State ex rel. McBroom v. Ricart Properties, Inc. , 2022 Ohio 1094 ( 2022 )

[Cite as State ex rel. McBroom v. Ricart Properties, Inc., 2022-Ohio-1094.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Gracie E. McBroom, :
Relator, :
v. : No. 20AP-525
[Ricart Properties, Inc.], : (REGULAR CALENDAR)
Respondent. :
D E C I S I O N
Rendered on March 31, 2022
On brief: Gracie E. McBroom, pro se.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
KLATT, J.
{¶ 1} Relator, Gracie E. McBroom, commenced this original action in mandamus
alleging that respondent, Ricart Properties, Inc. ("Ricart"), breached a contract and
committed fraud by failing to replace the engine in her vehicle. Relator requests that this
court issue a writ of mandamus ordering Ricart to pay her compensatory and punitive
damages. Relator also seeks various other relief. In response, Ricart filed a motion to
dismiss.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this matter to a magistrate who issued a decision, including findings of fact and
conclusions of law, which is appended hereto. The magistrate found that under Ohio law
mandamus will not lie to enforce a private right against a private person or entity. Because
No. 20AP-525 2
relator seeks to enforce a private right against a private entity, the magistrate has
recommended that we grant Ricart's motion to dismiss.
{¶ 3} Relator, appearing pro se, has filed objections to the magistrate's decision.
Relator's objections are very difficult to decipher. Relator's first argument appears to be
that the magistrate's decision is void and a nullity because relator's motions to recuse were
not decided prior to the magistrate's decision. Relator is mistaken. Relator's multiple
motions seeking recusal of the magistrate were denied by this court in a journal entry dated
October 2, 2021. The magistrate issued his decision on December 6, 2021. Therefore,
relator's argument lacks merit.1
{¶ 4} Relator's remaining arguments are purportedly based on a wide variety of
provisions from the Ohio Rules of Civil Procedure and various statutory and constitutional
provisions. These arguments are incomprehensible. Moreover, to the extent they can be
understood at all, none of the arguments even remotely address the basis for the
magistrate's decision. Because relator has failed to identify any error by the magistrate, we
overrule relator's objections.
{¶ 5} Although not the express basis for the magistrate's decision, we also note that
relator is not entitled to relief in mandamus because she has an adequate remedy at law for
her purported breach of contract and fraud claims. There are three requirements that must
be met to establish a right to 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
law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 6} Here, relator's complaint seeks mandamus relief based on allegations that
Ricart breached its contract and committed fraud in the connection with its repair of the
engine in her vehicle. Because relator may pursue civil remedies and money damages for
these alleged causes of action in a state court of competent jurisdiction, relator has a plain
and adequate remedy in the ordinary course of law. State ex rel. Page v. Phipps, 10th Dist.
No. 19AP-347, 2020-Ohio-5487 (dismissing a mandamus action where relator had an
1On December 7, 2021, this court also overruled relator's multiple motions for reconsideration of its
October 2, 2021 journal entry.
No. 20AP-525 3
adequate remedy in the ordinary course of law). For this additional reason, relator is not
entitled to relief in mandamus.
{¶ 7} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus and grant respondent's motion to dismiss.
Motion to dismiss granted; writ of mandamus denied.
BEATTY BLUNT and MENTEL, JJ., concur.
No. 20AP-525 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Gracie E. McBroom, :
Relator, :
v. : No. 20AP-525
[Ricart Properties, Inc.], : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on December 6, 2021
Gracie E. McBroom, pro se.
Mac Murray & Shuster LLP, and Lisa A. Messner, for
respondent Ricart Properties, Inc.
IN MANDAMUS
{¶ 8} Relator, Gracie E. McBroom, has filed this original action alleging
respondent, Ricart Properties, Inc. ("Ricart"), breached a contract and committed fraud in
failing to replace the engine in her vehicle, a 2002 Kia Rio ("Kia"). She requests that this
court issue a writ of mandamus ordering Ricart to pay compensatory and punitive damages,
to give her a 2021 gray Genesis automobile ("Genesis"), to provide insurance and
maintenance for the Genesis for five years, to install a rebuilt engine in her Kia, and to
replace all of the needed parts on her Kia. Ricart has filed a December 9, 2020, motion to
dismiss.
No. 20AP-525 5
Findings of Fact:
{¶ 9} 1. Relator is an individual who allegedly took her Kia automobile to Ricart for
repair services.
{¶ 10} 2. Ricart is a private business that engages in car repair services.
{¶ 11} 3. Although the exact details of the underlying circumstances are somewhat
unclear, relator alleges that, in or about June or July 2014, the parties entered into an
agreement that specified Ricart would replace her engine with a used engine. Relator
alleges that she paid Ricart approximately $4,000 for the replacement engine, but Ricart
never installed the replacement engine. Relator alleges that Ricart denied that the parties
ever agreed that it would install a replacement engine and, in fact, denied that it ever
installed a replacement engine.
