State ex rel. Jones v. Paschke ( 2021 )


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  • [Cite as State ex rel. Jones v. Paschke, 
    2021-Ohio-2889
    .]
    IN THE COURT OF APPEALS OF OHIO
    ELEVENTH APPELLATE DISTRICT
    GEAUGA COUNTY
    STATE OF OHIO ex rel.                                      CASE NO. 2021-G-0013
    JEREMY J. JONES,
    Relator,                                  Original Action for
    Writ of Prohibition
    -v-
    THE HONORABLE
    JUDGE CAROLYN J. PASCHKE,
    Respondent.
    PER CURIAM
    OPINION
    Decided: August 23, 2021
    Judgment: Petition dismissed
    Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., LPA, 55 Erieview Plaza, 5th
    Floor, Cleveland, OH 44114 (For Relator).
    James R. Flaiz, Geauga County Prosecutor, and Linda M. Applebaum, Assistant
    Prosecutor, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For
    Respondent).
    PER CURIAM.
    {¶1}     Relator, Jeremy J. Jones (“Mr. Jones”), filed a verified petition for writ of
    prohibition against respondent, the Honorable Judge Carolyn J. Paschke (“Judge
    Paschke”), to prevent Judge Paschke from exceeding her jurisdiction in the matter of
    Molly A. Jones v. Jeremy J. Jones in the Geauga County Court of Common Pleas by
    “improperly rubber stamping the decisions and orders of Magistrate Kevin L. Starrett and
    authorizing the repeated violations of Civil Rule 53.”
    {¶2}   Judge Paschke moved to dismiss Mr. Jones’s petition pursuant to Civ.R.
    12(B)(6). Mr. Jones filed a brief in opposition, and Judge Paschke filed a reply brief.
    {¶3}   We find that Mr. Jones has an adequate remedy at law by way of direct
    appeal and grant Judge Paschke’s motion to dismiss.
    Factual and Procedural History
    {¶4}   In his petition, Mr. Jones alleges that he is the defendant in the divorce
    proceedings known as Molly A. Jones v. Jeremy J. Jones, which are currently pending
    before Judge Paschke in Geauga County Court of Common Pleas case no. 19-DC-
    000752.
    {¶5}   From September 19, 2019, to January 1, 2021, Magistrate Bruce C.
    Smalheer (“Magistrate Smalheer”) conducted all hearings, ruled upon the parties’
    motions, and issued interim orders. In January 2021, Magistrate Smalheer retired, and
    Magistrate Kevin L. Starrett (“Magistrate Starrett”) began issuing orders and conducting
    hearings in the proceedings. According to Mr. Jones, Judge Paschke did not issue a
    judgment entry assigning the case to Magistrate Starrett pursuant to Civ.R. 53.
    {¶6}   Mr. Jones further alleges that Judge Paschke has disregarded and
    continues to disregard “the procedures and mandates of Civ.R. 53” by “rubber stamping”
    Magistrate Starrett’s rulings and by authorizing him to execute judgment entries.
    Specifically, Mr. Jones cites four allegedly improper judgment entries: three judgment
    entries that were executed by both Judge Paschke and Magistrate Starrett, including one
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    Case No. 2021-G-0013
    relating to a telephone pretrial conference in which Judge Paschke did not personally
    participate, and one judgment entry executed solely by Magistrate Starrett.
    {¶7}   Mr. Jones requests a writ of prohibition “directing and restraining” Judge
    Paschke from “rubber stamping” Magistrate Starrett’s rulings and issuing judgment
    entries in violation of Civ.R. 53.
    {¶8}   Judge Paschke filed a motion to dismiss and memorandum in support. She
    disputes Mr. Jones’s allegations that she improperly “rubber stamped” orders and
    contends that Mr. Jones has an adequate remedy at law through appeal.
    {¶9}   Mr. Jones filed a brief in opposition to Judge Paschke’s motion to dismiss.
    He contends that he does not have an adequate remedy at law because the orders at
    issue are not final, appealable orders over which this court has jurisdiction. He further
    contends that an appeal following a final adjudication on the merits is not an adequate
    remedy when Judge Paschke, as “the elected official assigned to his divorce
    proceedings,” has “abdicated her role as the ultimate fact finder” in favor of Magistrate
    Starrett.
    Standard of Review
    {¶10} Dismissal of a petition pursuant to Civ.R. 12(B)(6) for failure to state a viable
    claim is warranted “when the nature of the relator’s allegations are such that, even if those
    allegations are construed in a manner most favorable to the relator, they are still
    insufficient to demonstrate that he will be able to prove a set of facts under which he
    would be entitled to the writ.” Hamilton v. Collins, 11th Dist. Lake No. 2003-L-106, 2003-
    Ohio-5703, ¶ 6.
    3
    Case No. 2021-G-0013
    Legal Standards
    {¶11} A writ of prohibition is an extraordinary judicial writ issuing out of a court of
    superior jurisdiction and directed to an inferior tribunal commanding it to cease abusing
    or usurping judicial functions. State ex rel. Tubbs Jones v. Suster, 
    84 Ohio St.3d 70
    , 73,
    
