[Cite as State ex rel. Armengau v. French, 2017-Ohio-373.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


The State ex rel. Javier H. Armengau,                  :

                Relator,                               :              No. 16AP-357

v.                                                     :           (REGULAR CALENDAR)

Judge Jenifer A. French,                               :

                Respondent.                            :


                                             DECISION

                                    Rendered on January 31, 2017


                Javier H. Armengau, pro se.

                Ron O'Brien, Prosecuting Attorney, and Jason S. Wagner,
                for respondent.


                             IN MANDAMUS AND PROHIBITION
                           ON RESPONDENT'S MOTION TO DISMISS

BRUNNER, J.

        {¶ 1} Relator, Javier H. Armengau, filed this original action requesting a writ of
mandamus ordering respondent, the Honorable Jenifer A. French, judge of the Franklin
County Court of Common Pleas, to unseal his pleadings that she ordered sealed in his
underlying criminal case, and a writ of prohibition to prohibit Judge French from sealing
any future pleadings and records in his case. Judge French filed a motion to dismiss for
failure to state a claim on which relief can be granted, pursuant to Civ.R. 12(B)(6), arguing
that Armengau had an adequate remedy at law by way of appealing her order sealing the
documents.
16AP-357                                                                                  2


          {¶ 2} We referred this matter to a magistrate of this Court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending that
this Court grant Judge French's motion and dismiss Armengau's original action for the
reason that Armengau has an adequate remedy at law and thus cannot demonstrate
entitlement to either a writ of mandamus or prohibition. We agree.
I. FACTS AND PROCEDURAL BACKGROUND
          {¶ 3}   Armengau is an inmate incarcerated at Allen Oakwood Correctional
Institution, having been convicted of one count of public indecency, two counts of gross
sexual imposition, one count of rape with a sexually violent predator specification, one
count of kidnapping, and four counts of sexual battery.
          {¶ 4} According to Armengau's complaint, he served a public records request on
the Franklin County Prosecutor's Office and the Ohio Attorney General's Office requesting
e-mails and other documents pertaining to him and his prosecution. The prosecutor's
office complied with the request, in part, asserting that part of the request was overly
broad, and the attorney general's office denied the request. Armengau filed a motion in
the trial court, seeking a determination of his entitlement to receive the public records he
sought. The state filed a memorandum contra requesting that Armengau's pleadings be
sealed. Judge French, in her capacity as the trial court judge, issued an order sealing the
records.
          {¶ 5} On May 10, 2016, Armengau filed this original action, seeking writs of
mandamus and prohibition. On June 9, 2016, Judge French filed a motion to dismiss
pursuant to Civ.R. 12(B)(6), arguing that Armengau had an adequate remedy at law by
way of appealing her order sealing the documents. On June 24, 2016, Armengau filed a
memorandum contra.         On July 1, 2016, Judge French filed a reply to Armengau's
memorandum contra.
          {¶ 6} The magistrate, after examining the record and reviewing the relevant law,
issued a decision granting Judge French's motion and dismissing Armengau's original
action.
II. OBJECTION TO MAGISTRATE'S DECISION
          {¶ 7} On August 16, 2016, Armengau, acting pro se, filed objections to magistrate
decision rendered July 20, 2016. Having independently reviewed Armengau's objections,
16AP-357                                                                                      3


