IN THE SUPREME COURT OF OHIO

State of Ohio, ex. rel.Biswanath Halder

Relator/Appellant

vs.

Gerald E. Fuerst, Cuyahoga CountyClerk of Courts

Respondent/Appellee.

CASE NO. 2007-2285

On Appeal from the EighthDistrict Court of Appeals,Cuyahoga County, Ohio

Court of Appeals Case No. 90442

Merit Brief of Respondent/Appellee Gerald E. Fuerst,Cuyahoga County Clerk of Courts

COUNSEL FORRELATOR/APPELLANT

COUNSELFORRESPONDENT/APPELLEE

BISWANA HALDER, PRO SEMansfield Correctional InstitutionA501980PO Box 788Mansfield, Ohio 44901-0788

WILLIAM D. MASON, ProsecutingAttorney of Cuyahoga County

FREDERICK W. WHATLEY(0010988)Assistant Prosecuting AttorneyCuyahoga County Prosecutor's Office1200 Ontario Street, 81h FloorThe Justice Center, Courts TowerCleveland, Ohio 44113(216) 443-7849(216) 443-7602 Faxp4fww@cuyaho gcounty. us

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TABLE OF CONTENTS

Table of Authorities .................................................................................................... ii

1. Statement of Facts ...........................................................................:............... 1

A. Statement of the Case ............................................................................... 1

B. Mr. Halder's Underlying Case ................................................................. 2

C. Mr. Halder's February 28, 2002, Notification of a Changeof Address for Purposes of Service in bis Underlying Case .................. 2

D. Mr. Halder's Failure to Notify the Trial Court or Clerk Fuerstof his June 1, 2006, Change of address .................................................... 3

E. The Trial Court's November 28, 2006, Denial of Mr.Halder's Civ.R. 60(B) Motion .................................................................. 3

F. Clerk Fuerst's December 4, 2006, Service on Mr. Halderof Notice of the Trial Court's Denial ....................................................... 3

C. Clerk Fuerst's March 29, 2007 Service of a Copy of the Docketon Mr. Halder ............................................................................................ 4

H. Mr. Halder's March 30, 2007 Notification to Clerk Fuerst ofhis June 1, 2006, Change of Address ....................................................... 5

1. Clerk Fuerst's Apri127, 2007, Service of a Certified Copy ofthe Trial Court's Decision on Mr. Halder .............................................. 5

II. Areument in Support of Propositions of Law .............................................. 5

Proposition of Law 1: Mandamus will not issue to compel an act thathas already been performed ........................................................................... 5

Proposition of Law 2: Mandamus will not issue when a relator has anadequate remedy at law .................................................................................. 9

III. Conclusion .......:.........:...............................................:..................................... 11

Certificate of Service ................................................................................................... 11

i

TABLE OF AUTHORITIES

Cases

Leader Insurance Co. v. Moncrief, 10th Dist. No. 05AP-1289,2006-Ohio-4232 .... ......................................................................................... 8

Nalbach v. Cacioppo, 11t' Dist. No. 2001-T-0062, 2002-Ohio-53 .. ......................... 8

Newell v. Gaul, 8"' Dist. No. 90295, 2007-Ohio-5332 .............................................. 5

Pannetta v. Euclid Police Dept. (1989), 43 Ohio St.3d 157, 158, 541 N.E.2d 49..... 9

Robb v. Smallwood, 165 Ohio App.3d 385, 846 N.E.2d 878, 2005-Ohio-5863........ 8

State ex rel. Aliane v. Sheward, 10th Dist. No. 02AP-949, 2003-Ohio-6554 ............. 6

State ex rel. Gilbert v. Cincinnati, lst Dist. No. C-070166, 2007-Ohio-6332.........5

State ex rel. Halder v. Fuerst, 8"` Dist. No. 90442, 2007-Ohio-5938 ....................... 2, 9

State ex rel. Howardv. Doneghy, 102 Ohio St.3d 355, 810 N.E.2d 958,2004-Ohio-3207 ............... ................................................. ............................ 6

