State ex rel. Linetsky v. Friedman

[Cite as State ex rel. Linetsky v. Friedman, 2013-Ohio-3257.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100117
STATE OF OHIO, EX REL., TANYA LINETSKY
RELATOR
vs.
JUDGE STUART FRIEDMAN
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Prohibition
Motion Nos. 466723 and 466734
Order No. 466836
RELEASE DATE: July 24, 2013
ATTORNEYS FOR RELATOR
Rhys B. Cartwright-Jones
42 North Phelps St.
Youngstown, OH 44503
Harlan D. Karp
850 Euclid Avenue, Suite 1330
Cleveland, OH 44114
ATTORNEY FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
EILEEN T. GALLAGHER, J.:
{¶1} On July 16, 2013, the relator, Tanya Linetsky, commenced this prohibition
action against the respondent, Judge Stuart Friedman, to prevent the judge from taking
further action in the underlying case, Linetsky v. DeJohn, Cuyahoga C.P. No. CV-672668.
Specifically, Linetsky is seeking to prohibit the judge from holding a hearing on a
motion for additional attorney fees that is scheduled for the afternoon of July 24, 2013,
and from ruling on that motion. On July 18, 2013, this court instructed the petitioner to
submit a copy of a September 25, 2012 journal entry denying the motion for additional
attorney fees as moot. Also, on that date, Linetsky filed an application for an alternative
writ. On July 19, 2013, Linetsky’s attorney filed the compliance with this court’s order
in which he stated that he could not find a signed September 25, 2012 journal entry after
making a search of the trial court file. For the following reasons, this court sua sponte
denies the applications for an alternative writ and a writ of prohibition.
{¶2} In the underlying case, Linetsky sued DeJohn, a mortgage broker, for, inter
alia, fraud, negligence, and violations of the Federal Truth in Lending Act, the Ohio
Consumer Sales Practices Act, and the Ohio Mortgage Broker Act. After considerable
litigation, Linetsky voluntarily dismissed her claims against DeJohn pursuant to Civ.R.
41(A). DeJohn then filed a motion for attorney fees pursuant to R.C. 2323.51, frivolous
conduct in civil actions. Judge Friedman conducted an extensive hearing on the matter
in November 2011. On May 4, 2012, the judge granted DeJohn’s motion and awarded
$9,045.00 in attorney fees. Linetsky appealed on May 16, 2012, and filed a bond for
stay of judgment. On May 24, 2012, DeJohn then filed the subject motion for
additional attorney fees expended in preparing for and presenting the evidence for the
November 2011 hearing. Linetsky filed a brief in opposition to the subject motion on
May 31, 2012. This court affirmed the award of attorney fees on December 27, 2012.
Linetsky v. DeJohn, 8th Dist. Cuyahoga No. 98370, 2012-Ohio-6140. DeJohn
subsequently satisfied his award through the bond.
{¶3} On the docket of the underlying case on the line noting the filing of the
subject motion, there is the notation “09/25/2012 - moot.” However, there is no separate
docket entry for September 25, 2012, evidencing an actual journal entry denying the
subject motion as moot. Moreover, as sworn in the attorney’s affidavit, there is no
electronic image of a journal entry denying the subject motion as moot, nor is there a
“hard copy” of such a journal entry in the case file. On July 8, 2013, the respondent
judge set the subject motion for a hearing on July 24, 2013. Linetsky then filed 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 641 (1940); and Reiss v. Columbus Mun. Court, 76
Ohio Law Abs. 141, 145 N.E.2d 447 (10th Dist.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 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). 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} Linetsky argues that a writ of prohibition should issue basically on two
theories, (1) termination of jurisdiction and (2) law of the case. Under the termination of
jurisdiction principle, when a trial court unconditionally dismisses a case or a matter, or
the plaintiff voluntarily dismisses a case under Civ.R. 41(A)(1), the trial court patently
and unambiguously lacks jurisdiction to proceed. A writ of prohibition will issue to
prevent the exercise of jurisdiction. State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84,
2002-Ohio-3605, 771 N.E.2d 853. Nevertheless, even when a case has otherwise been
fully resolved, the court retains jurisdiction to consider collateral issues, such as contempt
and sanctions. State ex rel. Benbow v. Runyan, 99 Ohio St.3d 410, 2003-Ohio-4127,
792 N.E.2d 1124; and State ex rel. Richard v. Cuyahoga Cty. Bd. of Commrs., 100 Ohio
App.3d 592, 654 N.E.2d 443 (8th Dist.1995).
