State Ex Rel. Skyway Investment Corp. v. Ashtabula County Court of Common Pleas

[Cite as State ex rel. Skyway Invest. Corp. v. Ashtabula Cty. Court of Common Pleas, 130 Ohio
St.3d 220, 2011-Ohio-5452.]
THE STATE EX REL. SKYWAY INVESTMENT CORPORATION, APPELLANT, v.
ASHTABULA COUNTY COURT OF COMMON PLEAS, APPELLEE.
[Cite as State ex rel. Skyway Invest. Corp. v. Ashtabula Cty. Court of Common
Pleas, 130 Ohio St.3d 220, 2011-Ohio-5452.]
Common pleas court did not patently and unambiguously lack jurisdiction in
underlying matter—Court of appeals’ judgment denying petition for writs
of prohibition and mandamus affirmed.
(No. 2011-0320—Submitted September 20, 2011—Decided October 27, 2011.)
APPEAL from the Court of Appeals for Ashtabula County, No. 2007-A-0058.
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Per Curiam.
{¶ 1} This is an appeal from a court of appeals judgment denying the
petition of appellant, Skyway Investment Corporation (“Skyway”), for a writ of
prohibition to prevent appellee, Ashtabula County Court of Common Pleas, from
proceeding to place certain property owned by Skyway in receivership and a writ
of mandamus to compel appellee to vacate its orders concerning the property in
an underlying civil case. Because the common pleas court did not patently and
unambiguously lack jurisdiction in the underlying matter, we affirm the judgment
of the court of appeals.
Facts
{¶ 2} In November 1992, the Ashtabula County Court of Common Pleas
entered a judgment in favor of John Poss and against Marilyn Morris in the
amount of $149,750 plus interest in Poss v. Morris, Ashtabula C.P. No. 80956.
When Poss experienced difficulties in enforcing the judgment against Morris, he
filed a forcible-entry-and-detainer action against her.
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{¶ 3} Poss and Morris settled the dispute concerning the enforcement of
the judgment with a July 19, 1993 agreement under which Morris agreed to
convey her property to Poss and Morris would be permitted to remain in a
building on a 2.505-acre tract of the property until January 1, 1994. The parties
specified that the “agreement constitutes a full and complete release between the
parties and John Poss will release his judgment lien and mortgage lien upon
receipt of the deed to the property.” Just a few days before the agreement was
executed, Morris filed a motion in the common pleas court to enforce the
settlement. On September 16, 1993, the common pleas court incorporated the
parties’ settlement agreement into the judgment of the court.
{¶ 4} Morris subsequently filed for bankruptcy in 1995, which resulted
in further litigation regarding the property. The United States Court of Appeals
for the Sixth Circuit held that because of the 1993 judgment in favor of Poss, a
constructive trust had been imposed on the property in his favor, and thus the
property was not affected by Morris’s bankruptcy filing. In re Morris (C.A.6,
2001), 260 F.3d 654.
{¶ 5} In December 2002, Poss filed a motion in the common pleas court
for an order that Morris transfer the property to him as she had agreed.
Arguments on the motion were heard in April 2003. On November 4, 2003,
before the court ruled on Poss’s motion, Morris transferred the property to
Skyway. Skyway’s attorney knew of the previous litigation, but concluded that
Skyway was a bona fide purchaser for value.
{¶ 6} In July 2005, Poss filed a motion to appoint a receiver to take
possession of the property that is the subject of the constructive trust and to
appoint a person pursuant to Civ.R. 70 to execute the conveyance of the property
to him as directed by the court’s September 1993 judgment. In March 2006, the
common pleas court granted the motion and appointed a receiver to take
possession of the property and a person to prepare and execute a deed for the
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January Term, 2011
conveyance of the property to Poss. The court directed service of the judgment
on Skyway and set the matter for a May 2006 hearing at which Skyway could
object to the judgment.
{¶ 7} Skyway entered an appearance in the case on May 10, 2006, and
filed a motion on May 30, 2006, to vacate the judgment. In February 2007, the
common pleas court joined Skyway as a party defendant to the case and set a May
2007 hearing on Skyway’s motion to vacate the judgment. At the hearing,
Skyway claimed for the first time that it was not a party in the case and that the
court lacked subject-matter and personal jurisdiction to enter any order affecting
its purported title to the property it had received from Morris. On May 7, 2007,
the common pleas court rejected Skyway’s jurisdictional argument, denied
Skyway’s May 2006 motion to vacate the judgment, approved its prior judgment,
and authorized Poss to proceed to maintain and protect his interest in the property
and to secure the transfer of the property to him.
