[Cite as State ex rel. Anderson v. Sheeran, 2019-Ohio-3792.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Kim L. Anderson,                     :

                 Relator,                              :

v.                                                     :           No. 18AP-880

Judge Patrick E. Sheeran, Judge,                       :       (REGULAR CALENDAR)
Court of Common Pleas, et al.,
                                                       :
                 Respondents.



                                            D E C I S I O N

                                  Rendered on September 19, 2019



                 Kim L. Anderson, pro se.

                 Ron O'Brien, Prosecuting Attorney, and Bryan B. Lee, for
                 respondents.


                                          IN MANDAMUS
                                      ON MOTION TO DISMISS

NELSON, J.
        {¶ 1} Relator Kim L. Anderson was convicted in 2008 of multiple offenses in
connection with a mortgage fraud scheme, sentenced to fifteen years in prison, and ordered
to pay over a million dollars in restitution. He has filed a complaint seeking a writ of
mandamus against the common pleas court judge and the assistant prosecuting attorney
who handled his case; he asks for dismissal of the restitution order, reimbursement of his
prison account for funds previously withdrawn to satisfy that order, and immediate release
from prison. Nov. 19, 2018 Complaint at 15.
        {¶ 2} The state has filed a motion to dismiss Mr. Anderson's complaint for failure
to state a claim upon which relief may be granted, arguing that Mr. Anderson has failed to
No. 18AP-880                                                                                     2

comply with the provision of R.C. 2969.25 that requires an inmate upon commencement of
a civil action to file "an affidavit that contains a description of each civil action or appeal of
a civil action that the inmate has filed in the previous five years in any state or federal court."
The state also argues that res judicata bars Mr. Anderson's claims because he "continues,
after several appeals, to insist that his convictions are improper" and is simply attempting
to "collaterally attack his convictions." Motion to Dismiss of Respondents to Relator's
Petition for a Writ of Mandamus at 6-7.
       {¶ 3} Citing State v. Anderson, 10th Dist. No. 17AP-53, 2017-Ohio-5609, in which
we held that a previous motion filed by Mr. Anderson to waive or suspend restitution was
properly dismissed by the trial court on the grounds of res judicata and the law of the case
doctrine, the magistrate recommends sustaining the state's motion and dismissing the
complaint. App'x at ¶ 22 (attached).
       {¶ 4} Mr. Anderson has not filed a response to the state's motion to dismiss, nor
has he lodged objections to the magistrate's decision.
       {¶ 5} We take judicial notice of the Ohio Department of Rehabilitation and
Correction letter sent and docketed after Mr. Anderson had filed this mandamus action,
notifying the trial court of Mr. Anderson's recent release from prison. May 22, 2019 Letter
from ODRC; see, e.g., State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-
4798, ¶ 10 ("It is appropriate for us to take judicial notice of the [lower court's] dismissal
entry in deciding whether dismissal of Everhart's prohibition claim was warranted"). The
release renders Mr. Anderson's request for release moot. Nonetheless, he did fail to comply
with R.C. 2969.25 when he filed this action. That failure is basis for dismissal. See Hazel v.
Knab, 130 Ohio St.3d 22, 2011-Ohio-4608.
       {¶ 6} Moreover, when no party files objections, Civ.R. 53(D)(4)(c) states that "the
court may adopt a magistrate's decision, unless it determines that there is an error of law
or other defect evident on the face of the magistrate's decision." Mr. Anderson's release
prevents us from adopting the magistrate's first finding of fact stating that he is "currently
incarcerated," but we agree with the decision insofar as it recommends that the complaint
be dismissed.
       {¶ 7} As the magistrate notes, Mr. Anderson has attempted repeatedly to attack the
restitution order through postconviction litigation, and we have repeatedly held that res
No. 18AP-880                                                                             3

