State ex rel. Wood v. Olsztyn ( 2012 )

[Cite as State ex rel. Wood v. Olsztyn, 2012-Ohio-607.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97928
STATE OF OHIO, EX REL.,
JOHN WOOD
RELATOR
vs.
MAGISTRATE CHRISTOPHER E. OLSZTYN,
ET AL.
RESPONDENTS
JUDGMENT:
WRIT DENIED
Writ of Prohibition
Motion No. 452171
Order No. 452210
RELEASE DATE: February 10, 2012
FOR RELATOR
John Wood
281 Corning Drive
Bratenahl, OH 44108
ATTORNEY FOR RESPONDENTS
William D. Mason
Cuyahoga County Prosecutor
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} On February 9, 2012, the relator, John Wood, commenced this prohibition
action against Magistrate Christopher Olsztyn and Judge Peter J. Corrigan, to prohibit
them from exercising jurisdiction over a discovery dispute and order, which would
require Wood to disclose material he claims is protected by the client-counsel privilege.
Wood maintains that the respondents should not exercise jurisdiction over that discovery
matter because Wood filed a notice of appeal with the Supreme Court of Ohio in
December 2011. Wood also seeks an alternative writ and an order staying discovery.
For the following reasons, this court dismisses the applications for a writ of prohibition
and an alternative writ of prohibition.
{¶2} In the underlying case, Wood v. Fillinger, Cuyahoga County C.P. No.
CV-713348, the magistrate ordered Wood, an attorney, to explain why he did not have a
conflict of interest in this case. In response, Wood filed materials under seal. Then,
other parties to the underlying case sought discovery of those materials and filed motions
to compel. Wood filed a motion for confidentiality, which the trial court denied on
July 7, 2011. Wood appealed that decision to this court, Wood v. Fillinger, 8th Dist. No.
97032. This court dismissed the appeal for lack of a final, appealable order. Wood
moved for reconsideration, which this court denied. He then appealed to the Supreme
Court of Ohio, Case No. 11-2017. That court has not yet ruled on the memorandum in
support of jurisdiction.
{¶3} On January 23, 2012, the respondent magistrate ordered Wood to provide
discovery relating the disputed material by Monday, February 13, 2012. Wood filed a
motion to vacate that order, but the trial court has not yet ruled on the motion. Wood
then commenced this prohibition action.
{¶4} The principles governing prohibition are well established. Its requisites
are (1) the respondent against whom it is sought is about to exercise judicial power, (2)
the exercise of such power is unauthorized by law, and (3) there is no adequate remedy at
law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989).
Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the
cause that it is attempting to adjudicate or the court is about to exceed its jurisdiction.
State ex rel. Ellis v. McCabe , 138 Ohio St. 417, 35 N.E.2d 571 (1941), paragraph three of
the syllabus. “The writ will not issue to prevent an erroneous judgment, or to serve the
purpose of appeal, or to correct mistakes of the lower court in deciding questions within
its jurisdiction.” State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64,
65, 90 N.E.2d 598 (1950). Furthermore, it should be used with great caution and not
issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common
Pleas, 137 Ohio St. 273, 28 N.E.2d 27 (1940), and Reiss v. Columbus Municipal Court,
76 Ohio Law Abs. 141, 145 N.E.2d 447 (1956). Nevertheless, when a court is patently
and unambiguously without jurisdiction to act whatsoever, the availability or adequacy of
a remedy is immaterial to the issuance of a writ of prohibition. State ex rel. Tilford v.
Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988), and State ex rel. Csank v. Jaffe, 107
Ohio App.3d 387, 668 N.E.2d 996 (8th Dist.1995). However, absent such a patent and
unambiguous lack of jurisdiction, a court having general jurisdiction of the subject matter
of an action has authority to determine its own jurisdiction. A party challenging the
court’s jurisdiction has an adequate remedy at law via appeal from the court’s holding
that it has jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of Edn. v. Portage
Cty. Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997), and State ex
rel. Bradford v. Trumbull Cty. Court, 64 Ohio St.3d 502, 1992-Ohio-116, 597 N.E.2d
116. Moreover, the court has discretion in issuing the writ of prohibition. State ex rel.
Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).
{¶5} Wood does not cite any authority for the proposition that the appeal to the
supreme court divests the trial court of jurisdiction. Rather, he argues that “all matters
ordered therein may be affected by a ruling of the Ohio Supreme Court in the matter now
before it * * *.” (Paragraph 21 of the Complaint.)
{¶6} In Ellison v. Burnside, 79 Ohio App.3d 542, 607 N.E.2d 891 (1992), this
court addressed a nearly identical issue. The relator had appealed an order that
compelled his deposition despite a claim of attorney conflict of interest. This court
dismissed the appeal for lack of a final, appealable order, and Ellison appealed to the
Supreme Court of Ohio. While the appeal was pending and before the supreme court
had ruled on the motion to certify the record, Ellison sought a writ of prohibition to
prevent the deposition. This court sua sponte dismissed the complaint because Ellison
had not established that the trial court was patently and unambiguously without
jurisdiction. Indeed, the Supreme Court of Ohio has indicated that the lower courts
retain jurisdiction over the matter until it grants the motion to certify the record or
otherwise accepts the appeal. State v. Murphy, 49 Ohio St.3d 293, 551 N.E.2d 1292(1990); Cincinnati v. Alcorn, 122 Ohio St. 294, 171 N.E. 330 (1930). “The jurisdiction
of the Court of Appeals over a cause pending or determined in such court is not
suspended by the mere filing of a motion in this court to require such Court of Appeals to
certify its record.” Id. at paragraph three of the syllabus. See also Bell v. Mt. Sinai
Med. Ctr., 8th Dist. No. 63230, 1994 WL 245900 (June 2, 1994); and Campbell v.
Campbell, 6th Dist. L-90-105, 1991 WL 127573 (July 3, 1991).
{¶7} Accordingly, this court denies the application for a writ of prohibition, the
application for an alternative writ, and the motion for stay. Relator to pay costs. This
court directs the Clerk of the Eighth District Court of Appeals to serve upon the parties
notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).
{¶8} Writ denied.
________________________________
SEAN C. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR