Wood v. McClelland

[Cite as Wood v. McClelland, 2013-Ohio-3922.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99939
JOHN WOOD, ESQ.
RELATOR
vs.
HONORABLE JUDGE ROBERT
McCLELLAND, ET AL.
RESPONDENTS
JUDGMENT:
WRIT DENIED
Writ of Prohibition
Motion Nos. 466181 and 466747
Order No. 467677
RELEASE DATE: September 6, 2013
FOR RELATOR
John Wood, pro se
281 Corning Drive
Bratenahl, Ohio 44108
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Nora E. Graham
David Lambert
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Relator, John Wood, Esq. (“Wood” or “Relator”), has petitioned this court for
a writ of prohibition preventing respondents, Judge McClelland and Magistrate Kevin
Augustyn (“Respondents”), from exercising jurisdiction over Count 1 of the second
amended complaint for foreclosure that was filed in Fannie Mae v. Hicks, Cuyahoga C.P.
No. CV-746293 (hereinafter the “underlying action”). Wood is not a party, but there is
no dispute that he represents defendant Hicks in the underlying action. The court has
before it Respondents’ motion for summary judgment, Relator’s response to
Respondents’ motion for summary judgment, Relator’s motion for summary judgment,
Respondents’ response to Relator’s motion for summary judgment, a reply in support of
Respondents’ motion for summary judgment, and Relator’s reply to Respondents’
response to Relator’s motion for summary judgment.
{¶2} Having considered the entire record, the arguments of the parties, and the
applicable law, Respondents’ motion for summary judgment is granted and Relator’s
motion for summary judgment is denied for the reasons that follow.
{¶3} Wood’s petition avers that in the underlying action, plaintiff Fannie Mae is
without standing to pursue Count 1 of the second amended complaint, and therefore, the
trial court patently and unambiguously lacks jurisdiction to exercise jurisdiction over this
count.
{¶4} The gravamen of this action centers around Fannie Mae’s cause of action to
enforce a note and mortgage in the underlying action. Fannie Mae averred it is a person
entitled to enforce the note pursuant to R.C. 1303.01 and 1303.38. Wood contends that
the note is invalid because it was lost while in the possession of a third party, not Fannie
Mae. Hicks filed a motion to dismiss the second amended complaint on this basis, which
the trial court denied. Wood then commenced this action.
{¶5} Respondents have moved for summary judgment on the following alleged
grounds: (1) Wood is not the real party in interest and lacks standing to pursue this
original action in his own name, and (2) Wood has failed to establish a claim for relief in
prohibition. Wood responds that he has standing by virtue of his “representative
capacity” as Hicks’s counsel in the underlying litigation and maintains that he has
satisfied all requirements necessary to merit relief in prohibition. Respondents are
entitled to summary judgment on both grounds.
A. Wood lacks standing
{¶6} “It is elementary that every action shall be prosecuted in the name of the real
party in interest * * *.” State ex rel. Dallman v. Court of Common Pleas, 35 Ohio St.2d
176, 178, 298 N.E.2d 515 (1973), citing Civ.R. 17(A) and Cleveland Paint & Color Co.
v. Bauer Mfg. Co., 155 Ohio St. 17, N.E.2d 545 (1951), paragraph one of the syllabus.
“A party lacks standing to invoke the jurisdiction of the court unless he has, in an
individual or representative capacity, some real interest in the subject matter of the
action.” Id. at syllabus.
{¶7} Wood concedes that he has no personal interest in the underlying litigation
but believes he has standing in his “representative capacity” as defendant Hicks’s
attorney. However, Wood’s employment as Hicks’s counsel of record in the underlying
foreclosure action does not give him standing to pursue this original action in his own
name. Civ.R. 17(A) confers standing to pursue an action in a representative capacity
only in the following circumstances:
Every action shall be prosecuted in the name of the real party in interest.