we agree with Judge French's argument that Armengau's objections to the magistrate's
decision are not specific and do not state with particularity the grounds for his objections
and thus fail to satisfy the requirements of Civ.R. 53(D)(3)(b)(ii).
III. LAW AND DISCUSSION
       {¶ 8} The magistrate's decision correctly states the proposition of law that "[a]
motion to dismiss for failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey
Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). 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." (App'x at ¶ 31.)
       {¶ 9} In order for a court to dismiss a complaint for failure to state a claim on
which relief can be granted, it must appear beyond doubt from the complaint that relator
can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants
Union, Inc., 42 Ohio St.2d 242 (1975). A complaint for writ of mandamus is not subject to
dismissal under Civ.R. 12(B)(6) if the complaint alleges the existence of a legal duty by the
respondent and the lack of an adequate remedy at law for relator with sufficient
particularity to put the respondent on notice of the substance of the claim being asserted
against it, and it appears that relator might prove some set of facts entitling him to relief.
State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94 (1995).
       {¶ 10} A writ of mandamus is an extraordinary judicial writ that will issue in this
case only if Armengau establishes that: (1) he has a clear legal right to the relief prayed
for; (2) Judge French is under a clear legal duty to perform the act requested; and (3) he
has no plain and adequate remedy in the ordinary course of law. State ex rel. Berger v.
McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 11} A writ of prohibition also is an extraordinary judicial writ, the purpose of
which is to restrain inferior courts and tribunals from exceeding their jurisdiction. State
ex rel. Jones v. Suster, 84 Ohio St.3d 70 (1998). A writ of prohibition is issued only in
cases of necessity arising from the inadequacy of other remedies. Id. In order to be
entitled to a writ of prohibition, Armengau must establish that: (1) Judge French is about
to exercise judicial or quasi-judicial powers; (2) the exercise of that power is unauthorized
by law; and (3) the denial of the writ will cause injury for which no other adequate remedy
16AP-357                                                                                   4


in the ordinary course of law exists. State ex rel. Henry v. McMonagle, 87 Ohio St.3d 543
(2000).
         {¶ 12} Armengau asks this Court to order Judge French to unseal the court records
in his criminal case and to prevent Judge French from sealing any future pleadings or
records in that case. Judge French argues in her motion to dismiss that Armengau is not
entitled to either writ because he has an adequate remedy at law by way of appealing her
order.
         {¶ 13} The magistrate found that Armengau has or had an adequate remedy at law
by way of appealing Judge French's denial of the motion to unseal the records and thus is
not entitled to the requested writ of mandamus.
         {¶ 14} Moreover, as the magistrate discusses, Judge French's decision to seal the
records in Armengau's underlying case is a discretionary act, and neither mandamus nor
prohibition can be used to control the trial court judge's actions.         The magistrate
concluded that "[j]ust as [Armengau] is not entitled to a writ of mandamus to compel
[Judge French] to unseal the documents, [Armengau] is likewise not entitled to a writ of
prohibition ordering [Judge French] to refrain from sealing any documents in the future."
(App'x at ¶ 41.)
         {¶ 15} Because Armengau has an adequate remedy at law by way of appeal, the
magistrate correctly found that Armengau cannot demonstrate entitlement to either a
writ of mandamus or a writ of prohibition, and, therefore, this Court should grant Judge
French's motion and dismiss Armengau's original action. Had Armengau appealed Judge
French's decision we would have been able to examine whether her decision to seal
records constituted an abuse of discretion. However, that is not a subject for inquiry on a
special writ. Moreover, had Armengau appealed and prevailed, this Court's decision
would have served to guide the trial judge in future decisions involving the sealing of court
records involving Armengau. But having presented his grievances to us in the actions he
did, we have no basis on which to grant Armengau relief. The magistrate's decision was
appropriate and correct, and we cannot sustain Armengau's objections to it.
IV. CONCLUSION
         {¶ 16} Finding no error of law or other defect on the face of the magistrate's
decision, this Court adopts the magistrate's decision as our own, including the findings of
fact and conclusions of law. In accordance with the magistrate's decision, we grant Judge
16AP-357                                                                               5


French's motion to dismiss for failure to state a claim, pursuant to Civ.R. 12(B)(6), and
dismiss Armengau's original action.
                                                         Motion to dismiss granted;
                    complaint for writ of mandamus and writ of prohibition dismissed.