{¶ 8} In July 2007, Skyway filed a petition in the Court of Appeals for
Ashtabula County for a writ of prohibition to prevent the common pleas court
from proceeding with the receivership and confiscating the property and for a writ
of mandamus to compel the common pleas court to vacate its judgments and
orders concerning the property. The common pleas court filed an answer, and the
parties submitted motions for summary judgment. At a hearing before a court of
appeals magistrate, Skyway’s counsel conceded that it had not submitted into
evidence a copy of its motion to vacate the common pleas court’s judgment,
because the motion was contrary to Skyway’s current position that it had not
voluntarily appeared in the common pleas court case. In January 2011, the court
of appeals denied the writ.
{¶ 9} This cause is now before the court upon Skyway’s appeal as of
right.
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Legal Analysis
{¶ 10} Skyway asserts that the court of appeals erred in denying its claims
for extraordinary relief in prohibition and mandamus. “Neither mandamus nor
prohibition will issue if the party seeking extraordinary relief has an adequate
remedy in the ordinary course of law.” Dzina v. Celebrezze, 108 Ohio St.3d 385,
2006-Ohio-1195, 843 N.E.2d 1202, ¶ 12. “In the absence of a patent and
unambiguous lack of jurisdiction, a court having general subject-matter
jurisdiction can determine its own jurisdiction, and a party contesting that
jurisdiction has an adequate remedy by appeal.” State ex rel. Plant v. Cosgrove,
119 Ohio St.3d 264, 2008-Ohio-3838, 893 N.E.2d 485, ¶ 5; see also State ex rel.
Mosier v. Fornof, 126 Ohio St.3d 47, 2010-Ohio-2516, 930 N.E.2d 305, ¶ 2.
{¶ 11} For the following reasons, the common pleas court did not patently
and unambiguously lack either subject-matter jurisdiction or personal jurisdiction
over Skyway to rule in the underlying proceeding.
{¶ 12} First, the court had inherent and statutory authority to rule in the
underlying case. See Cramer v. Petrie (1994), 70 Ohio St.3d 131, 133, 637
N.E.2d 882 (“courts have inherent authority—authority that has existed since the
very beginning of the common law—to compel obedience of their lawfully issued
orders”); State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 73, 573
N.E.2d 62 (“It has long been recognized that the trial court is vested with sound
discretion to appoint a receiver”); R.C. 2735.01(C) (common pleas court may
appoint a receiver “[a]fter judgment, to carry the judgment into effect”); R.C.
2735.01(D) (common pleas court may appoint a receiver “[a]fter judgment, to
dispose of the property according to the judgment”).
{¶ 13} Second, the common pleas court did not lack jurisdiction to order
the conveyance of the interest in the property notwithstanding that the 1992
judgment against Skyway’s predecessor-in-title was for money only. Civ.R. 69
authorizes a common pleas court to direct the enforcement of the judgment:
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January Term, 2011
“Process to enforce a judgment for the payment of money shall be a writ of
execution, unless the court directs otherwise.” (Emphasis added.) Because Poss
had difficulty collecting on the money judgment, he filed a forcible-entry-and-
detainer action against Morris, which led to the parties’ settlement agreement. In
fact, Morris invoked the continuing jurisdiction of the common pleas court by
requesting that the court enforce the parties’ settlement agreement. Ultimately,
the court incorporated the settlement into its own order, as it was authorized to do.
Thereafter, the court had jurisdiction to direct Morris to comply with the court
order. Civ.R. 70 (“If a judgment directs a party to execute a conveyance of land *
* * and the party fails to comply within the time specified, the court may, where
necessary, direct the act to be done at the cost of the disobedient party by some
other person appointed by the court, and the act when so done has like effect as if
done by the party”).
{¶ 14} Third, Skyway’s claim that any judgment became dormant because
of the passage of time is not cognizable in an extraordinary-writ action, and
Skyway has or had an adequate remedy by appeal from the court’s denial of its
motion to vacate to raise this claim. See State ex rel. Perotti v. McMonagle (Oct.