judicata bars consideration of his claim that the order is improper. See Anderson, 2017-
Ohio-5609, at ¶ 11 (recounting the procedural history of motions Mr. Anderson filed "to
stay collection of restitution," "to vacate restitution," and others "complaining about
restitution issues"); State v. Anderson, 10th Dist. No. 14AP-61, 2014-Ohio-3699, ¶ 10
("Issues regarding the determination of restitution are matters that could have been raised
in his direct appeal," and such matters are barred by res judicata).
       {¶ 8} We grant the state's motion to dismiss, and dismiss Mr. Anderson's
complaint.
                                                    Magistrate's decision adopted in part;
                                          motion to dismiss granted; complaint dismissed.

                      BRUNNER and BEATTY BLUNT, JJ., concur.
                            _________________
No. 18AP-880                                                                            4

                                     APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT


The State ex rel. Kim L. Anderson,          :

             Relator,                       :

v.                                          :                    No. 18AP-880

Judge Patrick E. Sheeran Judge,            :                (REGULAR CALENDAR)
Court of Common Pleas, Courthouse, et al.,
                                           :
             Respondents.



                        MAGISTRATE'S DECISION

                               Rendered on May 14, 2019



             Kim L. Anderson, pro se.

             Ron O'Brien, Prosecuting Attorney, and Bryan B. Lee, for
             respondents.


                                   IN MANDAMUS
                               ON MOTION TO DISMISS

      {¶ 9} Relator, Kim L. Anderson, has filed this original action requesting this court
issue a writ of mandamus ordering respondent the Honorable Patrick E. Sheeran, judge of
the Franklin County Court of Common Pleas, to dismiss the restitution order from his
underlying criminal case, order that all monies removed from his inmate account be
reimbursed, and his immediate release from incarceration due to the miscalculation of the
amount of restitution owed. Relator also names Assistant Prosecuting Attorney Scott Smith
as a respondent asserting that he failed to present accurate information from which the
court then made its erroneous determinations.
No. 18AP-880                                                                                 5

Findings of Fact:
         {¶ 10} 1.   Relator is an inmate currently incarcerated at Marion Correctional
Institution.
         {¶ 11} 2. In the underlying criminal action, relator was found guilty of multiple
offenses including money laundering, engaging in a pattern of corrupt activity, and
complicity to commit the following: theft, identity fraud, and forgery, for his facilitation of
a $1.1 million mortgage-fraud scheme. The trial court sentenced relator to a 15-year prison
term and ordered him to pay restitution in the total amount of $1,178,750.
         {¶ 12} 3. Relator appealed his conviction to this court raising five assignments of
error. State v. Anderson, 10th Dist. No. 08AP-1071, 2009-Ohio-6566. This court's decision
was upheld by the Supreme Court of Ohio.
         {¶ 13} 4. Thereafter, relator began to engage in extensive post-judgment motion
practice. Relator has filed more than 35 post-judgment motions, requests, and petitions
with the trial court, many of which are repetitive, and several raise issues relating to
restitution. Additionally, this court has issued several prior decisions addressing relator's
appeals and multiple memorandum decisions regarding relator's motions to reopen,
reconsider, certify a conflict, and for en banc consideration. The Supreme Court has also
addressed this case on at least seven occasions, including applications to disqualify the trial
judge.
         {¶ 14} 5. Recently, in State v. Anderson, 10th Dist. No. 17AP-53, 2017-Ohio-5609,
this court heard relator's appeal of his motion to waive or suspend restitution which had
been denied by the trial court. This court determined that res judicata and the law of the
case doctrine both applied, stating:
                Under the doctrine of res judicata, a final judgment of
                conviction bars a convicted defendant who was represented
                by counsel from raising and litigating in any proceeding
                except an appeal from that judgment, any defense or any
                claimed lack of due process that was raised or could have been
                raised by the defendant at trial, which resulted in that
                judgment of conviction, or on an appeal from that judgment.
                State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),
                paragraph nine of the syllabus. The doctrine of res judicata
                "'promotes principles of finality and judicial economy by
                preventing endless relitigation of an issue upon which there
                was already a full or fair opportunity to be heard.'" Daniel v.
No. 18AP-880                                                                              6