                     KLATT and LUPER SCHUSTER, JJ., concur.
                               ______________
16AP-357                                                                                 6


                                        APPENDIX

                            IN THE COURT OF APPEALS OF OHIO

                               TENTH APPELLATE DISTRICT


The State ex rel. Javier H. Armengau,        :

              Relator,                       :

v.                                           :                    No. 16AP-357

Judge Jennifer A. French,                    :               (REGULAR CALENDAR)

              Respondent.                    :



                            MAGISTRATE'S DECISION

                                 Rendered on July 20, 2016



              Javier H. Armengau, pro se.

              Ron O'Brien, Prosecuting Attorney, and Jason S. Wagner,
              for respondent.


                           IN MANDAMUS AND PROHIBITION
                         ON RESPONDENT'S MOTION TO DISMISS

       {¶ 17} Relator, Javier H. Armengau, filed this original action requesting this court
issue a writ of mandamus ordering respondent, the Honorable Jennifer A. French, judge
of the Franklin County Court of Common Pleas, to unseal documents and pleadings she
ordered sealed in relator's criminal case, and a writ of prohibition to prevent respondent
from sealing any future documents.
Findings of Fact:
       {¶ 18} 1. Relator is an inmate currently incarcerated at Allen Oakwood
Correctional Institution.
16AP-357                                                                                     7


       {¶ 19} 2. On July 7, 2014, relator was convicted of one count of public indecency,
two counts of gross sexual imposition, one count of rape with a sexually violent predator
specification, one count of kidnapping, and four counts of sexual battery.
       {¶ 20} 3. According to his complaint, relator served a public records request on the
Franklin County Prosecutor's Office and the Ohio Attorney General's office requesting e-
mails and other documents pertaining to him and his prosecution.
       {¶ 21} 4. The Franklin County Prosecutor's Office complied with the request, in
part, asserting that part of the request was overly broad. The Attorney General's office
denied the request.
       {¶ 22} 5. According to his complaint, on March 2, 2016, relator filed a motion in
the trial court seeking a determination of his entitlement to the receive the public records
he sought from the offices of the Franklin County Prosecutor and Ohio Attorney General.
       {¶ 23} 6. On April 15, 2016, the state filed a memorandum contra requesting that
relator's pleadings be sealed.
       {¶ 24} 7. On April 22, 2016, the trial court issued an order sealing those records.
       {¶ 25} 8. Thereafter, relator filed the instant original action in this court seeking
writs of mandamus and prohibition on May 10, 2016.
       {¶ 26} 9. On June 9, 2016, respondent filed a motion to dismiss specifically
arguing that relator had an adequate remedy at law by way of appealing respondent's
order sealing the documents.
       {¶ 27} 10. On June 24, 2016, relator filed a memorandum contra in which he
spends a considerable amount of time rearguing the facts of his underlying criminal case
and explaining how he has been wrongfully convicted.
       {¶ 28} 11. On July 1, 2016, respondent filed a reply to relator's memorandum
contra.
       {¶ 29} 12. The matter is currently before the magistrate on respondent's motion to
dismiss.
Conclusions of Law:
       {¶ 30} For the reasons that follow, it is this magistrate's decision that this court
should grant respondent's motion and dismiss relator's original action.
16AP-357                                                                                    8


       {¶ 31} A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). 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.
       {¶ 32} In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted, it must appear beyond doubt from the complaint that relator
can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants
Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is not
subject to dismissal under Civ.R. 12(B)(6) if the complaint alleges the existence of a legal
duty by the respondent and the lack of an adequate remedy at law for relator with
sufficient particularity to put the respondent on notice of the substance of the claim being
asserted against it, and it appears that relator might prove some set of facts entitling him
to relief. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d
94 (1995). For the following reasons, respondent's motion should be granted and relator's
complaint should be dismissed.
       {¶ 33} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 34} A writ of prohibition is an extraordinary judicial writ, the purpose of which
is to restrain inferior courts and tribunals from exceeding their jurisdiction. State ex rel.
Tubbs Jones v. Suster, 84 Ohio St.3d 70 (1998). A writ of prohibition is customarily
granted with caution and restraint, and is issued only in cases of necessity arising from
the inadequacy of other remedies. Id. In order to be entitled to a writ of prohibition,
relator must establish that: (1) respondent is about to exercise judicial or quasi-judicial
powers; (2) the exercise of the power is unauthorized by law; and (3) the denial of the writ
will cause injury for which no other adequate remedy in the ordinary course of law exists.
State ex rel. Henry v. McMonagle, 87 Ohio St.3d 543 (2000).
16AP-357                                                                                  9


