Minnillo v. Friedland ( 2014 )

[Cite as Minnillo v. Friedland, 2014-Ohio-33.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100359
MICHAEL MINNILLO, ET AL.
RELATORS
vs.
HONORABLE CAROLYN FRIEDLAND, ET AL.
RESPONDENTS
JUDGMENT:
WRIT DENIED
Writ of Prohibition
Motion Nos. 469029 and 469479
Order No. 470544
RELEASE DATE: January 6, 2014
ATTORNEY FOR RELATORS
James R. Douglass
James R. Douglass Co., L.P.A.
4600 Prospect Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR RESPONDENTS
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Nora E. Graham
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} On September 5, 2013, the relators, Michael and Deborah Minnillo,
commenced this prohibition action against the respondents, Judge Carolyn Friedland and
the Cuyahoga County Common Pleas Court, to prevent the respondents from continuing
to exercise jurisdiction over the underlying case, U.S. Bank Natl. Assn. v. Minnillo,
Cuyahoga C.P. No. CV-778795. The Minnillos claim that under the termination of
jurisdiction principle, the respondents lost all jurisdiction when Judge Friedland
dismissed the underlying case without prejudice for failure to prosecute. The Minnillos
also requested an alternative writ. On October 11, 2013, the respondents moved for
summary judgment. On October 29, 2013, the Minnillos filed their combined brief in
opposition and their own motion for summary judgment, and on November 18, 2013, the
respondents filed their combined brief in opposition and reply brief. On December 8,
2013, the Minnillos filed a combined sur-reply brief and reply brief to the brief in
opposition to their motion for summary judgment. For the following reasons, this court
grants the respondents’ motion for summary judgment, denies the Minnillos’ motion for
summary judgment and denies the applications for a writ of prohibition and an alternative
writ.
{¶2} The underlying case is a commercial foreclosure action on an apartment
building owned by the Minnillos. On April 3, 2012, the respondent judge entered an
order required in residential foreclosures that a certain attorney’s affidavit must
accompany a summary judgment motion; if the affidavit was not submitted, the trial court
would dismiss the case. The respondent judge also appointed a receiver for the
apartment building. The Minnillos appealed that decision, and this court affirmed the
appointing of a receiver. U.S. Bank Natl. Assn. v. Minnillo, 8th Dist. Cuyahoga No.
98593, 2012-Ohio-5188.
{¶3} After the case returned to the trial court, the respondent judge issued another
order on December 13, 2012, requiring the plaintiff’s lawyer to move for summary
judgment and submit “an attorney’s affidavit that fully complies with the court’s standing
orders as outlined on the county website.” The order further warned that the failure to
do so could submit the case to dismissal without prejudice for failure to prosecute. This
referred to the affidavit required in residential foreclosures. On January 14, 2013, the
plaintiff moved for summary judgment, but did not include the required attorney’s
affidavit.
{¶4} Thus, on February 27, 2013, the respondent judge dismissed the underlying
case without prejudice for failure to file the required affidavit. On March 7, 2013, the
plaintiff’s attorney moved to vacate the dismissal order pursuant to Civ.R. 60(A).1 The
plaintiff’s lawyer argued that ordering the affidavit required in a residential foreclosure in
a commercial foreclosure action was an oversight that resulted in an erroneous dismissal.
The trial court, pursuant to Civ.R. 60(A), had the power to correct this inadvertent
mistake.
1 Civ.R. 60(A) provides in pertinent part as follows: “Clerical mistakes in judgments, orders
or other parts of the record and errors therein arising from oversight or omission may be corrected by
the court at any time on its own initiative or on the motion of any party * * *.”
{¶5} On March 21, 2013, the respondent judge granted the motion to vacate and
reinstated the case. The judge stated: “The within property is commercial in nature and
thus plaintiff was not required to file an attorney affidavit per the court’s standing
orders.”2 The Minnillos then brought this prohibition action to prevent the trial court
from exercising any further jurisdiction over the underlying case, because the trial court
lost all jurisdiction when it dismissed the case.
{¶6} 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 641 (1940).
2 The Minnillos appealed the order granting the motion to vacate the dismissal and to
reinstate the foreclosure case. U.S. Bank Natl. Assn. v. Minnillo, 8th Dist. Cuyahoga No. 99725.
On July 30, 2013, this court dismissed the appeal for lack of jurisdiction; the dismissal without
prejudice did not present a final, appealable order.
{¶7} 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 an 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).
{¶8} The termination of jurisdiction principle is that when a case is dismissed or
reaches final judgment, the trial court loses authority to proceed with any aspect of the
case. Furthermore, prohibition is an appropriate remedy to enforce the termination of
jurisdiction principle. State ex rel. Rice v. McGrath, 62 Ohio St.3d 70, 577 N.E.2d 1100(1991). Therefore, the Minnillos argue that when Judge Friedland dismissed the case
without prejudice for want of prosecution, she lost all authority to do anything else on the
case, including ruling on a motion to vacate the dismissal pursuant to Civ.R. 60(A).3
The Minnillos continue that Civ.R. 60(A) is not even applicable, because discerning
whether this was a residential or commercial foreclosure and alleviating the plaintiff of
the need to file the attorney affidavit were not clerical errors. Rather, such errors were
3 Civ.R. 60(B) applies to judgments, i.e., final appealable orders. The subject dismissal
was without prejudice and not a final, appealable order.
substantive errors of judgment and beyond the scope of Civ.R. 60(A). The Minnillos
conclude that because the dismissal deprived the respondents of further jurisdiction, the
writ of prohibition should issue.