{¶ 12} 4. In late 2020, relator alleges that she contacted the Better Business Bureau
and the Ohio Attorney General but neither was helpful in resolving her claims, and they
suggested the court system as a possible avenue for relief.
{¶ 13} 5. On November 13, 2020, relator filed a complaint for writ of mandamus
against Ricart.
{¶ 14} 6. On November 16, 2020, relator filed an amended complaint for writ of
mandamus, alleging Ricart breached its contract and committed fraud in failing to replace
the engine in her Kia and requesting that this court issue a writ of mandamus ordering
Ricart to pay compensatory and punitive damages, to give her a Genesis, to provide
insurance and maintenance for the Genesis for five years, to install a rebuilt engine in her
Kia, and to replace all of the needed parts on her Kia.
{¶ 15} 7. On December 9, 2020, Ricart filed a motion to dismiss.
Conclusions of Law:
{¶ 16} The magistrate recommends that this court grant Ricart's motion to dismiss
this action.
{¶ 17} For a writ of mandamus to issue, the relator must demonstrate: (1) a clear
legal right to the relief requested; (2) the respondent is under a clear legal duty to perform
the requested act; and (3) the relator has no plain and adequate remedy at law. State ex rel.
Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
No. 20AP-525 6
{¶ 18} A motion to dismiss pursuant to Civ.R. 12(B)(6) tests the sufficiency of the
complaint. "In order for a court to dismiss a case pursuant to Civ.R. 12(B)(6) 'it must appear
beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him
to recovery.' " T & M Machines, LLC v. Yost, 10th Dist. No. 19AP-124, 2020-Ohio-551, ¶ 10,
quoting O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975),
syllabus. In construing a complaint upon a Civ.R. 12(B)(6) motion, a court must presume
that all factual allegations in the complaint are true and make all reasonable inferences in
the plaintiff's favor. LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-
3608, ¶ 14.
{¶ 19} In the present case, relator's complaint fails to state a claim for relief in
mandamus. Relator has named a private business, Ricart, rather than a public official, as
the respondent in her mandamus complaint. "Mandamus is a writ, issued in the name of
the state to an inferior tribunal, a corporation, board, or person, commanding the
performance of an act which the law specially enjoins as a duty resulting from an office,
trust, or station." R.C. 2731.01. Thus, a writ of mandamus will issue to compel the
performance of a public duty by a public official. State ex rel. Martinelli v. Corrigan, 68
Ohio St.3d 362, 363 (1994). See also State ex rel. Verbanik v. Bernard, 11th Dist. No. 2006-
T-0080, 2007-Ohio-1786, ¶ 6 (the essential purpose of a writ of mandamus is to require a
public official to complete a specific act which he or she has a legal obligation to do).
However, "[m]andamus will not lie to enforce a private right against a private person." State
ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 163 (1967). See, e.g., State ex rel.
McKibben v. Christensen Donchatz Kettlewell & Owen LLP, 10th Dist. No. 18AP-618,
2018-Ohio-5253, ¶ 6 (finding relator's mandamus complaint failed to state a claim because
relator named a law firm, rather than a public official, as the respondent); State ex rel.
Bristow v. Windsor, 4th Dist. No. 17CA9, 2017-Ohio-6879, ¶ 3 (finding mandamus will not
lie to compel the relator's aunt to pay him damages for an alleged slander and for a freeze
on all of his aunt's monies and property because the action seeks to enforce a private right
against a private person); State ex rel. Tax Lien Law Group, L.L.P. v. Cuyahoga Cty.
Treasurer, 8th Dist. No. 100181, 2014-Ohio-215, ¶ 7 (finding an attorney seeking to collect
fees owed from a client pursuant to a contractual agreement between those parties concerns
a private right against a private person); State ex rel. Carrion v. Nunez, 8th Dist. No. 91910,
No. 20AP-525 7
2009-Ohio-3376, ¶ 10 (finding that mandamus will not lie against a private, independent,
nonprofit corporation); Ringel v. Case W. Res. Univ., 8th Dist. No. 82042, 2003-Ohio-186,
¶ 6 (finding relator failed to aver facts that can establish that Case Western Reserve
University is not a private person, and mandamus cannot lie against a private person); State
ex rel. Bristow v. The Plain Dealer, 8th Dist. No. 80462 ( 2001) (in mandamus action
against newspapers, television stations, and television personalities, relator did not aver
facts that establish that respondents are not private persons; thus, relator has failed to state
a claim upon which relief in mandamus can be granted). Here, relator has not averred facts
that establish that Ricart is not a private entity. As mandamus will not lie against a private
person to enforce a private right, relator has failed to state a claim upon which relief in
mandamus can be granted.
{¶ 20} Accordingly, it is the magistrate's decision that this court should grant
Ricart's motion to dismiss relator's complaint for writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
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).