State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119........ 9

State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 725 N.E.2d 663,2000-Ohio-3 3 5 ............................................................................................... 6

State ex rel. Nelson v. Russo, 89 Ohio St.3d 227, 729 N.E.2d 1181,2000-Ohio-141 ............................................................................................... 6

State ex rel. Ney v. Niehaus (Ohio, 1987), 33 Ohio St.3d 118, 515 N.E.2d 914 ....... 9

State ex rel. Rittner v. Bumb, 6th Dist. No. F-07-017, 2007-Ohio-5319 .................... 5

State ex rel. Smith v. Fuerst, 89 Ohio St.3d 456, 732 N.E.2d 983,2000-Ohio-218 ....................................................:.......................................... 6,8,

10

State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 365 N.E.2d .................... 5

State ex re1. Tran v. McGrath (1997), 78 Ohio St.3d 45, 676 N.E.2d 108 ................ 10

ii

State ex rel. Wilson v. Sunderland, 87 Ohio St.3d 548, 721 N.E.2d 1055,2000-Ohio-479 ................ ............................................................................... 8

State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 663 N.E.2d 639,1996-Ohio-211 ........:...................................................................................... 10

Statutes and Rules

Civ.R. 5 (B) ................................................................................................................. 7

Civ.R. 6(A) ................................................................................................................. 3

Civ.R. 6(B)(2) ............................................................................................................ 10

Civ.R. 58(B) ...............................................................................................................passim

Civ.R. 60(B) ...............................................................................................................passim

Civ.R. 60(B)(5) .......................................................................................................... 2, 9

ui

I. Statement of Facts Relevant to this Appeal

A. Statement of the Case

The instant appeal arises from an original action in mandamus filed in the Eighth

District Court of Appeals, Cuyahoga County, Ohio. On September 20, 2007,

Relator/Appellant Biswanath Halder ["Mr. Halder"] filed his "Complaint for Writ of

Mandamus" ["Complaint"], being Eighth District Court of Appeals Case No. 90442. Mr.

Halder's requested relief was an order from the court requiring Respondent/Appellee

Cuyahoga County Clerk of Courts Gerald E. Fuerst ["Clerk Fuerst"] to serve upon Mr.

Halder the notice required by Civ.R. 58(B) of the trial court's denial of Mr. Halder's

Civ.R. 60(B) motion in Mr. Halder's underlying case.

Clerk Fuerst responded to Mr. Halder's Complaint by filing a combined motion to

dismiss and motion for summary judgment ["motion"]. The grounds for Clerk Fuerst's

motion were that: 1) Clerk Fuerst served Mr. Halder with notice of the trial court's denial

of his Civ.R. 60(B) motion within the three day time period required by Civ.R. 58(B), but

that the address the notice was sent to was incorrect because Mr. Halder had not informed

the trial court and/or Clerk Fuerst that he had changed his address; and, 2) as set forth in

Mr. Halder's Complaint and exhibits thereto, pursuant to Mr. Halder's request, Clerk

Fuerst had already served, and Mr. Halder had already received, a copy of the trial court's

docket that contained the entry of the trial court denying Mr. Halder's Civ.R. 60(B)

motion and a certified copy of the trial court's order.

On November 2, 2007, the appellate court granted summary judgment to Clerk

Fuerst for the reasons that: 1) notice of the denial of the Civ.R. 60(B) motion was sent to

Mr. Halder's address of record; therefore, Clerk Fuerst had properly executed his duty as

1

required by Civ.R. 58(B) and Mr. Halder's request for mandamus was moot [State ex rel.

Halder v. Fuerst, 8th Dist. No. 90442, 2007-Ohio-5938, at ¶6]; and, 2) Mr. Halder has an

adequate remedy at law by filing a Civ.R. 60(B)(5) niotion for relief from judgment to

demonstrate improper service of the notice of the denial of his original Civ.R. 60(B)

motion [Id, at ¶7].