{¶6} Linetsky argues that the underlying case must be fully resolved because the
docket shows that the subject motion is moot and because she had dismissed the claim
and DeJohn litigated the issue of attorney fees all the way through collecting the
judgment. As a corollary to the termination of jurisdiction principle, a judge may not
modify a final judgment; attempts to do so are nullities. Pitts v. Dept. of Transp., 67
Ohio St.2d 378, 423 N.E.2d 1105 (1981).
{¶7} However, the court concludes that there is no authentic journal entry
resolving the subject motion. The lack of a separate listing for such a ruling on
September 25, 2012, on the docket; the lack of an electronic image in the clerk’s record;
and the lack of a hard copy in the case file convinces this court that the judge never issued
a journal entry denying the subject motion as moot. State v. Turner, 8th Dist. Cuyahoga
No. 88489, 2007-Ohio-3263, on which Linetsky relies, supports the conclusion that there
must be an actual signed journal entry and not just a notation on the docket. Although
this court affirmed in Turner the principle that a court speaks through its journal, the
court dismissed the appeal for lack of a final, appealable order because there was no
signed, file-stamped journal entry in the record, even though the docket said there was a
sentence and the parties stipulated to that as a fact. Civ.R. 58(A) requires a judge’s
signature. Thus, the motion is still outstanding, and the termination of jurisdiction
principle is not invoked on the grounds that the subject motion is resolved.
{¶8} The subject motion arguably is a motion for sanctions and comes within the
exception to the termination of jurisdiction principle. Therefore, the respondent judge
has sufficient jurisdiction to determine his own jurisdiction, and prohibition will not lie.
Appeal provides an adequate remedy at law to determine whether the trial court had
jurisdiction. In re: K.H., 8th Dist. Cuyahoga No. 92618, 2009-Ohio-5273 (jurisdiction
of trial court determined on appeal).
{¶9} The doctrine of the law of the case “provides that the decision of a reviewing
court in a case remains the law of the case on the legal questions involved for all
subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v.
Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). Thus, “an inferior court has no
discretion to disregard the mandate of a superior court in a prior appeal in the same case.”
Id. at syllabus. The doctrine is a rule of practice rather than a binding rule of
substantive law and will not be applied to achieve unjust results. Id. at 3. Although a
court may issue an extraordinary writ to enforce law of the case, issues concerning its
application are often also resolved on appeal. State ex rel. Davis v. Cleary, 77 Ohio
App.3d 494, 602 N.E.2d 1183 (8th Dist.1991).
{¶10} In the present case, it is not certain that adjudicating the subject motion
would disregard the mandate of this court in Linetsky, 8th District Cuyahoga No. 98370,
2012-Ohio-6140. Certainly, if DeJohn was attempting to add to the sanctions for the
time period before the hearing, then adjudication would be prohibited. However, the
subject motion is arguably another motion for sanctions occurring after the time period
for the initial motion for sanctions. Thus, it is arguably outside the scope of the mandate
in Linetsky. Again, the respondent judge has sufficient jurisdiction to determine his
own jurisdiction, and prohibition will not lie.
{¶11} This is a narrow holding. Prohibition should not issue in doubtful cases,
and the subject motion is arguably within exceptions to the termination of jurisdiction and
law of the case principles. Thus, the trial court must determine his own jurisdiction.
Nothing in this opinion should bar Linetsky from arguing jurisdiction, law of the case,
waiver, satisfaction, laches, or any other good-faith argument.
{¶12} Accordingly, this court denies the applications for an alternative writ and the
writ of prohibition. Relator 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).
{¶13} Writ denied.
EILEEN T. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR