THEODIS FIPPS v. CHRISTOPHER E. DAY
No. 111633
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 27, 2022
2022-Ohio-3434
MARY J. BOYLE, J.
Writ of Mandamus, Motion No. 558076
RELEASED AND JOURNALIZED: September 27, 2022
Appearances:
Theodis Fipps, pro se.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Matthew T. Fitzsimmons, IV, Assistant Prosecuting Attorney, for respondent.
MARY J. BOYLE, J.:
{¶ 1} Theodis Fipps, the relator, has filed an amended complaint for a writ of mandamus through which he seeks an order from this court that requires Magistrate Christopher E. Day “to vacate an interlocutory order as entered by him without legal authority under
I. The Facts
{¶ 2} The following are garnered from Fipps‘s original complaint for mandamus, the amended complaint for mandamus, Magistrate Day original motion to dismiss, the amended motion to dismiss, and the electronic docket maintained by the Cuyahoga County Clerk of Courts in Woods Cove III, LLC v. Fipps, supra.1
{¶ 3} On May 18, 2016, Woods Cove III, LLC (“Woods“) filed a tax certificate foreclosure action against Fipps, in Cuyahoga C.P. No. CV-16-863466, based upon delinquent property taxes due on real property located at 3634 Runnymeade Blvd., Cleveland Heights, Ohio 44121. On May 19, 2016, the trial court judge referred the foreclosure action to Magistrate Day to try the issues of law and fact arising therein and report without unnecessary delay. On August 17, 2018, Woods filed a motion to substitute Usha Pillai IRA, LLC (“Pillai“) as the plaintiff in the tax certificate foreclosure action, because the tax certificates underlying the action were assigned to Pillai. On August 17, 2018, Magistrate Day granted the motion to substitute Woods with Pillai as plaintiff.
[t]hat an order of Sale shall issue to the Sheriff or private selling officer directing him, without appraisal, to advertise and separately sell said parcel at public sale in the manner provided by law for the sale of real property on execution and according to
Sections 5721.19 of the Ohio Revised Code and the applicable Rules of the Cuyahoga County Common Pleas Court, for not less than the total amount the findings herein which shall constitute the “minimum bid“; and that the Sheriff or private selling officer make due return to this Court, for further proceedings under law.
On July 17, 2019, the Sheriff reported a “no sale” of the real property subject to the tax certificates.
{¶ 5} On July 24, 2019, the trial court issued an order of forfeiture:
Pursuant to
R.C. 5721.40 , the parcel, having been offered for sale twice is hereby forfeited to the certificate holder. “Usha Piullai Ira, LLC“, substitute plaintiff herein. The clerk is instructed to certify a copy of this order to the county treasurer. The sheriff is ordered to prepare and record a good and sufficient deed conveying title to the parcel to “Usha Piullai IRA, LLC“. Writ of possession against defendant titleholder(s) ordered issued to certificate holder.
(Emphasis deleted.)
{¶ 6} On March 31, 2022, Fipps filed a motion for entry of a final appealable order based upon the claim that the trial court‘s order of February 14, 2019, that adopted the magistrate‘s decision, was not a final appealable order because it
Defendant Theodis Fipps‘s motion for entry of final appealable order is denied. As review of the court 2/14/19 judgment entry adopting magistrate‘s decision reveals that the assigned judge affixed her signature to the entry and dated the entry as of 2/11/19. A further review of the judgment entry adopting the magistrate‘s decision reveals that it adjudicated all claims pending before the court and complied with the requirements of
Civ.R. 54(B) . As a result of the (1) the judge‘s dated signature appearing on the judgment entry; (2) the judgment entry adjudicating all claims before the court; and (3) the inclusion of language required byCiv.R. 54 in the judgment entry, the court‘s 2/14/19 judgment entry adopting the magistrate‘s decision constituted a final, appealable order as of that date. As the court previously entered a final appealable order in this case. The defendant‘s motion for entry of final, appealable order is denied.
{¶ 7} On June 17, 2022, Fipps filed a complaint for a writ of mandamus. Fipps claimed that he was entitled to a writ of mandamus that required Magistrate Day to vacate the August 17, 2018 order that substituted Pillai for Woods because he possessed no legal authority to issue a substitution order. On July 6, 2022, Magistrate Day filed a motion to dismiss the complaint for a writ of mandamus. On July 15, 2022, Fipps filed an amended complaint for mandamus based upon the sole claim that Magistrate Day possessed no legal authority to deny the motion for a final appealable order. On July 19, 2022, Magistrate Day filed a second motion to dismiss that addressed the amended complaint for mandamus. For the following reasons, we grant Magistrate Days second motion to dismiss the amended complaint for mandamus.