B. Mr. Halder's Underlying Case

Mr. Halder's underlying case was captioned Biswanath Halder v. Shawn Miller,

and was Cuyahoga County Common Pleas Case No. CV-01-441308 [Mr. Halder's Merit

Brief, at p. 5-6, ¶13]. Mr. Halder's claims were dismissed on September 26, 2002

pursuant to the Defendant's motion for summary judgment [Id, at p. 7, ¶¶ 21-22; and,

Exhibit ("Ex ,") "A42" attached to the Complaint] I.

C. Mr. Halder's February 28, 2002, Notification of a Change ofAddress for Purposes of Service in his Underlying Case

Of special relevance to this appeal is the fact that, on February 28, 2002, soon

after his attorney had moved to withdraw from the underlying case, Mr. Halder filed a

formal change of address for service to his home address [see, Complaint, at Ex. "A45";

and, Clerk Fuerst's motion, at Ex. 2, which is a certified copy of Mr. Halder's notification

of his February 28, 2002, change of address and which is included in

"RespondenUAppellee's Supplement to the Briefs" ("Supp."), at p. 2]. Mr. Halder wrote

to the Cuyahoga County Clerk's office with the following notification: "Please mail all

communications concerning my case to my home address. 1918 Coltman Road,

Cleveland, Oh 44106" [Supp., at p. 2].

` Final Judgment was journalized on June 18, 2003, when Defendant Miller'scounterclaims were finally resolved [see, Exhibit "A41" attached to the Complaint].

2

D. Mr. Halder's Failure to Notify the Trial Court or Clerk Fuerstof his June 1, 2006, Change of Address

In his Complaint, Mr. Halder alleged that he was incarcerated at the Mansfield

Correctional Institution on June 1, 2006 [Complaint, at ¶144. Mr. Halder did not inform

the trial court and/or Clerk Fuerst of this change of address until April 10, 20072.

E. The Trial Court's November 28, 2006, Denial of Mr. Halder'sCiv.R. 60(B) Motion

On November 13, 2006, Relator filed a Civ.R. 60(B) "Motion for Relief from

Judgment" in his underlying case [see, Complaint at ¶6; and, Ex. "A41"]. On November

28, 2006, the trial court denied Mr. Halder's motion [Complaint at ¶7; and, Ex. "A50"].

An entry reflecting the Trial Court's decision was docketed on November 29, 2006, along

with the notation "Notice Issued" [Complaint at ¶ 11; and, Ex. "A41"].

F. Clerk Fuerst's December 4, 2006, Service on Mr. Halder ofNotice of the Trial Court's Denial

On December 4, 2006, 3 a "post card" notice was sent to "Halder/Biswanath" at

his last known address: "1918 Coltman Rd, Cleveland, Oh, 44106-0000" [see, certified

copy of "Notification Detail" attached to Clerk Fuerst's motion as Ex. 1, included in

2 The docket attached to Mr. Halder's Complaint appears to have been printed onMarch 26, 2007 [Complaint, at Exs. "A41" through "A45"j. On March 30, 2007, fourdays after Exs. "A41" through "A45" were printed, W. Halder wrote to Clerk Fuerstrequesting a change of address to his current address [see, certified copy of Mr. Halder'snotification to Clerk Fuerst of his change of address, attached to Clerk Fuerst's motion asExhibit 3; and, Supp., at p. 3; and, certified copy of an updated docket evidencing the factthat W. Halder's request for a change of address was docketed on April 10, 2007,attached to Clerk Fuerst's motion as Ex. 4, at p. 7; aiid, Supp., at p. 10].

' December 4, 2006, was within the three day period set forth in Civ.R. 58(B).Joumalization occurred on November 29, 2006, a Wednesday. Three days afterjournalization was December 2, a Saturday. Therefore, pursuant to Civ.R. 6(A), noticewas properly served on Monday, December 4, 2006.

