[Cite as State ex rel. Brown v. Nusbaum , 2017-Ohio-797.]




                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ROSS COUNTY

State of Ohio, ex rel.          :
Steven S. Brown,                :
                                :
      Relator,                  :     Case No. 16CA3572
                                :
      v.                        :
                                :
Judge Nusbaum,                  :     DECISION AND JUDGMENT ENTRY
                                :
      Respondent.               :
                                :     RELEASED: 3/06/2017
                                :
______________________________________________________________________

                                            APPEARANCES:

Steven S. Brown, Leavittsburg, Ohio, pro se Relator

James L. Mann and Mark A. Preston, Mann & Preston LLP, Chillicothe, Ohio for
Respondent
______________________________________________________________________

HARSHA, A.J.,

        {¶1}    Relator Steven S. Brown filed a petition for writ of mandamus to compel

Respondent Judge Nusbaum to issue a final order in a proceeding in which Brown filed

an affidavit charging criminal offenses under R.C. 2935.09 and R.C. 2935.10. However,

Brown is not entitled to a writ of mandamus ordering the trial court to enter a final

appealable order. The trial court performed its statutory duties when it issued an entry

referring the matter to the prosecuting attorney for investigation. We GRANT

Respondents motion and DISMISS Brown’s petition.

                                                  I. FACTS

        {¶2}    Under the authority of R.C. 2935.09 and R.C. 2935.10, Brown filed an

affidavit seeking the arrest of a number persons employed by the Ohio Department of
Ross App. No. 16CA3572                                                                      2
Corrections, the Ohio Attorney General and Aramark Correctional Services. See Brown

v. Mohr, et al., Ross County C.P. No. 14CI0390, (Sept. 4, 2014). The trial court issued a

decision and judgment entry that addressed Brown’s affidavit and several subsequent

motions. In the entry the trial court referred the matter to the prosecuting attorney for

investigation. Subsequently, Brown filed a motion asking the trial court to issue a final

order dismissing the procedure. Brown contends that the trial court denied his motion at

the September 2016 hearing. Brown filed a subsequent unsuccessful motion for

reconsideration.

       {¶3}   Then Brown filed a petition for a writ of mandamus against the Honorable

Scott W. Nusbaum, the trial court judge, requesting a writ ordering Judge Nusbaum to

issue a final order in the statutory proceeding. Brown claims that after Judge Nusbaum

referred the matter to the prosecutor, the prosecutor obtained copies of Brown’s

documents that proved all of his claims. Brown claims the prosecutor’s steps were

inadequate and did not constitute an investigation. Brown contends that at a hearing

held in September 2016, he asked Judge Nusbaum to issue a final order so that Brown

could file an appeal of his R.C. 2935.10 proceeding, but Judge Nusbaum denied the

request.

       {¶4}   Judge Nusbaum filed a motion to dismiss the mandamus petition. He

claims that he fulfilled his statutory duties under R.C. 2935.10 when he issued his

January 2015 entry referring the matter to the prosecutor for investigation. Judge

Nusbaum contends he has no legal duty to issue a final order dismissing the case. He

also argues that Brown has no right to appeal the trial court’s decision referring the

matter to the prosecutor and that Brown has an alternative remedy for pursuing his

grievances with the prosecutor and has exercised this remedy when he filed his
Ross App. No. 16CA3572                                                                       3
complaint to remove the prosecutor for neglect and misconduct in Brown v. Schmidt,

Ross Co. C.P. No. 15CI446 filed Oct. 5, 2015.

         {¶5}   Brown filed a response arguing that he can appeal the prosecutor’s refusal

to prosecute a complaint when the failure to do so is an abuse of discretion. He also

argues that the trial court has a duty to review the prosecutor’s decision that his affidavit

lacked merit and the appellate court, in turn, reviews the trial court’s decision under an

abuse of discretion standard. He contends that without a final order dismissing the

proceeding, he cannot appeal the prosecutor’s determination that his affidavit lacks

merit.

                                II. Civ.R. 12(B)(6) Requirements

         {¶6}   “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, 605 N.E.2d 378 (1992); see

also State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931

N.E.2d 110, ¶ 6 (A court can dismiss a mandamus action under Civ.R .12(B)(6)). A

court may not grant a motion to dismiss for failure to state a claim upon which relief may

be granted unless it appears “beyond doubt from the complaint that the plaintiff can

prove no set of facts entitling him to recovery.” O'Brien v. Univ. Community Tenants

Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus; see also Taylor v.

