[Cite as State ex rel. Vance v. Kontos, 2014-Ohio-5080.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE ex rel., DAVID VANCE,                                :   PER CURIAM OPINION

                 Petitioner,                               :
                                                               CASE NO. 2014-T-0078
        - vs -                                             :

HON. PETER J. KONTOS, JUDGE,                               :

                 Respondent.                               :


Original Action for Writ of Mandamus.

Judgment: Petition dismissed.


Harry J. DePietro, The DePietro Law Office, L.L.C., 7 West Liberty Street, Girard, OH
44420 (For Petitioner).

Dennis Watkins, Trumbull County Prosecutor, and William J. Danso, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W, Warren, OH
44481-1092 (For Respondent).



PER CURIAM.

        {¶1}     This action in mandamus is presently before this court for consideration of

the motion to dismiss filed by respondent, Judge Peter J. Kontos of the Trumbull County

Court of Common Pleas. Respondent argues that the petition filed by relator, David

Vance, fails to state a claim on which relief can be granted because the petition fails to

satisfy any of the necessary elements for the issuance of a writ of mandamus. For the

following reasons, we hold that that the dismissal of this action is warranted.
      {¶2}   Relator alleges in his petition that he was named as a defendant in a

foreclosure action, Case No. 2012 CV 564, filed in the Trumbull County Court of

Common Pleas by Bank of America, N.A. (“BAC”), which is on respondent’s docket.

      {¶3}   Relator alleges that BAC recently settled a case filed by the Federal

Securities and Exchange Commission and a civil action filed by the United States

Department of Justice in unspecified cases filed in unspecified courts wherein, relator

alleges, BAC admitted defrauding investors by selling them securities that were

“backed” by mortgages, which were “predicated on fraudulent practices.”

      {¶4}   Relator alleges that, although he was the victim of such fraudulent

practices when he bought his home, BAC pursued said foreclosure action against him.

      {¶5}   Relator alleges that the fraud was reported in “news coverage” in August

2014, but that the parties in the foregoing federal cases have said little about said

settlements or admissions and that relator is thus unable to produce any evidence at

this time demonstrating BAC’s alleged admission of fraud.

      {¶6}   Relator alleges that respondent entered a foreclosure decree in favor of

BAC in said foreclosure case and that a writ of possession has issued.

      {¶7}   Based on BAC’s alleged fraud, relator seeks a writ of mandamus to

compel respondent to vacate all judgments and the writ of possession entered in the

foreclosure action and to dismiss said action.

      {¶8}   In general, “[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, 548 (1992). In

considering the propriety of the dismissal, “we accept all factual allegations in the




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complaint as true and draw all reasonable inferences in the non-moving party’s favor.”

Transky v. Ohio Civil Rights Comm’n., 193 Ohio App.3d 354, 2011-Ohio-1865, ¶11

(11th Dist.). If, after considering the complaint accordingly, there is no set of facts

consistent with the complaint that would permit recovery, the motion will be granted. Id.

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

to an inferior tribunal, * * * commanding the performance of an act which the law

specially enjoins as a duty resulting from an office * * *.” R.C. 2731.01. “[A] writ of

mandamus is generally employed as a means of requiring a public official to complete

an act which he is legally obligated to perform.” State ex rel. Dehler v. Kelly, 11th Dist.

Trumbull No. 2008-T-0062, 2009-Ohio-2534, ¶10.              To be entitled to a writ of

mandamus, the relator must be able to prove that: (1) he has a clear legal right to have

a specific act performed by a public official; (2) the public official has a clear legal duty

to perform that act; and (3) there is no legal remedy that could be pursued to adequately

resolve the matter. State ex rel. Appenzeller v. Mitrovich, 11th Dist. Lake No. 2007-L-

125, 2007-Ohio-6157, ¶5.

       {¶10} Based on our review of the petition, there is no set of facts consistent with

that pleading that would entitle relator to a writ of mandamus.