3

Supp., at p. 1]. This was the most current address on the docket at the time the "post

card" notice was served [Complaint, at Ex. "A45"; and, motion, at Ex. 2, included in

Supp., at p. 2]. Thus, as of December 4, 2006, the last known address for Mr. Halder

was the 1918 Coltman Road address to which Clerk Fuerst sent the notice. 4 The "post

card" notice contained the phrase: "Pltf. Motion #2010406, Filed 11-13-06, Motin [sic]

denied. Vol. 3733 Page 0020 Notice Issued" [motion, at Ex. 1; and, Supp., at p. 1]. ,

Clerk Fuerst's office journalized the trial court's joumal entry and noted "Notice

Issued" on the docket [Complaint at ¶8; and, Exhibit "A41"]. Mr. Halder claims that he

never received said notice.

G. Clerk Fuerst's March 29, 2007, Service of a Copy of the Docketon Mr. Halder

On March 29, 2007, pursuant to his request, Mr. Halder received from Clerk

Fuerst's office a copy of the trial court's docket. The docket contains the following

entry:

11/29/2006 P JE Pltf. Motion #2010406, filed 11-13-06, Motin[sic] for Relief From Judgment, is Hereby Denied. Vol. 3733 Page0020 Notice Issued.

Complaint at ¶12, and, at Exhibit "A41"; and, Mr. Halder's Merit Brief at p. 10-

11, ¶ 32.

° Mr. Halder makes much of the fact that the Cuyahoga County Clerk of Court'soffice returned the exhibits attached to his Civ.R. 60(B) motion to his current address,while 20 days later, mailed the notice of the denial of his motion to the address set forthon the docket of the case [Mr. Halder's Merit Brief, at p. 18]. Clearly, a deputy clerkassigned to receive filings by mail and return those which, for whatever reason, must bereturned will look at the return address provided with the mailing and return the filings tothat address. When an entry is received by the Clerk's office from a trial court judge,however, it is received by a different clerk, who enters the data in the docket computersystem, wbich then automatically sends out the postcard notice - but only to the addressthat is in the system. Without a written notice informing the Clerk's office of a change ofaddress, the notice goes out to the most current address in the system.

4

H. Mr. Halder's March 30, 2007 Notification to Clerk Fuerst ofhis June 1, 2006, Change of Address

On March 30, 2007, Mr. I-lalder wrote to Clerk Fuerst notifying him of Mr.

Halder's change of address [motion, at Ex. 3; and, Supp., at p. 3]. On April 10, 2007,

Clerk Fuerst's office docketed said notification [motion, at Ex. 4, p. 7; and, Supp., p. 10].

1. Clerk Fuerst's April 27, 2007, Service of a Certified Copy ofthe Trial Court's Decision on Mr. Halder

Mr. Hal.der avers, at ¶8 of the "Affidavit of Biswanath Halder in Support of Writ

of Mandamus", that on April 27, 2007, he received from Clerk Fuerst a certified copy of

the trial court's denial of his Civ.R. 60(B) motion:

25-Apr-2007 (Wed); Halder received from the Clerk of Courts acertified copy of the court order dated November 29, 2006 denyingPlaintiff's Civ.R. 60(B) Motion for Relief from Judgment (Exhibit"ASO").

See, also, Mr. Halder's Merit Brief, at p. 11, ¶¶ 34 and 36.

Thus, Clerk Fuerst has already completed, on three separate occasions, the act for

which Mr. Halder seeks a writ of mandamus.

IL Argument In Support of Propositions of Law

Proposition of Law No. 1: Mandamus will not issue to compel an actthat has already been performed.

Mandamus is an extraordinary remedy, to be issued with great caution and

discretion and only when the right is clear. It sbould not issue in doubtful cases. State ex

rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 166, 365 N.E.2d 1; State ex rel. Gilbert

v. Cincinnati, lst Dist. No. C-070166, 2007-Ohio-6332, at ¶19; State ex rel. Rittner v.

Bumb, 6th Dist. No. F-07-017, 2007-Ohio-5319, at ¶6; Newell v. Gaul, 8°i Dist. No.

5

90295, 2007-Ohio-5332, at ¶5; and, State ex rel. Aliane v. Sheward, 10U' Dist. No. 02AP-

949, 2003-Ohio-6554, at ¶6.