An executor, administrator, guardian, bailee, trustee of an express trust, a
party with whom or in whose name a contract has been made for the
benefit of another, or a party authorized by statute may sue in his name
as such representative without joining with him the party for whose
benefit the action is brought. When a statute of this state so provides, an
action for the use or benefit of another shall be brought in the name of
this state. No action shall be dismissed on the ground that it is not
prosecuted in the name of the real party in interest until a reasonable time
has been allowed after objection for ratification of commencement of the
action by, or joinder or substitution of, the real party in interest. Such
ratification, joinder, or substitution shall have the same effect as if the
action had been commenced in the name of the real party in interest.
(Emphasis added.)
{¶8} Civ.R. 17(A) does not allow an attorney to file civil actions in his or her own
name on behalf of the real party in interest, i.e., their client.1 Wood is not a real party in
interest. “To be beneficially interested, a party must be more than just concerned about
1 “[T]he point of the rule [Civ.R. 17(A)] is that ‘suits by representative
plaintiffs on behalf of the real parties in interest are the exception rather than the
rule and should only be allowed when the real parties in interest are identifiable
and the res judicata scope of the judgment can be effectively determined.’” Fed.
Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979
N.E.2d 1214, quoting Consumer Fedn. of Am. v. Upjohn Co., 346 A.2d 725, 729
(D.C. 1975) (construing analogous District of Columbia rule).
an action’s subject matter. Rather, that person must be in a position to sustain either a
direct benefit or injury from the resolution of the case.” State ex rel. Brady v. Russo, 8th
Dist. Cuyahoga No. 89552, 2007-Ohio-3277, ¶ 14, citing State ex rel. Spencer v. E.
Liverpool Planning Comm., 80 Ohio St.3d 297, 299, 685 N.E.2d 1251 (1997). In Brady,
this Court found that a counsel of record in an underlying criminal action was not the real
party in interest and could not pursue a mandamus action in her own name on behalf of
her client. Id. at ¶ 15-16; see also Lager v. Plough, 11th Dist. Portage No. 2006-P-0013,
2006-Ohio-2772, ¶ 15 (holding that the public defender “does not have standing to
challenge, in [sic] behalf of the criminal defendants in the underlying cases, respondent’s
employment of the ‘anger management’ condition in setting bail for a domestic violence
offense.”). Respondents are entitled to judgment on this ground.
B. Failure to establish a claim for relief
{¶9} Even if this action had been commenced in the name of the real party in
interest, it would fail. Wood argues that the trial court was patently and unambiguously
without jurisdiction. Wood, however, acknowledges that the trial court has
subject-matter jurisdiction in foreclosure cases. The trial court, therefore, had
jurisdiction to rule on the motion to dismiss that challenged Fannie Mae’s standing to
enforce the subject note. See, e.g., Schwartzwald. The trial court denied the motion to
dismiss, and Wood clearly believes the ruling was erroneous. Nonetheless, a “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.” Hicks’s
can pursue an appeal of the trial court’s ruling on her motion to dismiss and, therefore,
has an adequate remedy at law. Because Hicks’s has an adequate remedy at law by way
of appeal, relief through an original action is inappropriate. See State ex rel. Davet v.
Sutula, 131 Ohio St.3d 220, 2012-Ohio-759, 963 N.E.2d 811, ¶ 2 (“Any conflict
concerning the issue of standing in a foreclosure action recognized by the court of appeals
in its decision dismissing Davet’s complaint for writs of prohibition and mandamus was
not dispositive of the case, because the court of appeals held that he had an adequate
remedy in the ordinary course of law by way of appeal, which rendered relief through an
original action inappropriate.”).
{¶10} Wood asserts that Schwartzwald clearly established that Fannie Mae lacked
standing to enforce the note in the underlying litigation. We disagree.