       {¶11} With respect to the first element of a writ of mandamus, relator does not

allege he has a clear legal right to the writ of mandamus he seeks.

       {¶12} Further, relator does not meet this first element because he does not

properly allege a claim for fraud against BAC. The elements of a cause of action for

fraud are as follows: (1) a representation; (2) which is material to the transaction; (3)

made falsely, with knowledge of its falsity, or with such recklessness as to its truth or




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falsity that knowledge may be inferred; (4) with the intent to mislead another into relying

on it; (5) justifiable reliance on the representation; and (6) an injury proximately caused

by the reliance. Burr v. Bd. of Cty. Commrs. Stark Cty., 23 Ohio St.3d 69 (1986),

paragraph two of the syllabus. Therefore, to avoid dismissal, the complaint must set

forth expressly or by inference the necessary elements of fraud. Zuber v. Dept. of Ins.,

34 Ohio App.3d 42, 45 (10th Dist.1986). Here, relator does not allege expressly or by

implication any of the required elements of fraud.

         {¶13} Further, Civ.R. 9(B) provides that when a claim is asserted that is based

on fraud, the circumstances constituting fraud must be stated with particularity. In order

to meet this obligation, the claim must include “‘[t]he “circumstances constituting fraud”

includ[ing] the time, place and content of the false representation; the fact represented;

the identification of the individual giving the false representation; and the nature of what

was obtained or given as a consequence of the fraud.’” Brown v. Sasak, 11th Dist.

Ashtabula No. 2009-A-0054, 2010-Ohio-2676, ¶16, quoting Aluminum Line Products

Co. v. Brad Smith Roofing Co., Inc., 109 Ohio App.3d 246, 259 (8th Dist.1996).

         {¶14} Here, relator makes vague allegations that BAC engaged in fraud in

selling securities to investors where the mortgages “backing” said securities were based

on fraudulent banking practices and that he was the victim of such fraudulent practices.

However, the petition does not allege any of the circumstances constituting the alleged

fraud.    Specifically, relator does not allege the time, place, or content of the false

representation; the fact represented; the identification of the individual making the false

representation; or the nature of what was obtained or given as a consequence of the

fraud.




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       {¶15} Thus, relator does not meet the first element of a writ of mandamus, i.e.,

that he has a clear legal right to a writ ordering that all judgments and the writ of

possession entered in his foreclosure action be vacated, because he does not allege he

has such right and the petition does not properly state a claim for fraud.

       {¶16} For the same reasons, relator does not satisfy the second element of a

writ of mandamus, i.e., that respondent has a clear legal duty to issue the writ relator

seeks. Specifically, relator does not allege in his petition that respondent has such duty

and the petition does not properly state a claim for fraud. Moreover, relator does not

reference any case law holding or even suggesting that in the circumstances presented

here, respondent has a clear legal duty to issue a writ of mandamus.

       {¶17} Next, relator does not fulfill the third element of a mandamus action

because he does not allege there is no adequate remedy at law. In fact, he has already

taken advantage of two legal remedies available to him by filing in the trial court a

motion for relief from judgment and a motion to stay execution on the writ of possession.

In his petition, relator alleges that he learned about the alleged fraud in August 2014.

Since he filed his motion for relief from judgment and his motion to stay execution of the

writ of possession in September 2014, it can fairly be presumed that he raised the issue

concerning BAC’s alleged fraud in support of these motions.

       {¶18} Pursuant to the foregoing analysis, this court concludes that, even when

the factual allegations in relator's petition are construed in a manner most favorable to

him, he will not be able to establish a set of facts under which he could satisfy any of the

three essential elements for issuance of a writ of mandamus. Accordingly, the dismissal

of this action is warranted under Civ.R. 12(B)(6).




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      {¶19} Respondent's motion to dismiss the instant matter is granted. It is the

order of this court that relator’s mandamus petition is hereby dismissed.




DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J.,
concur.




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