A corollary to the above stated principles is that mandamus will not issue to

compel an act that has already been performed. State ex rel. Smith v. Fuerst, 89 Ohio

St.3d 456, 457, 732 N.E.2d 983, 2000-Ohio-218, is similar to the instant one, albeit in the

context of a criminal case. In Smith, a prisoner claimed that he had not received a copy

of a journal entry dismissing his petition for postconviction relief that Clerk Fuerst had

served on him. For this reason, he sought a writ of mandamus to compel Clerk Fuerst to

serve a new notice by certified mail. This Court ruled that Clerk Fuerst had complied

with his duty to serve the entry when he mailed the notice of the dismissal to the inmate

and noted in the docket that service had been made. Tlierefore, mandainus would not

issue to compel Clerk Fuerst to perform an act that he had already performed:

Fuerst mailed notice of the October 17, 1996 entry to Smith. UnderCiv.R. 5(B), service was complete upon mailing. And Fuerst notedin the docket that service had been made. Therefore, Fuerstcomplied with his duty to serve the entry on Smith, and mandamuswill not issue to compel an act that has already been performed.State ex rel. Wilson v. Sunderland (2000), 87 Ohio St.3d 548, 548-549, 721 N.E.2d 1055, 1056; see, also, Atkinson v. Grumman OhioCorp. (1988), 37 Ohio St.3d 80, 523 N.E.2d 851, paragraph two ofthe syllabus. (Emphasis added.)

See, also, State ex rel. Howard v. Doneghy, 102 Ohio St.3d 355, 356, 810 N.E.2d

958, 2004-Ohio-3207, at ¶6; State ex rel. Nelson v. Russo, 89 Ohio St.3d 227, 228, 729

N.E.2d 1181, 2000-Ohio-141; and, State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313,

318, 725 N.E.2d, 663, 2000-Ohio-335.

The relief requested by Mr. Halder is that this Court order Clerk Fuerst to serve

upon Mr. Halder the notice required by Civ.R. 58(B) [Complaint at ¶¶ 1,14, 18-20, and

6

ad damnum clause, at subparagraph A]. However, it is undisputed that Clerk Fuerst has

already served Relator with notice of the trial court's judgment on three separate

occasions.

As alleged in his Complaint, Mr. Halder was incarcerated at the Mansfield

Correctional Institution on June 1, 2006, six (6) months prior to the judgment and notice

thereof being served on him at his home address [Complaint, at ¶ 14]. Moreover, it is

undisputed that Mr. Halder did not inform the trial court or Clerk Fuerst's office of his

change of address until April 10, 2007, approximately four (4) months after Clerk Fuerst

first served the notice on Mr. Halder. Thus, Mr. Halder was not residing at the last

known address listed on the doclcet at the time that Clerk Fuerst first served him with

notice.5 Civ. R. 58(B) provides in pertinent part: "Upon serving the notice and notation

of the service in the appearance docket, the ser-vice is complete." (Emphasis added.)6

Mr. Halder does not dispute the fact that he failed to notify the clerk's office of

his change of address prior to Clerk Fuerst serving the notice. The responsibility for

informing a trial court and/or the clerk of court's office of a party's change of address,

however, falls squarely on the party. This rule applies to pro se litigants:

... [I]t has been expressly held that a pro se litigant has theresponsibility to keep the trial court informed as to any changes inher address. Marshall v. Staudt (Feb. 1, 1999), Stark App.No.1998CA00177, unreported, 1999 Ohio App. LEXIS 762.Given that informing the trial court of a new address is relativelysimple, it follows that the burden of satisfying this requirement

5 As set forth above, Clerk Fuerst served Mr. Halder on two other occasions withnotice of the trial court's denial of his Civ.R. 60(B) motion - on March 29, 2007, whenMr. Halder received from Clerk Fuerst a copy of the docket containing the entry denyinghis motion, and April 27, 2007, when Mr. Halder received from Clerk Fuerst a certifiedcopy of the actual court order denying his motion.6 Pursuant to Civ.R. 5(B): "Service upon the ... party shall be made by ... mailingit to the last known address of the person to be served ...."