{¶11} The Ohio Supreme Court addressed and decided the following issue in
Schwartzwald: “whether a lack of standing at the commencement of a foreclosure action
filed in a common pleas court may be cured by obtaining an assignment of a note and
mortgage sufficient to establish standing prior to the entry of judgment.” Id. at ¶ 19. In
Schwartzwald, the plaintiff conceded that it was not the person entitled to enforce the note
on the date that the foreclosure complaint was filed. The court held that a lack of
standing at the outset of the litigation cannot be cured by receipt of an assignment of the
claim or by substitution of the real party in interest. Id. at ¶ 41. The plaintiff in the
underlying action maintains it was the proper person to enforce the note and mortgage at
the time the complaint was filed. Also, unlike Schwartzwald, the foreclosure defendant
in the underlying action only challenged the validity or sufficiency of a lost note affidavit.
There appears to be no dispute that the plaintiff in the underlying action had an interest
in the mortgage at the time it filed suit. Regardless of the factual distinctions, a writ of
prohibition is not the appropriate remedy to correct an error in a lower court’s judgment
that raises the issue of a litigant’s standing. See State ex rel. Davet (noting that the
appellate court did not need to address the merits of relator’s jurisdictional claim because
“its jurisdiction in the writ case was ‘limited to determining whether jurisdiction is
patently and unambiguously lacking’”).
{¶12} A writ of prohibition “is an extraordinary remedy that is granted in limited
circumstances with great caution and restraint.” State ex rel. Corn v. Russo, 90 Ohio
St.3d 551, 554, 740 N.E.2d 265 (2001). Before it can be granted, the relator must prove
that: “(1) the lower court is about to exercise judicial power, (2) the exercise of power is
unauthorized by law, and (3) relator possesses no other adequate remedy at law.” Id.However, when a court is patently and unambiguously without jurisdiction to act
whatsoever, the availability or adequacy of a remedy is immaterial. State ex rel. Tilford
v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988). Therefore, if the lack of
jurisdiction is patent and unambiguous, the writ will be granted upon proof of the first
two elements alone.
{¶13} 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. State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771
N.E.2d 853, ¶ 21.
{¶14} A party challenging the court’s jurisdiction has an adequate remedy at law
by 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). 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).
{¶15} A patent and unambiguous lack of jurisdiction means that there is a “total
lack of jurisdiction of the lower court to act.” State ex rel. Jones v. Suster, 84 Ohio St.3d
70, 77, 701 N.E.2d 1002 (1998), criticized by, Schwartzwald at ¶ 29. The court of
common pleas clearly has subject-matter jurisdiction in the underlying foreclosure case.
State ex rel. Wood v. Olsztyn, 8th Dist. Cuyahoga No. 98061, 2012-Ohio-3160, ¶ 5, citing
Weigand v. Deutsche Bank Natl. Trust, 8th Dist. Cuyahoga No. 97424, 2012-Ohio-933(denying relief in prohibition to prevent the court of common pleas from proceeding in a
foreclosure action). The issue of standing does “not attack the court’s jurisdiction and
can be adequately raised by postjudgment appeal.” State ex rel. Smith v. Smith, 75 Ohio
St.3d 418, 420, 662 N.E.2d 366 (1996). “Standing is a threshold question for the court to
decide in order for it to proceed to adjudicate the action. The trial court has discretion to
decide whether the [plaintiff] is a proper party to assert the claim.” State ex rel. Jones at
77. There is an adequate remedy at law to challenge an adverse ruling as to a party’s
alleged lack of standing in a foreclosure action. See, e.g., Schwartzwald; see also
CitiMortgage, Inc. v. Patterson, 8th Dist. Cuyahoga No. 98360, 2012-Ohio-5894.
Accordingly, prohibition is not an appropriate remedy to correct the alleged error.
{¶16} The trial court had jurisdiction to rule on the motion to dismiss that raised
the issue of standing, and the trial court’s ruling can be adequately challenged by a
postjudgment appeal. The trial court does not patently and unambiguously lack
jurisdiction over plaintiff’s claims in the underlying action.
{¶17} Relator’s motion for summary judgment is denied and respondents’ motion
for summary judgment is granted.
{¶18} Accordingly, we grant the respondents’ motion for summary judgment.
Relator to pay costs. The court directs the clerk of court to serve all parties with notice
of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶19} Writ denied.
EILEEN T. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
TIMOTHY McCORMACK, J., CONCUR