{¶9} However, the courts of Ohio have recognized that in certain instances a trial
court retains the jurisdiction to vacate a dismissal premised on errors “arising from
oversight and omission.” In State ex rel. Henry v. Britt, 67 Ohio St.2d 71, 74, 424
N.E.2d 297 (1981), the Supreme Court clarified the scope of Civ.R. 60(A). Citing 6A
Moore, Federal Practice, Paragraph 60.08, the court ruled that Civ.R. 60(A) permits the
trial court to correct clerical mistakes and errors of oversight and omission.
{¶10} In Logsdon v. Nichols, 72 Ohio St.3d 124, 127, 647 N.E.2d 1361 (1995), the
Supreme Court of Ohio held that “the trial court retains, at least in some instances, the
jurisdiction to deal with a dismissal entry improperly filed. Given * * * that the
dismissal occurred by * * * the court’s actions under Civ.R. 41(A)(2), the trial court
retained the jurisdiction to sua sponte vacate its erroneously entered dismissal.” In
Logsdon, mere days before trial, the plaintiffs in a personal injury action asked the court
to dismiss their case without prejudice pursuant to Civ.R. 41(A)(2), so they could refile
the action with the aid of the savings statute; the plaintiffs had already dismissed their
case once without prejudice. The trial court granted the plaintiffs’ request and dismissed
their case without prejudice. Approximately two hours later, the judge vacated the
dismissal sua sponte, because he had not given the defendants the opportunity to respond.
The judge then set the case for trial. On the date of trial, neither the plaintiffs nor their
attorney appeared; thus, the trial court dismissed the case with prejudice.
{¶11} On appeal, the plaintiffs argued that pursuant to the termination of
jurisdiction principle, the trial court lacked the jurisdiction under Civ.R. 60(A) to vacate
the dismissal without prejudice. The Supreme Court of Ohio rejected this argument
noting that the judge had the jurisdiction to correct the reversible error of improperly
dismissing the case in the first instance.
{¶12} Similarly, in Britt, 67 Ohio St.2d 71, 424 N.E.2d 297 (1981), the Supreme
Court of Ohio ruled that a trial court retains jurisdiction to rule on a Civ.R. 60(A) motion,
after an appeal had ordered the trial court to reinstate a plaintiff’s voluntary dismissal
without prejudice. Specifically, the Supreme Court of Ohio ruled that a writ of
prohibition would not issue to prevent the trial court from ruling on the Civ.R. 60(A)
motion.
{¶13} This court has ruled that a trial court may consider a Civ.R. 60(A) motion to
vacate after it has dismissed a case pursuant to a motion to dismiss on the statute of
limitations. The plaintiff argued that the dismissal should be vacated because the
defendant had stipulated to an extension of time for the plaintiff to respond. This court
affirmed the denial of the Civ.R. 60 motion because the plaintiff had not properly invoked
the rule; this court did not base its decision on lack of jurisdiction. Epstein v. Louis, 8th
Dist. Cuyahoga No. 97071, 2012-Ohio-274.
{¶14} In Horman v. Veverka, 30 Ohio St.3d 41, 506 N.E.2d 218 (1987), the
Supreme Court of Ohio ruled that a trial court’s order vacating a dismissal and reinstating
the case was within the trial court’s inherent power. The Ninth District followed
Horman in Shoup v. Holman, 81 Ohio App.3d 127, 610 N.E.2d 502 (9th Dist.1991). In
that case, the trial court dismissed the case without prejudice because it believed that the
parties had settled the case. The trial court granted a motion to vacate when the plaintiff
informed the court that the agreement had “fallen through” and then granted a default
judgment. After garnishment proceedings had begun, the defendant sought to vacate the
judgment on the grounds that the trial court lacked jurisdiction to reinstate the case. On
appeal, the Ninth District held that the trial court had the inherent power to vacate a
dismissal and reinstate the case.
{¶15} In reviewing Civ.R. 60(A) and the above cases, the court concludes that the
respondents had jurisdiction to consider the plaintiffs’ Civ.R. 60(A) motion and vacate its
dismissal without prejudice. The inclusion of requirements for a residential foreclosure
in a commercial foreclosure case was an oversight that resulted in an erroneous order that
may be corrected pursuant to Civ.R. 60(A). Such inclusion was at least as much of an
oversight as Logsdon’s failure to give notice. Logsdon, Henry, Epstein, Horman, and
Shoup confirm that the trial court had the jurisdiction to rule on that motion or to vacate
its dismissal. At the very least, those cases clothed the respondents with sufficient
jurisdiction to determine the trial court’s jurisdiction, precluding the issuance of a writ of
prohibition. Furthermore, the procedural posture of Logsdon shows that there is an
adequate remedy at law through appeal. In that case, the plaintiff was able to secure
review of the trial court’s jurisdiction under Civ.R. 60(A) on appeal, after the trial court
had dismissed the case with prejudice. The court further notes that this resolution will
allow the parties and the court to resolve the underlying case on the merits in a more
expeditious manner.
{¶16} Accordingly, this court grants the respondents’ motion for summary
judgment and denies the applications for a writ of prohibition and an alternative writ.
Relators to pay costs. This court directs the clerk of court to serve all parties notice of
this judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶17} Writ denied.
EILEEN T. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, P.J., and
TIM McCORMACK, J., CONCUR