7

cannot be shifted to the opposing party or the trial court.(Emphasis added.)

Nalbach v. Cacioppo, 11°i Dist. No. 2001-T-0062, 2002-Ohio-53. See, also, Robb v.

Smallwood, 165 Ohio App.3d 385, 846 N.E.2d 878, 2005-Ohio-5863, at ¶11:

A party bears the burden of formally notifying the court of achange of address; the clerk is not charged with the duty ofperusing the record to ensure that a party`s mailing address hasnot changed. See Bartholomew Builders, Inc. v. Spiritos, 2005-Ohio-1900, 2005 WL 940896, at ¶ 24, citing Nalbach v. Cacioppo(Jan. 11, 2002), 11th Dist. No. 2001-T-0062, 2002 WL 32704, at*6. See, also, Marshall v. Staudt (Feb. 1, 1999), Stark Co.App. No.1998CA00177, 1999 WL 100373, ("a pro se litigant has anobligation to keep the trial court informed of any change ofaddress"). (Emphasis added.)

and, Leader Insurance Co. v. Moncrief, 10h Dist. No. 05AP-1289, 2006-Ohio-4232, at

¶39:

While appellants used at least two of these addresses in their pro sefilings with the court, the record contains no evidence thatappellants ever notified the court of a change of address. ... [A]party bears the burden of notifying the court formally of a changeof address, and appellants did not do so here. (Emphasis added.)

Clerk Fuerst complied with his duties [Supp., at pp. 1 and 9]. Service was

complete when Clerk Fuerst mailed the notice to Mr. Halder's last known address and

noted said service on the docket [Civ.R. 5(B) and 58(B)]. For this reason, mandamus

will not issue [State ex rel. Smith v. Fuerst, 89 Ohio St.3d 456, 457, 732 N.E.2d 983,

2000-Ohio-218], and Mr. Halder's case is moot [State ex rel. Wilson v. Sunderlanc^ 87

Ohio St.3d 548-549, 721 N.E.2d 1055, 2000-Ohio-479].

8

Proposition of Law No. 2: Mandamus will not issue when a relator hasan adequate remedy at law.

The requisites for mandamus are clear:

Mandamus should issue in this case only if appellant shows (1)that appellant has a clear legal right to the relief requested; (2) thatappellee is under a clear legal duty to perform the requested act;and (3) that appellant has no plain and adequate remedy in theordinary course of law. State ex rel. Middletown Bd. of Edn. v.Butler Cty. Budget Comm. (1987), 31 Ohio St.3d 251, 253, 31OBR 455, 456, 510 N.E.2d 383, 384, citing State ex rel.Westchester v. Bacon (1980), 61 Ohio St.2d 42, 15 0.O.3d 53, 399N.E.2d 81, paragraph one of the syllabus.

State ex rel Ney v. Niehaus (Ohio, 1987), 33 Ohio St.3d 118, 118-119; 515 N.E.2d 914.

See, also, State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 177-178, 631

N.E.2d 119; and, Pannetta v. Euclid Police Dept. (1989), 43 Ohio St.3d 157, 158, 541

N.E.2d 49.

In this case, Mr. Halder has, and/or has unsuccessfnlly invoked, an adequate

reinedy in the ordinary course of the law. As noted by the appellate court: "Finally,

Halder possesses an adequate remedy at law, which prevents this court from issuing a

writ of mandamus. Halder may employ a Civ.R. 60(B)(5) motion for relief from

judgment to demonstrate nnproper service of the denial of his original motion for relief

from judgment. State ex rel. Hartness v. Gaul (Sept. 27, 2000), Cuyahoga App. No.

78392." State ex rel. Halder v. Fuerst, 8ffi Dist. No. 90442, 2007-Ohio-5938, at ¶7.

Much of Mr. Halder's factual recitation deals with the various steps he has taken,

so far unsuccessfully, to remedy what he alleges to be Clerk Fuerst's error. To date, Mr.