II. Procedural Defects
{¶ 8} The original complaint for mandamus was based upon the claim that Magistrate Day was without authority, under
B. Failure to Comply with Civ.R. 10(A)
{¶ 9}
C. Improper Caption
{¶ 10} We also find that Fipps‘s complaint is defective because it is improperly captioned. Fipps styled this action as “Theodis Fipps vs. Christopher E. Day.” Pursuant to
III. Mandamus Requirements and Analysis
A. Requirements for Mandamus
{¶ 11} Finally, the complaint for a writ of mandamus fails to state a claim upon which relief can be granted. For this court to issue a writ of mandamus, Fipps must demonstrate: (1) that Fipps possesses a clear legal right to the relief prayed for, (2) that Magistrate Day possess a clear legal duty to perform the requested act, and (3) there exists or existed no plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St. 3d 28, 451 N.E.2d 225 (1983);
B. Substantive Review of Claim for Mandamus
{¶ 12} A thorough review of the complaint for mandamus fails to reveal that Fipps has established he possessed a clear legal right to have the order denying the motion for a final appealable order vacated, or that Magistrate Day possessed any legal duty to vacate the order that denied the motion for a final appealable order. State ex rel. Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510; State ex rel. Woods v. Gagliardo, 49 Ohio St.2d 196, 360 N.E.2d 705 (1977). Initially, we find that Magistrate Day possessed the necessary authority to issue a ruling with regard to Fipps‘s motion for a final appealable order.
{¶ 13} In addition, the claim that the trial court did not sign the judgment of February 22, 2019, that adopted Magistrate Day‘s magistrate decision, is without merit. Exhibit “C” attached to the amended complaint for mandamus includes only the first page of the trial court‘s order of February 11, 2019, and specifically includes the language of “OSJ” which refers to “order see journal.” “OSJ” means that the
{¶ 14} Further review of the trial court‘s order adopting the magistrates decision clearly demonstrates an electronic signature. Loc.R. 19.1 of the Cuyahoga County Common Pleas Court General Division, allows for the use of an electronic signature.
We find no prohibition to the use of an electronic signature on the type of journal entries at issue. The use of electronic signatures is authorized by the local rules and does not conflict with the criminal rules or any existing law providing it is the judge who authorizes and is in control of its use.
Defendant acknowledges that the journal entries he is challenging all contain electronic signatures. There is no evidence in this record, nor any contention by the defendant, that would lead us to suspect that the electronic signatures were authorized by anyone other than the judge in this case. Accordingly, the use of the electronic signature by the judge constituted the attestation of a judicial act. Accordingly, the journal entries at issue comply with the Local Rules, are not inconsistent with the criminal or civil rules of procedure, and were valid under the law of this jurisdiction. See State v. Nicholson, Cuyahoga App. No. 91652, 2009 Ohio 3592, P9-11.
State v. Pinkney, 8th Dist. Cuyahoga No. 91861, 2010-Ohio-237, ¶ 37-38.
{¶ 15} It must also be noted that Fipps possessed an adequate remedy at law through an appeal of the order of foreclosure. Fipps also possessed other adequate remedies of law through: (1) the filing of an objection to Magistrate Day‘s motion rulings, under
C. Mandamus and Vain Act
{¶ 16} Mandamus will not issue to compel a vain act. State ex rel. Julnes v. S. Euclid City Council, 130 Ohio St.3d 6, 2011-Ohio-4485, 955 N.E.2d 363; State ex rel. Moore v. Malone, 96 Ohio St.3d 417, 2002-Ohio-4821, 775 N.E.2d 812; State ex rel. Keith v. Gaul, 8th Dist. Cuyahoga No. 102875, 2015-Ohio-3480. Where a defendant in a foreclosure action fails to obtain a stay of the distribution of the proceeds obtained from the sale of the foreclosed real property, subsequent legal action therefrom is moot because the matter has been extinguished through satisfaction of the judgment.
Where the court rendering judgment has jurisdiction of the subject-matter of the action and of the parties, and fraud has not intervened, and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away from the defendant the right to appeal or prosecute error or even to move for vacation of judgment.
{¶ 17} Because all funds from the sale of the real property have been distributed, title to the real property transferred, and no claim of fraud has been made by Fipps, Magistrate Day as well as the trial court lack jurisdiction to issue any further orders in the foreclosure action. To issue a writ of mandamus would constitute a vain act because Fipps is not entitled to any relief. Ditech Fin., L.L.C. v. VAT Mgmt., L.L.C., 8th Dist. Cuyahoga No. 109209, 2020-Ohio-5000; HSBC Bank, USA, Natl. Assn. v. Surrarrer, 8th Dist. Cuyahoga No. 106316, 2019-Ohio-1539.
{¶ 18} Accordingly, we grant Magistrate Day‘s second motion to dismiss. Costs to Fipps. The court directs the clerk of courts to serve all parties with notice of this judgment and the date of entry upon the journal as required by
{¶ 19} Complaint dismissed.
MARY J. BOYLE, JUDGE
EILEEN T. GALLAGHER, P.J., and EMANUELLA D. GROVES, J., CONCUR