5, 2000), Cuyahoga App. No. 78295, 2000 WL 1474510, *3 (claim that
convictions and judgments for court costs were dormant because they were over
20 years old was not cognizable in prohibition, because common pleas court
judge was authorized to revive any dormant judgment, and any claim that he erred
in doing so would be remediable by Civ.R. 60(B) motion for relief from
judgment). Moreover, the court’s September 1993 judgment incorporating the
parties’ settlement in the underlying case was arguably not dormant, because it
addressed ownership rights in the property rather than the initial monetary
judgment. See Poss v. Morris, Ashtabula App. No. 2004-A-0093, 2006-Ohio-
1441, ¶ 42, citing In re Estate of Dinsio, 159 Ohio App.3d 98, 2004-Ohio-6036,
823 N.E.2d 43, ¶ 54.
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{¶ 15} Fourth, Skyway’s claim that the 1993 settlement agreement was
defective because of a lack of consideration does not raise a jurisdictional defect.
And the parties’ agreement evidenced sufficient consideration. See Minster
Farmers Coop. Exchange Co., Inc. v. Meyer, 117 Ohio St.3d 459, 2008-Ohio-
1259, 884 N.E.2d 1056, ¶ 28, quoting Perlmuter Printing Co. v. Strome, Inc.
(N.D.Ohio 1976), 436 F.Supp. 409, 414 (defining consideration as a “ ‘bargained
for legal benefit and/or detriment’ ”).
{¶ 16} Fifth, there was sufficient evidence for the court of appeals to
conclude that the common pleas court had personal jurisdiction over Skyway
because Skyway had entered an appearance in the underlying case and did not
raise any jurisdictional objection until almost a year later. See Maryhew v. Yova
(1984), 11 Ohio St.3d 154, 156-157, 11 OBR 471, 464 N.E.2d 538 (“In order for
a judgment to be rendered against a defendant when he is not served with process,
there must be a showing upon the record that the defendant has voluntarily
submitted himself to the court’s jurisdiction or committed other acts which
constitute a waiver of the jurisdictional defense”); Merchants Bank & Trust Co. v.
Five Star Fin. Corp., Hamilton App. No. C-100037, 2011-Ohio-2476, ¶ 19, fn.
15, quoting McBride v. Coble Express (1993), 92 Ohio App.3d 505, 510, 636
N.E.2d 356 (“ ‘[A]ny objection to assumption of personal jurisdiction is waived
by a party’s failure to assert a challenge at its first appearance in the case, and
such defendant is considered to have consented to the court’s jurisdiction’ ”).
And insofar as Skyway claims that there is conflicting evidence on this issue, the
requested extraordinary relief is unavailable. See Goldstein v. Christiansen
(1994), 70 Ohio St.3d 232, 238, 638 N.E.2d 541 (when resolution of a claim
alleging the lack of personal jurisdiction is dependent upon facts to be determined
by a court, the court’s ruling that it has jurisdiction is mere error for which
extraordinary relief in prohibition is not the appropriate remedy).
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January Term, 2011
{¶ 17} Finally, the cases that Skyway cites in support of its claim for
extraordinary relief in prohibition and mandamus are either distinguishable, see
State ex rel. White v. Cuyahoga Metro. Hous. Auth. (1997), 79 Ohio St.3d 543,
684 N.E.2d 72, and State ex rel. Natl. City Bank of Cleveland v. Cuyahoga Cty.
Court of Common Pleas (1950), 154 Ohio St. 74, 42 O.O. 147, 93 N.E.2d 465, or
were decided in the ordinary course of law by way of appeal rather than by an
action for an extraordinary writ. Baltimore & Ohio RR. v. Hollenberger (1907),
76 Ohio St. 177, 81 N.E. 184.
{¶ 18} Therefore, the common pleas court did not patently and
unambiguously lack jurisdiction to appoint a receiver and a person to effect the
conveyance of the property in the underlying case, and Skyway, which had been
joined as a party defendant in the proceeding by the common pleas court, had an
adequate remedy by appeal to raise its claims.
Conclusion
{¶ 19} Based on the foregoing, we affirm the judgment of the court of
appeals denying the writs of prohibition and mandamus. We also deny Skyway’s
request for oral argument, because the parties’ briefs are sufficient to resolve this
appeal.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, CUPP,
and MCGEE BROWN, JJ., concur.
LANZINGER, J., concurs in judgment only.
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Robert S. Wynn and Emanuel H. McGregor, for appellant.
Thomas L. Sartini, Ashtabula County Prosecuting Attorney, and Rebecca
K. Divoky, Assistant Prosecuting Attorney, for appellee.
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