                 Williams, 10th Dist. No. 13AP-155, 2014-Ohio-273, ¶ 18,
                 quoting State v. Jama, 10th Dist. No. 11AP-210, 2012-Ohio-
                 2466, ¶ 45, citing State v. Saxon, 109 Ohio St.3d 176, 2006-
                 Ohio-1245, ¶ 18, 846 N.E.2d 824.

                 The law of the case doctrine also is applicable to this case. As
                 we recently stated in State v. Monroe, 10th Dist., 2015-Ohio-
                 844, ¶ 29, 29 N.E.3d 391:

                 The law of the case is a longstanding doctrine in Ohio
                 jurisprudence. "[T]he doctrine provides that the decision of a
                 reviewing court in a case remains the law of that case on the
                 legal questions involved for all subsequent proceedings in the
                 case at both the trial and reviewing levels." Nolan v. Nolan, 11
                 Ohio St.3d 1, 3, 11 Ohio B. 1, 462 N.E.2d 410 (1984). "The
                 doctrine is necessary to ensure consistency of results in a case,
                 to avoid endless litigation by settling the issues, and to
                 preserve the structure of superior and inferior courts as
                 designed by the Ohio Constitution." State ex rel. Potain v.
                 Mathews, 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979).

                 As such, appellant's current claims could have been raised on
                 direct appeal, including his ineffective assistance of counsel
                 claim as it arises from counsel's alleged failure to request a
                 hearing on the restitution issue at the sentencing hearing in
                 which appellant was present. In addition, appellant could
                 have tried to raise this issue in one of his earlier motions, and
                 in fact did challenge the orders of restitution in three earlier
                 trial court filings.

Id. at ¶ 8-10.


       {¶ 15} 6. On November 19, 2018, relator filed the instant mandamus action again
challenging the amount of restitution he had been ordered to pay and the collection of same.
       {¶ 16} 7. On December 4, 2018, respondent filed a motion to dismiss.
       {¶ 17} 8. Relator has not filed a response to the motion to dismiss and the matter is
currently before the magistrate.
Conclusions of Law:
       {¶ 18} For the reasons that follow, it is this magistrate's decision that this court
should dismiss relator's petition for a writ of mandamus.
No. 18AP-880                                                                                  7

       {¶ 19} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course of
the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 20} 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 (1992). In reviewing the complaint, the
court must take all the material allegations as admitted and construe all reasonable
inferences in favor of the nonmoving party. Id.
       {¶ 21} In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted, it must appear beyond doubt from the complaint that relator
can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants
Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is not subject
to dismissal under Civ.R. 12(B)(6) if the complaint alleges the existence of a legal duty by
the respondent and the lack of an adequate remedy at law for relator with sufficient
particularity to put the respondent on notice of the substance of the claim being asserted
against it, and it appears that relator might prove some set of facts entitling him to relief.
State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94 (1995).
For the following reasons, respondent's motion should be granted and relator's complaint
should be dismissed.
       {¶ 22} As this court stated in Anderson, 2017-Ohio-5609, res judicata and the law
of the case doctrine, both apply here to relator's latest challenge to the judgment of the trial
court. On those grounds, this court should grant respondent's motion and dismiss relator's
complaint. Further, inasmuch as relator has not prevailed, this court should order the clerk
to collect periodic payments from his inmate account to pay the costs of this proceeding.


                                                /S/ MAGISTRATE
                                                STEPHANIE BISCA
No. 18AP-880                                                                    8

                           NOTICE TO THE PARTIES

           Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
           error on appeal the court's adoption of any factual finding or
           legal conclusion, whether or not specifically designated as a
           finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
           unless the party timely and specifically objects to that factual
           finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