    701 N.E.2d 1002
     (1998). The purpose of a writ of prohibition is to restrain inferior courts
    and tribunals from exceeding their jurisdiction. 
    Id.
     As such, it is an extraordinary remedy
    which is customarily granted with caution and restraint and is issued only in cases of
    necessity arising from the inadequacy of other remedies. 
    Id.
    {¶12} To be entitled to a writ of prohibition, a relator must establish that (1) the
    respondent is about to exercise judicial or quasi-judicial power, (2) the exercise of that
    power is unauthorized by law, and (3) denying the writ would result in injury for which no
    other adequate remedy exists in the ordinary course of law. State ex rel. Bell v. Pfeiffer,
    
    131 Ohio St.3d 114
    , 
    2012-Ohio-54
    , 
    961 N.E.2d 181
    , ¶ 18.
    {¶13} The last two elements can be met by a showing that the trial court “patently
    and unambiguously” lacked jurisdiction. Chesapeake Exploration, L.L.C. v. Oil & Gas
    Comm., 
    135 Ohio St.3d 204
    , 
    2013-Ohio-224
    , 
    985 N.E.2d 480
    , ¶ 11. “Where an inferior
    court patently and unambiguously lacks jurisdiction over the cause, prohibition will lie both
    to prevent the future unauthorized exercise of jurisdiction and to correct the results of
    previous jurisdictionally unauthorized actions.” State ex rel. Stern v. Mascio, 
    81 Ohio St.3d 297
    , 298-299, 
    691 N.E.2d 253
     (1998).
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    Case No. 2021-G-0013
    Law and Analysis
    {¶14} A review of Mr. Jones’s petition demonstrates he cannot establish that
    Judge Paschke “patently and unambiguously” lacks jurisdiction or that he lacks an
    adequate remedy at law.
    {¶15} Mr. Jones does not allege in his petition that Judge Paschke lacks subject
    matter jurisdiction over his divorce proceedings, much less that she “patently and
    unambiguously” lacks jurisdiction. Rather, Mr. Jones contends that Judge Paschke’s
    “conduct” is “outside of the jurisdiction conferred by Civ.R. 53.”
    {¶16} In essence, Mr. Jones is challenging Judge Paschke’s exercise of her
    subject matter jurisdiction. See State v. Harper, 
    160 Ohio St.3d 480
    , 
    2020-Ohio-2913
    ,
    
    159 N.E.3d 248
    , ¶ 26. The Supreme Court of Ohio has recognized “a distinction between
    a court that lacks subject-matter jurisdiction over a case and a court that improperly
    exercises that subject-matter jurisdiction once conferred upon it.” Pratts v. Hurley, 
    102 Ohio St.3d 81
    , 
    2004-Ohio-1980
    , 
    806 N.E.2d 992
    , ¶ 10.
    {¶17} In addition, the cases Mr. Jones cites in support of his petition undermine
    his request for extraordinary relief.
    {¶18} In State ex rel. Lesher v. Kainrad, 
    65 Ohio St.2d 68
    , 
    417 N.E.2d 1382
    (1981), the appellant filed actions in mandamus and prohibition against the trial judge and
    referee for their alleged failure to comply with Civ.R. 53. Id. at 68-69. The Supreme Court
    of Ohio affirmed this court’s dismissal, holding that the “failure * * * to comply with Civ.R.
    53 renders the resulting judgment voidable, and not void.” (Emphasis added.) Id. at 71.
    {¶19} The other cases Mr. Jones cites involved direct appeals rather than
    requests for extraordinary writs. See Davis v. Davis, 6th Dist. Wood No. WD-06-011,
    5
    Case No. 2021-G-0013
    