       {¶ 35} Relator asks this court to order respondent to unseal the court records in his
criminal case and to prevent respondent from sealing any records in the future. As
respondent argues in her motion to dismiss, relator has an adequate remedy at law by way
of appeal.
       {¶ 36} In State ex rel. Village of Richfield v. Laria, 138 Ohio St.3d 168, 2014-Ohio-
243, the trial court judge ordered that certain records be sealed. The Village of Richfield
("Richfield") filed a mandamus action asking the Supreme Court to compel the presiding
judge and the clerk of court to produce the records it maintained were public pursuant to
R.C. 149.43. Richfield argued that the court records had been improperly sealed.
       {¶ 37} The court refused to issue a writ of mandamus reasoning that Richfield had
an adequate remedy at law: it could have appealed the judge's denial of the motion to
unseal the records and, as such, Richfield could not prove that it was entitled to a writ of
mandamus.
       {¶ 38} Just as Richfield asserted that it had a legal right to the documents through
a public records request under R.C. 149.43, relator likewise makes the same argument.
However, the court in Richfield explained:
              A threshold issue is whether Richfield brought the case
              under the proper law. Richfield invokes R.C. 149.43, the
              Public Records Act, rather than Sup.R. 44 through 47, to
              obtain court records. We amended the Rules of
              Superintendence by adopting Rules 44 through 47, effective
              July 1, 2009. Sup.R. 99(KK). Sup.R. 44 through 47 deal
              specifically with the procedures regulating public access to
              court records and are the sole vehicle for obtaining such
              records in actions commenced after July 1, 2009. Sup.R.
              47(A)(1); see also State ex rel. Vindicator Printing Co. v.
              Wolff, 132 Ohio St.3d 481, 2012-Ohio-3328, 974 N.E.2d 89,
              ¶ 23. We deny the writ first because Richfield requested the
              records under the Public Records Act rather than the Rules
              of Superintendence.

Id. at ¶ 8.

       {¶ 39} The Richfield court went on to state that, even if the Richfield had requested
the documents under Sup.R. 44 through 47, it could not establish the lack of an adequate
remedy at law because it still could not establish the lack of an adequate remedy of law by
way of appeal.
16AP-357                                                                                   10


       {¶ 40} In the present case, relator likewise relies solely on R.C. 149.43 as the
authority giving him the legal right to the relief requested. However, just as the court in
Richfield explained, relator has an adequate remedy at law by way of appeal and, as such,
is not entitled to the requested writ of mandamus.
       {¶ 41} Likewise, the trial court's decision to seal the records in his underlying case
is a discretionary act and neither writ of mandamus nor writ of prohibition can be used to
control the trial court judge's actions. Just as relator is not entitled to a writ of mandamus
to compel respondent to unseal the documents, relator is likewise not entitled to a writ of
prohibition to order respondent to refrain from sealing any documents in the future.
       {¶ 42} Because relator has an adequate remedy at law by way of appeal, it is this
magistrate's decision that relator cannot demonstrate entitlement to either a writ of
mandamus or prohibition and, as such, this court should grant respondent's motion, and
dismiss relator's original action.


                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA




                               NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court's adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Civ.R.
              53(D)(3)(a)(ii), unless the party timely and specifically objects
              to that factual finding or legal conclusion as required by Civ.R.
              53(D)(3)(b).