London, 88 Ohio St.3d 137, 139, 723 N.E.2d 1089 (2000). Furthermore, when

considering a Civ.R. 12(B)(6) motion the trial court must review only the complaint,

accepting all factual allegations as true and making every reasonable inference in favor

of the nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532

N.E.2d 753 (1988); Estate of Sherman v. Millhon, 104 Ohio App.3d 614, 617, 662
Ross App. No. 16CA3572                                                                         4
N.E.2d 1098 (10th Dist.1995); see also JNS Ents., Inc. v. Sturgell, 4th Dist. Ross No.

05CA2814, 2005–Ohio–3200, ¶ 8. The court, however, need not presume the truth of

legal conclusions that are unsupported by factual allegations. McGlone v. Grimshaw, 86

Ohio App.3d 279, 285, 620 N.E.2d 935 (4th Dist.1993), citing Mitchell at 193, 532

N.E.2d 753.

                               III. Petition for Writ of Mandamus

       {¶7}   Mandamus actions are governed by Ohio Revised Code Chapter 2731. A

mandamus is a writ to enforce performance of a specific act by a public official or

agency and will only be issued where there is a clear legal duty to act. A writ of

mandamus is not available when there is a plain and adequate remedy in the ordinary

course of law. See R.C. 2731.05. To be entitled a writ of mandamus the relator must

show that: (1) the relator has a clear legal right to the relief prayed for; (2) respondents

are under a clear legal duty to perform the acts; and (3) relator has no plain and

adequate remedy in the ordinary course of law. See State ex rel. Boardwalk Shopping

Ctr., Inc. v. Ct. Apps. for Cuyahoga Cty., 56 Ohio St.3d 33, 34, 564 N.E.2d 86, 87

(1990); State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641 (1978).

Moreover, a petitioner must prove entitlement to the writ by clear and convincing

evidence. State ex rel. Cain v. Gee, 147 Ohio St.3d 477, 2016-Ohio-7653, 67 N.E.3d

768, ¶ 3.

       {¶8}   A mandamus petition can be used to compel a judge to issue an entry that

constitutes a final appealable order. State ex rel. Carnail v. McCormick, 126 Ohio St.3d

124, 2010-Ohio-2671, 931 N.E.2d 110, ¶¶ 32-33.

       Although procedendo is the more appropriate remedy, “mandamus will lie
       when a trial court has refused to render, or unduly delayed rendering, a
       judgment.” * * *
Ross App. No. 16CA3572                                                                         5
       We have consistently held that “ ‘[i]f the trial court refuses upon request or
       motion to journalize its decision, either party may compel the court to act
       by filing a writ of mandamus or a writ of procedendo’ ” because ‘[a]bsent
       journalization of the judgment, [a party] cannot appeal it.”

Id.

       {¶9}    Brown seeks a writ of mandamus that “respectfully asks that this court

order a final order or order Judge Neusbaum [sic] to do it and charge costs to him.”

Brown contends that both Crim.R. 3 and Civ.R. 58 impose a duty on the trial court to

issue a final dismissal order. However, the civil or criminal rules of procedure are not

applicable to proceedings under R.C. 2935.10. State ex rel. Boylen v. Harmon, 107

Ohio St.3d 370, 2006-Ohio-7, 839 N.E.2d 934 (In mandamus action where relator

sought to compel prosecutor to pursue criminal action, court held that the R.C. 2935.10

proceedings are governed by that statute; criminal rules of procedure apply only after

the prosecutor files a valid criminal complaint). Thus, neither Crim.R. 3 nor Civ.R. 58

impose a duty on Judge Nusbaum to issue a final dismissal entry in the underlying R.C.

2935.10 proceeding.

       {¶10} R.C. 2935.10 “affords the reviewing official only two options: 1) issue a

warrant or 2) refer the matter to the prosecutor for investigation if there is a belief that

the affidavit lacks a meritorious claim.” State ex rel. Brown v. Jeffries, 4th Dist. Ross No.

11CA3275, 2012-Ohio-1522, ¶ 9. After a trial court refers the matter to the prosecutor,

there are no additional requirements in R.C. 2935.10 that impose further duties upon

the trial court.

       {¶11} Brown cites to In re Charging Affidavit of Demis, 5th Dist Stark No.

2013CA98, 2013-Ohio-5520 and In re Slayman, 5th Dist. Licking No. 08CA70, 2008-

Ohio-6713 to support his argument that the trial court must review the prosecutor’s
Ross App. No. 16CA3572                                                                        6
decision not to pursue criminal charges. Brown essentially argues he is entitled to a

probable cause hearing under Crim.R. 5. However, in In re Slayman the prosecutor

reviewed the affidavit and supporting materials and determined that they lacked merit

and were not made in good faith. The affiant filed a motion requesting a probable cause

hearing and the trial court denied it. The affiant appealed the trial court’s denial. The

appellate court held that there was no obligation to hold a probable cause hearing

because the criminal rules of procedure were not applicable to R.C. 2935.10

proceedings. Id. at ¶ 21. The appellate court stated that its prior decision finding that an

affiant was entitled to independent review by trial court on probable cause was issued

prior to the Supreme Court of Ohio’s decision in State ex rel. Boylen v. Harmon, supra.

