Lumpkin v. McNaney
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[Cite as Lumpkin ex rel. v. McNaney, 2011-Ohio-196.] COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT EX REL, TROY LUMPKIN Relator JUDGES: Hon. Julie A. Edwards, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vsCase No. 10-CA-96 ERIN MCNANEY Respondent OPINION CHARACTER OF PROCEEDING: Writ of Mandamus JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: January 18, 2011 APPEARANCES: For Relator For Respondent TROY LUMPKIN, PRO SE #609-662 15708 McConnelsville Rd. Calwell, Ohio 43724 NO APPEARANCE Licking County, Case No. 10-CA-96 2 Hoffman, J. {¶1} Relator, Troy Lumpkin, has filed a Petition for Writ of Mandamus requesting this Court reopen his direct appeal due to ineffective assistance of counsel. {¶2} For a writ of mandamus to issue, the relator must have a clear legal right to the relief prayed for, the respondents must be under a clear legal duty to perform the requested act, and relator must have no plain and adequate remedy in the ordinary course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50, 451 N.E.2d 225. {¶3} The Supreme Court has held, A writ of mandamus will not be issued where there is a plain and adequate remedy in the ordinary course of the law. State ex rel. Peeples v. Anderson (1995), 73 Ohio St.3d 559, 560, 653 N.E.2d 371, 371. Further, the Supreme Court has approved sua sponte dismissal of actions where the complainant cannot prevail on the facts alleged in the complaint stating, Sua sponte dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate if the complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the complaint. State ex rel. Bruggeman v. Ingraham (1999), 87 Ohio St.3d 230, 231, 718 N.E.2d 1285, 1287. State ex rel. Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 316, 725 N.E.2d 663, 667. {¶4} Under the facts of this case as contained in the complaint, App.R. 26(B) provides an adequate remedy at law to petition the court to reopen Relator s appeal. This is the very relief Relator seeks. Because the existence of an adequate remedy at law precludes the issuance of the writ of mandamus, we decline to issue the writ and dismiss this complaint for failure to state a claim upon which relief may be granted. Licking County, Case No. 10-CA-96 {¶5} CAUSE DISMISSED. {¶6} COSTS TO RELATOR. {¶7} 3 IT IS SO ORDERED. By: Hoffman, J. Edwards, P.J. and Wise, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS s/ John W. Wise _____________________ HON. JOHN W. WISE Licking County, Case No. 10-CA-96 4 IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT EX REL, TROY LUMPKIN Relator -vsERIN MCNANEY Respondent : : : : : : : : : JUDGMENT ENTRY Case No. 10-CA-96 For the reasons stated in our accompanying Memorandum-Opinion, the Petition for Writ of Mandamus is dismissed. CAUSE DISMISSED. COSTS TO RELATOR. IT IS SO ORDERED. s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS s/ John W. Wise______________________ HON. JOHN W. WISE
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