    2006-Ohio-3384
    ; In re Vitantonio, 11th Dist. Ashtabula No. 91-A-1683, 
    1993 WL 407287
    (Sept. 30, 1993); Haag v. Hagg, 
    9 Ohio App.3d 169
    , 
    458 N.E.2d 1297
     (8th Dist.1983);
    Staggs v. Staggs, 
    9 Ohio App.3d 109
    , 
    458 N.E.2d 904
     (8th Dist.1983). See also State
    ex rel. Banc One Corp. v. Walker, 
    86 Ohio St.3d 169
    , 172, 
    712 N.E.2d 742
     (1999)
    (“Significantly, most of the authorities relied on by appellants were resolved by appeal
    rather than by extraordinary writ”).
    {¶20} This matter is similar to the Supreme Court of Ohio’s decision in State ex
    rel. Nalls v. Russo, 
    96 Ohio St.3d 410
    , 
    2002-Ohio-4907
    , 
    775 N.E.2d 522
    . In that case,
    the relator sought a writ of prohibition to stop the enforcement of an adjudication of
    dependency. Id. at ¶ 13. The relator alleged, among other things, that the order referring
    the case to the magistrate was improper and that the magistrate did not file a separate
    decision before the trial judge issued a ruling. Id. at ¶ 17. The Supreme Court of Ohio
    affirmed the appellate court’s denial of the writ, finding that the trial judge and magistrate
    had “basic jurisdiction over the abuse and dependency proceeding” and that “[p]rohibition
    will not issue as a substitute for appeal to review mere errors in judgment.” Id. at ¶ 28.
    {¶21} As the court has explained, “appeal, not mandamus or prohibition, is the
    remedy for the correction of errors.” State ex rel. Levin v. Sheffield Lake, 
    70 Ohio St.3d 104
    , 109, 
    637 N.E.2d 319
     (1994). Therefore, “‘[e]xtraordinary remedies, i.e., mandamus
    [and] prohibition[,] * * * may not be employed before trial on the merits, as a substitute for
    an appeal for the purpose of reviewing mere errors, or irregularities in the proceedings of
    a court having proper jurisdiction * * *.’” 
    Id.,
     quoting State ex rel. Woodbury v. Spitler, 
    34 Ohio St.2d 134
    , 137, 
    296 N.E.2d 526
     (1973).
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    Case No. 2021-G-0013
    {¶22} Similarly, this court has held that “the failure to comply with Civ.R. 53 will
    permit an appellate court to reverse the judgment of the trial court in situations where
    there was a deviation from the rule and the deviation prejudiced the appellant.” In re
    Bortmas, 11th Dist. Trumbull No. 98-T-0147, 
    1999 WL 959842
    , *2 (Oct. 15, 1999). In
    other words, “[t]he failure to comply with Civ.R. 53 constitutes grounds upon which the
    appellate court may reverse the judgment of the trial court.” Erb v. Erb, 
    65 Ohio App.3d 507
    , 510, 
    584 N.E.2d 807
     (9th Dist.1989).
    {¶23} Although the judgment entries at issue do not appear to be final judgments
    subject to immediate appeal, Mr. Jones may challenge them on appeal following Judge
    Paschke’s issuance of a final judgment. This court has held that an appeal from the
    judgment concluding the case is an adequate legal remedy barring issuance of a writ of
    prohibition. State ex rel. Welt v. Doherty, 11th Dist. Portage No. 2020-P-0018, 2020-
    Ohio-6684, ¶ 21.
    {¶24} Mr. Jones contends that a final adjudication on the merits is not an adequate
    remedy “when the elected official assigned to his divorce proceedings * * * has abdicated
    her role as the ultimate fact finder to the trial court Magistrate in violation of Civ.R. 53.”
    However, this is a legal assertion, not a factual allegation, and Mr. Jones cites no authority
    in support of this proposed distinction.
    {¶25} Accordingly, Mr. Jones can prove no set of facts establishing that Judge
    Paschke “patently and unambiguously” lacks jurisdiction or that he lacks an adequate
    remedy at law.
    {¶26} For the foregoing reasons, Judge Paschke’s motion to dismiss is granted.
    MARY JANE TRAPP, P.J., CYNTHIA WESTCOTT RICE, J., MATT LYNCH, J., concur.
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    Case No. 2021-G-0013
    

Document Info

Docket Number: 2021-G-0013

Judges: Per Curiam

Filed Date: 8/23/2021

Precedential Status: Precedential

Modified Date: 8/23/2021