Halder has: 1) filed a Civ.R. 60(A) motion with the trial court seeking to have the notice

of the trial court's denial of Mr. Halder's Civ.R. 60(B) motion reissued [Mr. Halder's

Merit Brief, at 11331, which was denied by the trial court [Id., at ¶35, no appeal taken

9

from said dismissal]; 2) attempted to appeal the trial court's denial of his Civ.R. 60(B)

motion [Id., ¶ 37], which was dismissed by the appellate court, sua sponte [Id., at ¶ 40, no

appeal taken from said dismissal]; and, 3) filed a "Civ.R. 6(B)(2) Motion to the Court of

Common Pleas asking for an extension of time for file a notice of appeal appealing the

denial of Plaintiff's Civ. R. 60(B) Motion ...." [Id., at ¶ 41], which was denied [Id., at ¶

43, no appeal taken].

As this Court held in the analogous case of State ex rel Smith v. Fuerst, 89 Ohio

St.3d 456, 457, 732 N.E.2d 983, 2000-Ohio-218, the fact that Mr. Halder has

unsuccessfully invoked alternative remedies does not entitle him to mandamus:

In addition, Smith had adequate remedies at law by a Civ.R. 60(B)motion for relief from judgment or appeal to raise his claim that hewas entitled to additional time to perfect his appeal from theOctober 17, 1996 judgment. See State ex rel. Thomson v. Doneghy(1997), 80 Ohio St.3d 222, 685 N.E.2d 537; Defini v. Broadview

Hts. (1991), 76 Ohio App.3d 209, 214, 601 N.E.2d 199, 202.

Finally, the fact that Smith may have, as he claims on appeal,already unsuccessfully invoked an alternative remedy to raise thisissue does not entitle him to extraordinary relief in mandamus."Where a plain and adequate remedy at law has beenunsuccessfully invoked, a writ of mandamus will not lie torelitigate the same issue." State ex rel Sampson v. Parrott (1998),82 Ohio St.3d 92, 93, 694 N.E.2d 463. (Emphasis added.)

See, also, State ex rel. Zimmerman v. Tompkins. 75 Ohio St.3d 447, 449, 663 N.E.2d 639,

1996-Ohio-21 1: "Where a plain and adequate remedy at law has been unsuccessfully

invoked, a writ of mandamus will not lie to relitigate the same issue. State ex rel. Nichols

v. Cuyahoga Cty. Bd of Mental Retardation & Dev. Disabilities (1995), 72 Ohio St.3d

205, 209, 648 N.E.2d 823, 827"; and, State ex rel. Tran v. McGrath (1997), 78 Ohio

St.3d 45, 47, 676 N.E.2d 108: "... where a plain and adequate remedy at law has been

unsuccessfully invoked, a writ of mandamus will not lie to relitigate the same issue."

10

Clearly, Mr. Halder has, or has unsuccessfully invoked, adequate remedies at law.

For this reason, Mr. Halder is not entitled to his requested writ of mandamus.

III. Conclusion

For all of the foregoing reasons, Clerk Fuerst respectfully requests that this Cour-t

affirm the appellate court's grant of summary judgment in his favor.

Respectfully submitted,

WILLIAM D. MASON, ProsecutingAttorney of Cuyahoga County

By:FRED$RICK W. WI1A4 (0010988)Assistant Prosecuting Attor yCuyahoga County Prosecutor's OfficeJustice Center, Courts Tower1200 Ontario Street, 8th FloorCleveland, Ohio 44113(216) 443-7849/ Fax (216) 443-7602ATTORNEY FOR RESPONDENT

CERTIFICATE OF SERVICE

A copy of the foregoing "Merit Brief of Respondent/Appellee Gerald E. Fuerst,

Cuyahoga County Clerk of Courts" has been served upon the following, on thi

of February, 2008, by ordinary U.S. mail:

Biswanath Halder, pro seA501980P.O. Box 788Mansfield, Ohio 44901-0788

Frederick W. WhatlAssistant Prosecuting Attomey

ll