       {¶12} In In re Charging Affidavit of Demis, supra, the trial court conducted a

probable cause hearing on an affidavit filed under R.C. 2935.09. Based on the

information presented at the hearing the trial court filed a judgment entry declining to

find probable cause. Demis appealed the order. The Fifth District Court of Appeals

stated that “a trial court is to review a prosecutor’s decision on the issue of whether the

claims in the affidavit lacked merit and the affidavit was not filed in good faith under an

abuse of discretion standard.” Demis at ¶21. However, the probable cause hearing in

Demis appeared to be voluntarily initiated by the court and prosecutor. There is nothing

in the record that indicates Demis requested it. He failed to attend. Demis at ¶ 23. In

making its statement that a trial court reviews the prosecutor’s decision, the court cited

to no statutory provision in R.C. 2935.10 that requires a trial court to conduct a probable

cause hearing. Instead, the appellate court cited as support State ex rel. Evans v.

Columbus Dept. of Law, 83 Ohio St.3d 174, 175, 699 N.E.2d 60 (1998).

       {¶13} State ex rel. Evans involved a mandamus action filed against the
Ross App. No. 16CA3572                                                                      7
prosecutor after the prosecutor declined to pursue a matter under R.C. 2935.10. The

Court held that a prosecutor cannot be compelled to prosecute by a writ of mandamus

unless the relator alleges in the mandamus petition that the prosecutor’s failure to

prosecute was an abuse of discretion:

       R.C. 2935.10 does not place any duty upon city prosecutors to prosecute
       misdemeanors charged by affidavit filed under R.C. 2935.09. In addition, a
       prosecuting attorney will not be compelled to prosecute except when the
       failure to do so constitutes an abuse of discretion. * * * Evans did not
       allege sufficient facts in his complaint evidencing that the city prosecutor
       abused her discretion by determining that the charges lacked probable
       cause. See State ex rel. Murr v. Meyer (1987), 34 Ohio St.3d 46, 47, 516
       N.E.2d 234, 235, affirming the dismissal of a similar mandamus claim.

State ex rel. Evans at 175.

       {¶14} There is nothing in the decision in Evans that requires a trial court to

conduct a probable cause hearing under Crim.R. 5 in R.C. 2935.10 proceedings. The

Court’s holding in State ex rel. Boylen v. Harmon, supra, states that the statute governs

the proceedings, not the criminal rules of procedure. And, more recently, the Court held

that R.C. 2935.10 does not require a prosecutor to conduct an independent

investigation and instead may reasonably rely on the investigative efforts of law-

enforcement officials to satisfy the statutory obligations under R.C. 2953.10. See State

ex rel. Bunting v. Styer, 147 Ohio St.3d 462, 2016-Ohio-5781, 67 N.E.3d 755, ¶17.

       {¶15} We find nothing in R.C. 2935.10 that requires the trial court to conduct a

probable cause hearing or to review a prosecutor’s decision not to pursue criminal

charges. Because the trial court is under no obligation to hold a hearing or review the

prosecutor’s decision, the court is likewise under no duty to issue a final order arising

from such review. Brown is not entitled to a writ of mandamus because Judge Nusbaum

has no clear legal duty to issue a final order dismissing the R.C. 2935.10 proceeding.
Ross App. No. 16CA3572                                                                   8
                                        Conclusion

        {¶16} Brown has not established that he is entitled to a writ of mandamus

compelling the respondent to issue a final order. We GRANT respondent’s motion to

dismiss, DENY the writ, and DISMISS the action.

        {¶17} The clerk shall serve a copy of this order on all counsel of record by

ordinary mail and any unrepresented parties at their last known addresses by certified

mail.

        {¶18} RESPONDENT’S MOTION GRANTED. WRIT DENIED. PETITION

DISMISSED. COSTS TO RELATOR. IT IS SO ORDERED.

Abele, J. & Hoover, J.: Concur.



                                                 FOR THE COURT

                                                 _____________________________
                                                 William H. Harsha
                                                 Administrative Judge

                                         NOTICE

     This document constitutes a final judgment entry and the time period for
appeal commences from the date of filing with the clerk.

       Pursuant to Civ.R. 58(B), the clerk is ORDERED to serve notice of the
judgment and its date of entry upon the journal on all parties who are not in
default for failure to appear. Within three (3) days after journalization of this
entry, the clerk is required to serve notice of the judgment pursuant to Civ.R.
5(B), and shall note the service in the appearance docket and indicate the names
and addresses of the parties it is serving, the method of service, and the costs
associated with the service.
