[Cite as State ex rel. Lehmann v. Kate, 2020-Ohio-499.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO, EX REL.                                   JUDGES:
 PAUL T. LEHMANN                                          Hon. William B. Hoffman, P.J.
                                                          Hon. Patricia A. Delaney, J.
         Relator                                          Hon. Earle E. Wise, Jr., J.

 -vs-
                                                          Case No. 2019 AP 12 0046
 LINDA A. KATE, JUDGE,
 COURT OF COMMON PLEAS
 TUSCARAWAS COUNTY, OHIO

          Respondent                                      O P I N IO N




 CHARACTER OF PROCEEDINGS:                                Writ of Mandamus


 JUDGMENT:                                                Denied

 DATE OF JUDGMENT ENTRY:                                  February 12, 2020


 APPEARANCES:


 For Relator                                              For Respondent

 PAUL T. LEHMANN                                          JUDGE LINDA A. KATE
 165 County Road 425                                      Court of Common Pleas
 Fayette, Missouri 65248                                  Tuscarawas County, Ohio
                                                          101 E. High Avenue
                                                          New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2019 AP 12 0046                                                2


Hoffman, P.J.
       {¶1}   On December 9, 2019, Relator, Paul T. Lehmann, filed a Verified Petition

for Writ of Mandamus against Respondent, Linda A. Kate, Judge of the Tuscarawas

County Court of Common Pleas. Mr. Lehmann asks the Court to compel Judge Kate to

issue an order directing her to enter a corrected judgment to conform with Civ.R. 58(B)

requirements. The issue presented in Mr. Lehmann’s writ is whether he was properly

served, under Civ.R. 58(B), with certain judgments thereby triggering the 30-day notice

of appeal period under App.R. 4(A)(1).

       {¶2}   Respondent, Judge Kate, did not file any responsive pleadings in this

matter. However, sua sponte dismissal of a mandamus action is warranted “‘when the

claim stated in the complaint is frivolous or the claimant obviously cannot prevail on the

facts alleged in the complaint.’ ” (Citations omitted.) State ex rel. Bunting v. Styer, 147

Ohio St.3d 462, 2016-Ohio-5781, 67 N.E.3d 755, ¶ 12.

                                      Factual background

       {¶3}   Mr. Lehmann is a resident of Howard County, Missouri and claims to be a

“statutory heir” and “plaintiff” in the Estate of Carole Kies, Tuscarawas County Case No.

2017 ES 59150. [Verified Petition, ¶ 1] Judge Kate served as the presiding judge in the

Kies estate. [Id.] According to Mr. Lehmann, Judge Kate closed the Kies estate, on August

19, 2019, with the following docket entries as indicated on the clerk of court’s docket:

       {¶4}   08/19/2019 JUDGMENT ENTRY – THE COURT HAVING MADE AN

INDEPENDENT ANALYSIS OF ISSUES AND APPLICABLE LAW AND NO FURTHER

OBJECTIONS HAVING BEEN TIMELY FILED TO MAGISTRATE’S DECISION OF

8/2/19, THE COURT APPROVES AND ADOPTS THE DECISION AND ORDERS IT

ENTERED AS A MATTER OF RECORD.
Tuscarawas County, Case No. 2019 AP 12 0046                                               3


       {¶5}   08/19/2019 ENTRY APPROVING FOURTH, FINAL & DISTRIBUTIVE

ACCOUNT

       {¶6}   08/19/2019 RECORD ORDERED

       {¶7}   08/19/2019 OBJECTIONS TO MAGISTRATE’S DECISION (8/2/19)

OVERRULING LEHMANN’S FILINGS

       {¶8}   [Id., ¶ 3.]

       {¶9}   After the probate court approved the fourth, final and distributive account

and closed the Kies Estate, Mr. Lehmann filed a “Motion to Correct Mistake in Judgment”

on November 4, 2019. In this motion, attached as Exhibit B to his Verified Petition for Writ

of Mandamus, Mr. Lehmann indicated he intends to challenge the probate court’s

decision closing the Kies Estate by way of an appeal, but claims he cannot do so until the

probate court incorporates Civ.R. 58(B) language in the document that closes the estate.

Thus, Mr. Lehmann asked the probate court to add Civ.R. 58(B) language so he could

pursue an appeal.

