Osmic v. Sutula

[Cite as Osmic v. Sutula, 2022-Ohio-4216.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MR. HUGH OSMIC AND
MS. KIMBERLY OSMIC, :
Relators, :
No. 112132
v. :
JUDGE KATHLEEN ANN
SUTULA, ET AL., :
Respondents. :
JOURNAL ENTRY AND OPINION
JUDGMENT: COMPLAINT DISMISSED
DATED: November 23, 2022
Writ of Prohibition
Motion No. 559844
Order No. 559858
Appearances:
Hugh Osmic and Kimberly Osmic, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kelli Kay Perk, Assistant Prosecuting
Attorney, for respondents.
FRANK DANIEL CELEBREZZE, III, J.:
Relators, Hugh Osmic and Kimberly Osmic, seek a writ of prohibition
against respondents, Judge Kathleen Ann Sutula and Judge Timothy J. McGinty.
Relators claim that respondents do not have jurisdiction to hear an action for
declaratory judgment and tortious interference with contract claims where Hugh
was named as a defendant. This court sua sponte dismisses the complaint for writ
of prohibition and denies the application for peremptory writ of prohibition.
I. Factual and Procedure History
According to the complaint filed November 16, 2022, Hugh was named
as a defendant in Butorac v. Osmic, Cuyahoga C.P. No. CV-17-881894. The case was
assigned to respondent Sutula, but was heard by a visiting judge, respondent
McGinty. The parties to this underlying suit are siblings and the dispute centered
on ownership of three parcels of land that were owned by the parties’ father. Linda
Butorac sought a declaration that she owned the three parcels of land. She also
sought damages for tortious interference with contract because a company Hugh
purportedly owned filed a quiet title action during a pending sale of the properties,
which caused the sale to not go through.1 The case proceeded to trial that resulted
in a judgment in favor of Butorac for $488,801, and eventually a declaration that
Butorac was the sole owner of the properties. Hugh filed an appeal from this
judgment, which remains pending. Butorac v. Osmic, 8th Dist. Cuyahoga No.
111777.2
1 Hugh admits in his complaint that he was later substituted as the plaintiff in that
case.
An earlier appeal from this case was dismissed for lack of a final, appealable order
2
because the declaratory judgment action was unresolved. Butorac v. Osmic, 8th Dist.
Cuyahoga No. 110383, 2022-Ohio-691. According to the instant complaint, on July 20,
Butorac caused the judgment in the Cuyahoga County case to be
transferred to Lake County and, according to the complaint, has begun proceedings
to attempt to collect on the judgment. Relators’ complaint identifies this case as
Butorac v. Osmic, Lake C.P. No. 20CV000352.
On November 20, 2022, relators filed a separate application for
peremptory writ of prohibition. There, they made much of the same claims asserted
in the complaint. Relators asserted that they were obviously entitled to relief based
on the allegations made in the complaint and application for peremptory writ. The
complaint and application for peremptory writ state that collections actions are
ongoing in the Lake County case and have caused harm to relators.
II. Law and Analysis
A. Standards
To be entitled to a writ of prohibition, relators must show that
respondents have exercised judicial power that is unauthorized by law and relators
lack an adequate remedy in the ordinary course of the law. Schlegel v. Sweeney, Slip
Opinion No. 2022-Ohio-3841, ¶ 6.
In the vast majority of cases, “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. We dispense with the adequate-remedy requirement only in the
limited circumstance when the inferior court patently and
unambiguously lacks subject-matter jurisdiction over a cause of action.
2022, the trial court entered an order resolving the declaratory judgment portion of the
action.
State ex rel. Ohio Edison Co. v. Parrott, 73 Ohio St.3d 705, 707, 654
N.E.2d 106 (1995).
Id.A peremptory writ may be granted when the facts are not contested and
it appears beyond doubt that a relator is entitled to the requested relief. State ex rel.
State Farm Mut. Ins. Co. v. O’Donnell, 163 Ohio St.3d 541, 2021-Ohio-1205, 171
N.E.3d 321, ¶ 7, citing State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio
St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 14.
