[Cite as State ex rel. Anderson v. Culotta, 2020-Ohio-1294.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO ex rel. HERBERT                             :    PER CURIAM OPINION
ANDERSON,
                                                          :
                 Relator,                                      CASE NO. 2020-L-004
                                                          :
        - vs -
                                                          :
VINCENT A. CULOTTA, JUDGE,
                                                          :
                 Respondent.
                                                          :


Original Action for Writ of Mandamus.

Judgment: Petition dismissed.


Herbert Anderson, pro se, PID: A572-384, Richland Correctional Institution, 1001
Olivesburg Road, P.O. Box 8107, Mansfield, OH 44905 (Relator).

Charles E. Coulson, Lake County Prosecutor, and Michael L. DeLeone, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Respondent).



PER CURIAM.

        {¶1}     This matter is before the court on a petition for writ of mandamus, filed by

relator, Herbert Anderson, against respondent, Hon. Vincent A. Culotta, seeking to

compel respondent to issue findings of fact and conclusions of law relating to a “Writ of

Error Coram Nobis” previously denied by respondent. Respondent has filed a motion to
dismiss for failure to state a claim upon which relief can be granted. For the reasons

discussed below, we dismiss the petition.

        {¶2}   In August 2009, relator entered into a written plea of guilty to one count of

attempted robbery, a felony of the fourth degree; and one count of receiving stolen

property, also a felony of the fourth degree. He was sentenced to a term of 18-months

imprisonment.

        {¶3}   Some 10 years later, relator filed a “Writ of Error Coram Nobis, Evidentiary

Hearing, and Appointment of Counsel.”         The trial court denied this pleading.     On

September 13, 2019, relator filed a “Motion for Definite Statement” and “Findings of

Facts and Conclusions of Law.” The trial court denied the motion on November 5,

2019.

        {¶4}   Meanwhile, on January 9, 2020, relator filed the instant petition asserting

he is entitled to relief in mandamus requiring respondent to issue findings of fact and

conclusions of law; respondent subsequently filed a motion to dismiss the petition

pursuant to Civ.R. 12(B)(6).

        {¶5}   A Civ.R. 12(B)(6) motion tests the sufficiency of the complaint, and

dismissal is appropriate where the complaint “fail[s] to state a claim upon which relief

can be granted.” In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the

court must presume that all factual allegations of the complaint are true and draw all

reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40

Ohio St.3d 190, 192 (1988). Before the court may dismiss the complaint, it must appear

beyond doubt that plaintiff can prove no set of facts entitling the plaintiff to

recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975),




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syllabus. In determining a motion pursuant to Civ.R. 12(B)(6), the court cannot rely on

evidence or allegations outside of the complaint. State ex rel. Fuqua v. Alexander, 79

Ohio St.3d 206, 207 (1997).

       {¶6}    To be entitled to a writ of mandamus, relator must establish a clear legal

right to relief, a corresponding clear legal duty for respondent to perform the requested

act, and relator must not have a plain and adequate remedy in the ordinary course of

the law. See, e.g., State ex rel. Fain v. Summit Cty. Adult Probation Dept., 71 Ohio

St.3d 658 (1995).

       {¶7}   Initially, respondent requests this court to take judicial notice of the trial

court docket appended to its motion to dismiss to avoid converting his Civ.R. 12(B)(6)

motion into a motion for summary judgment. We need not, however, take judicial notice

of the trial court’s docket because the relevant facts identified in the docket are

essentially alleged in relator’s petition; namely, that the trial court entered a final

judgment denying relator’s motion for findings of fact and conclusions of law on

November 5, 2019.

       {¶8}   Relator appears to claim that the trial court’s denial of his motion for

findings and conclusions was void because the failure to do so prevented meaningful

appellate review. He additionally maintains the trial court’s actions or omissions

deprived him of procedural due process because it was denied without an oral hearing.

Relator fails to cite any authority in support of his argument.

       {¶9}   Initially, with respect to his latter claim, we need not address relator’s

substantive legal argument because his challenge could be made via direct appeal of

the November 5, 2019 judgment. He therefore had an adequate remedy at law on this




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point.    In this respect, relator has failed to meet the essential requirements for

mandamus and respondent is entitled to dismissal, per Civ.R. 12(B)(6), on relator’s due

process allegation.

         {¶10} Next, a void judgment is generally one that has been imposed by a court

that lacks subject-matter jurisdiction over the case or the authority to act. State v.

Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶27. Unlike a void judgment, a voidable

judgment is one rendered by a court that has both jurisdiction and authority to act, but

the court’s judgment is invalid, irregular, or erroneous. Id. Here, relator fails to assert

and there is nothing to suggest the trial court lacked jurisdiction or authority to deny

relator’s motion for findings and conclusions. That judgment is not void, but voidable

and was therefore subject to ordinary appellate review.

         {¶11} “‘Mandamus cannot be used as a substitute for appeal * * *.’” State ex

rel. Daggett v. Gessaman, 34 Ohio St.2d 55, 57 (1973), quoting State ex rel. Overmeyer

v. Walinski, 8 Ohio St.2d 23, 24 (1966). Appellant had a plain and adequate remedy at

law and, if he failed to exercise the same, he waived his right to challenge the trial

court’s judgment. He may not use the instant petition to seek reversal of that order.

Relator has therefore failed to state a claim upon which relief in mandamus can be

granted. The petition must accordingly be dismissed.



CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., MARY JANE TRAPP, J.,
concur.




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