       {¶10} In the present matter, Mr. Lehmann admits the first and fourth docket entries

on August 19, 2019 are not at issue in his petition and only the second and third docket

entries are grounds for closing the Kies Estate. [Id., ¶ 4.] Mr. Lehmann alleges he was

not formally served with the second and third docket entries as required by Civ.R. 58(B)

and instead, learned about the closing of the Kies Estate from the Tuscarawas County

Clerk of Courts’ online docket. [Id., ¶ 5.] Mr. Lehmann maintains that under App.R.

4(A)(3), the 30-day period to file a notice of appeal begins to run on the date the clerk of

courts actually completes service under Civ.R. 58(B). [Id., ¶7] Therefore, he concludes

he cannot file a notice of appeal until the probate court enters a conforming judgment
Tuscarawas County, Case No. 2019 AP 12 0046                                             4


under Civ.R. 58(B) and the clerk of courts serves him with notice of the judgment. [Id.,

¶9(a),(b),(d)] Finally, Mr. Lehmann requests guidance from this Court regarding how to

proceed with his appeal. [Id., ¶ 8.]

                                  Writ of mandamus standard

       {¶11} For a writ of mandamus to issue, the relator must have a clear legal right to

the relief prayed for, the respondent must be under a clear legal duty to perform the

requested act, and relator must have no plain and adequate remedy in the ordinary course

of law. (Citations omitted.) State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29, 451

N.E.2d 225 (1983). “Mandamus is an extraordinary remedy ‘to be issued with great

caution and discretion and only when the way is clear.’ ” State ex rel. Taylor v. Glasser,

50 Ohio St.2d 165, 166, 364 N.E.2d 1 (1977), citing State ex rel. Kriss v. Richards, 102

Ohio St. 455, 457 132 N.E. 23 (1921), and State ex rel. Skinner Engine Co. v. Kouri, 136

Ohio St. 343, 25 N.E.2d 940 (1940), paragraph one of the syllabus.

                                        Legal analysis

       {¶12} Subsequent to the filing of Mr. Lehmann’s writ, on December 19, 2019,

Judge Kate issued two Nunc Pro Tunc Judgment Entries. The first “Final Nunc Pro Tunc

Entry” approves the final accounts filed by the fiduciaries of the Estates, Guardianships,

and Trusts. It contains Civ.R. 58(B) language and specifically orders the clerk to serve

Paul Lehmann with a copy of the entry. The second “Judgment Entry Nunc Pro Tunc:

Endorsement of Direction to Clerk as to Service Added” approves and adopts the

Decision and Orders of the Magistrate’s Decision issued on August 2, 2019. In this same

entry, Judge Kate also denied Mr. Lehmann’s Motion and Amended Motion for Summary

Judgment; denied Mr. Lehmann’s objections to the final account; and denied Mr.
Tuscarawas County, Case No. 2019 AP 12 0046                                           5


Lehmann’s Complaint for Concealment on the basis that it has no merit. Judge Kate also

noted the Judgment Entry acknowledges and confirms the judgment already entered on

August 19, 2019. This second Nunc Pro Tunc Judgment Entry also included Civ.R. 58(B)

language requiring service on Mr. Lehmann.

      {¶13} Finally, the clerk’s docket demonstrates the clerk served Mr. Lehmann with

copies of the two December 19, 2019 Nunc Pro Tunc Judgment Entries by ordinary U.S.

mail. Therefore, under Civ.R. 58(B), Mr. Lehmann has been properly served with the

Nunc Pro Tunc Entry approving the fourth, final distributive account, as well as Judge

Kate’s Judgment Entry addressing his pending motions/complaint. The third docket entry

stating, “RECORD ORDERED” contains no documents that require service to any of the

parties, including Mr. Lehmann.

      {¶14} Having properly served Mr. Lehmann under Civ.R. 58(B), we find the relief

he requests in his writ is now moot and we deny the Writ of Mandamus. See State ex rel.

Kirk v. Burcham, 82 Ohio St.3d 407, 408, 696 N.E.2d 582 (1998), citing State ex rel.

Jerninghan v. Cuyahoga Court of Common Pleas, 74 Ohio St.3d 278, 279, 658 N.E.2d

723 (1996). “A writ of mandamus will not issue to compel an act already performed.”
Tuscarawas County, Case No. 2019 AP 12 0046                                              6


      {¶15} The clerk of courts is hereby directed to serve upon all parties not in default

notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).

      {¶16} WRIT DENIED.

      {¶17} COSTS TO RELATOR.

      {¶18} IT IS SO ORDERED.




By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur
