.R.

12(B)(6) motion to dismiss for failure to state a justiciable cause of action.

       {11}   For the foregoing reasons, we dismiss this petition for writ of

mandamus.

       {12}   Costs taxed against Relator. Final order. Clerk to serve notice as

provided by the Civil Rules.

Waite, P.J., concurs.

Donofrio, J., concurs.

DeGenaro, J., concurs.
