[Cite as State ex rel. Kess v. Antonoplos, 2017-Ohio-305.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                                JUDGES:
STATE OF OHIO, EX REL. JAMES                           :       Hon. W. Scott Gwin, P.J.
C. KESS                                                :       Hon. William B. Hoffman, J.
                                                       :       Hon. John W. Wise, J.
    Relator                                            :
                                                       :
-vs-                                                   :       Case No. 16CAD030010
                                                       :
JAN ANTONOPLOS, DELAWARE                               :
COUNTY CLERK OF COURTS,                                :       OPINION
ET AL

            Respondent




CHARACTER OF PROCEEDING:                                        Writ of Mandamus



JUDGMENT:                                                       Writ Issued



DATE OF JUDGMENT ENTRY:                                         January 26, 2017




APPEARANCES:

For Relator                                                For Respondent

NICHOLAS W. YAEGER                                         CAROL HAMILTON O'BRIEN
580 South High Street, Ste. 200                            ANDREW J. KING
Columbus, OH 43215                                         140 North Sandusky Street, 3rd Floor
                                                           Delaware, OH 43015
Delaware County, Case No.16CAD030010                                                       2

Gwin, P.J.

      {¶1}    Relator, James Kess, has filed a Complaint for Writ of Mandamus

requesting this Court to issue a writ ordering Respondent to accept and file objections to

a magistrate’s decision. Respondent has filed a Motion for Judgment on the Pleadings

arguing the objections presented were untimely, therefore, Relator cannot establish a

clear legal right to have the pleading filed.

                                                FACTS

      {¶2}    The only evidence presented in this case is an affidavit from Jon Krukowski

of Krukowski Legal Services.         Krukowski states that on September 22, 2015, he

presented a pleading captioned “Plaintiff, James Kess’ Objections to the Magistrate’s

Decision filed August 27. 2015” to the Delaware clerk of courts for filing. The clerk refused

to accept the pleading for filing.

                               JUDGMENT ON THE PLEADINGS

      {¶3}    “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, 34 Ohio

St.2d 161, 166, 297 N.E.2d 113 (1973). Pursuant to Civ.R. 12(C), dismissal 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, 75 Ohio St.3d

565, 570, 664 N.E.2d 931 (1996).” Dumas v. Carfolo, 7th Dist. Mahoning No. 15 MA

0065, 2016-Ohio-4820, ¶ 5.
Delaware County, Case No.16CAD030010                                                         3


      {¶4}    We have reviewed the pleadings and find the allegations contained within

them when considered in the light most favorable to Relator would support Relator’s

claim, therefore, the motion for judgment on the pleadings is denied.

                                            MANDAMUS

      {¶5}    We now turn to the merits of the Petition.

      {¶6}    “To be entitled to a writ of mandamus, the [Relator] must establish by clear

and convincing evidence a clear legal right to the requested relief and a clear legal duty

on the part of respondent to provide the relief. “ State ex rel. Cincinnati Enquirer v. Ohio

Dept. of Pub. Safety, 2016-Ohio-7987, ¶ 28.

      {¶7}    The Supreme Court explained a clerk’s duty, “It is the duty of the clerk of

this court, in the absence of instructions from the court to the contrary, to accept for filing

any paper presented to him, provided such paper is not scurrilous or obscene, is properly

prepared and is accompanied by the requisite filing fee. The power to make any decision

as to the propriety of any paper submitted or as to the right of a person to file such paper

is vested in the court, not the clerk.” State ex rel. Wanamaker v. Miller (1955), 164 Ohio

St. 176, 177, 57 O.O. 152, 128 N.E.2d 110; State ex rel. Montgomery Cty. Pub. Def. v.

Siroki, 108 Ohio St.3d 334, 336–37, 2006-Ohio-1065, 843 N.E.2d 778, 781, ¶ 12 (2006).

      {¶8}    “[T]he Tenth Appellate District has stated that “ordinarily the clerk cannot

refuse to accept papers for filing if the determination of propriety of filing constitutes a

question of law since only a court can determine the rights of a party.” The court went on

to state that if a party presents a paper for filing and the clerk refuses to accept it, the

clerk should indicate the refusal and the reason for the refusal on the docket. Huntington

Natl. Bank v. Miller (1987), 36 Ohio App.3d 208, 209, 521 N.E.2d 844, 845; Ricart N., Inc.
Delaware County, Case No.16CAD030010                                                        4

v. B.W. Towing, Inc. (May 25, 1999), Franklin App. No. 98AP-926, unreported, 1999 WL

333317.” Rhoades v. Harris, 135 Ohio App.3d 555, 558, 735 N.E.2d 6, 8 (1st Dist.1999).

        {¶9}    Respondent has raised two defenses to the complaint. First, Respondent

argues the objections were untimely, therefore, the clerk had no clear legal duty to accept

them for filing. Second, Respondent argues Relator has not demonstrated by clear and

convincing evidence that the clerk refused to accept the pleading in question.

        {¶10}   The Clerk’s duty is not to determine whether a pleading is properly before

the court. This duty belongs to the court. The Clerk is the keeper of the records presented

for filing not the gatekeeper making decisions upon the propriety of the pleadings

presented.

        {¶11}   Whether the objections were untimely is a matter for the Court to consider

not the clerk. The only evidence presented to this Court is the uncontroverted affidavit

from Krukowski stating he attempted to file the pleading, but the clerk refused to accept

it.

        {¶12}   Respondent has a clear legal duty to accept papers presented for filing in

the court. Relator has a corresponding right to have those papers filed. No adequate

remedy at law exists for Relator to challenge the clerk’s refusal to accept the pleading.

        {¶13}   For these reasons, we find Relator has established the necessary elements

for the issuance of a writ of mandamus. The Clerk is hereby ordered to accept Relator’s

objection and note the docket that the pleading shall be deemed filed on September 22,

2015.
Delaware County, Case No.16CAD030010                                        5


      {¶14} For the reasons stated in our accompanying Memorandum-Opinion, the

Writ of Mandamus is issued.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur
[Cite as State ex rel. Kess v. Antonoplos, 2017-Ohio-305.]
