State ex rel. Moore v. Cuyahoga Cty. Court of Common Pleas
2016 Ohio 7228
| Ohio Ct. App. | 2016Background
- Carl L. Moore, Sr. and Ronnie Moore filed a complaint for a writ of mandamus seeking to vacate a magistrate’s report and a summary-judgment foreclosure order entered in favor of Bank of America in a Cuyahoga County foreclosure case (CV-14-826343).
- The respondents were Judge Timothy McCormick, Magistrate Kevin Augustyn, and the Cuyahoga County Court of Common Pleas; they moved jointly to dismiss the mandamus complaint.
- The court found the mandamus complaint procedurally defective: it was not captioned in the name of the state on relation of the relators and was not verified by affidavit as required by R.C. 2731.04.
- The complaint also failed to include respondents’ addresses in the caption as required by Civ.R. 10(A).
- Ronnie Moore attempted to file and sign the pleadings on behalf of Carl L. Moore, Sr.; Ronnie is not a licensed attorney and may not represent another in court or pursue legal filings under a durable power of attorney.
- The court additionally held that Carl L. Moore, Sr. had an adequate remedy at law to challenge the foreclosure, so mandamus was inappropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural sufficiency of mandamus caption and verification | Moore sought mandamus relief but omitted state-on-relation caption and affidavit | Respondents argued complaint failed to meet R.C. 2731.04 and Civ.R. 10(A) requirements | Dismissed for failure to caption and verify properly |
| Ronnie Moore’s authority to prosecute on behalf of Carl Moore | Ronnie signed filings (including claiming durable POA) to pursue relief for Carl | Respondents argued Ronnie is not an attorney and durable POA does not permit litigation on another’s behalf | Dismissed for unauthorized practice of law and improper representation |
| Standing of Ronnie Moore to pursue the action | Ronnie filed as a relator on case papers | Respondents argued Ronnie has no interest in the foreclosure property and is not a real party in interest | Dismissed for lack of standing |
| Availability of adequate remedy at law (mandamus appropriateness) | Relators sought extraordinary relief to vacate foreclosure rulings | Respondents argued ordinary appellate/procedural remedies existed to challenge foreclosure | Dismissed because relator had plain and adequate remedy at law |
Key Cases Cited
- State ex rel. Huntington Ins. Agency v. Duryee, 73 Ohio St.3d 530 (1995) (mandamus complaint must be in state’s name on relation and verified)
- Maloney v. Sacks, 173 Ohio St. 237 (1962) (verification requirement for writs of mandamus)
- Gannon v. Gallagher, 145 Ohio St. 170 (1945) (procedural requisites for original actions)
- State ex rel. Sherrills v. State, 91 Ohio St.3d 133 (2001) (captioning and pleading requirements)
- Disciplinary Counsel v. Coleman, 88 Ohio St.3d 155 (2000) (durable power of attorney does not authorize nonlawyers to practice law)
- State ex rel. Ullman v. Hayes, 103 Ohio St.3d 405 (2004) (mandamus will not issue where an adequate remedy at law exists)
- State ex rel. Ward v. Reed, 141 Ohio St.3d 50 (2014) (availability of ordinary remedial routes to challenge foreclosure)