“Sua sponte dismissal of a case on the merits without notice is
warranted only ‘“when a complaint is frivolous or the claimant obviously cannot
prevail on the facts alleged in the complaint.”’” State ex rel. Williams v. Trim, 145
Ohio St.3d 204, 2015-Ohio-3372, 48 N.E.3d 501, ¶ 11, quoting State ex rel.
Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947, 918 N.E.2d 515,
¶ 3, quoting State ex rel. Scott v. Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573,
859 N.E.2d 923, ¶ 14, and citing State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58,
2005-Ohio-3674, 831 N.E.2d 430, ¶ 7.
B. Prohibition and Standing
Relators claim the question to be answered in the instant writ action is
“whether the mere filing of a lawsuit can be the basis for a plaintiff to maintain an
action for tortious interference with contract and whether absolute immunity of
litigation immunity deprived Butorac of standing which deprives the Court of
Common Pleas [of] subject[-]matter jurisdiction.” (Complaint at 4.)
Even though relators claim respondents lack subject-matter
jurisdiction, the issues as framed by relators do not challenge the subject-matter
jurisdiction of respondents. See State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 73,
701 N.E.2d 1002 (1998), citing State ex rel. Eaton Corp. v. Lancaster, 40 Ohio St.3d
404, 409, 534 N.E.2d 46 (1988); State ex rel. Staton v. Franklin Cty. Common Pleas
Court, 5 Ohio St.2d 17, 21, 213 N.E.2d 164 (1965). Instead, relators attack the lower
court’s judgments based on a claimed lack of standing.3
Relators acknowledge that standing is personal to the individuals in
an action and does not affect a court’s subject-matter jurisdiction: “A party that
contests a court’s jurisdiction over a particular case does not call into question the
subject-matter jurisdiction of the court.” (Complaint at 8.) “Lack of standing
challenges the capacity of a party to bring an action, not the subject matter
jurisdiction of the court. State ex rel. Smith v. Smith (1996), 75 Ohio St.3d 418, 420,
662 N.E.2d 366; State ex rel. LTV Steel Co. v. Gwin (1992), 64 Ohio St.3d 245, 251,
594 N.E.2d 616.” (Complaint at 10.)
Despite these acknowledgements, relators still claim entitlement to a
writ of prohibition based on a lack of standing. The Supreme Court of Ohio has
previously addressed relators’ argument and rejected it, stating:
We decline to accept relator’s argument because it would start us down
a slippery slope. More importantly, such a determination would
3 “‘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.’”
Wood v. McClelland, 8th Dist. Cuyahoga No. 99939, 2013-Ohio-3922, ¶ 6, quoting State ex
rel. Dallman v. Court of Common Pleas, 35 Ohio St.2d 176, 298 N.E.2d 515 (1973), syllabus.
unjustifiably elevate the defenses of the statute of limitations, standing,
and abatement to the level of jurisdictional defects. This would
contravene well-settled legal principles that differentiate between
subject matter jurisdiction and other affirmative defenses. Subject
matter jurisdiction may be raised at any time because a court that lacks
subject matter jurisdiction lacks the power to hear the case. Other
affirmative defenses, on the other hand, must be timely raised and
pleaded or otherwise are waived. The detrimental effect of
unjustifiably elevating affirmative defenses to the level of subject
matter jurisdiction is evident. Affirmative defenses would no longer
have to be pled in a timely manner. Being jurisdictional, they could be
raised at any time. This would be disruptive to litigation because it
would allow unfair surprise and promote delay.
(Emphasis added.) Jones at 78. We do not find that a purported lack of standing
leads to a lack of subject-matter jurisdiction.
Relators’ own complaint includes case citations contrary to their
claims: “‘A trial court’s decision on the issue of standing is properly challenged in a
postjudgment appeal rather than via extraordinary writ.’” State ex rel. Davet v.
Sutula, 8th Dist. Cuyahoga No. 96548, 2011-Ohio-2803, ¶ 9, quoting Jones, 84 Ohio
St.3d at 77, 701 N.E.2d 1002, citing Smith at 420; LTV Steel at 251.
Relators spend some time stressing that a claimed lack of standing can
be raised at any time and likening that to subject-matter jurisdiction. A claimed lack
of subject-matter jurisdiction cannot be waived and can be raised at any time. State
v. Wogenstahl, 150 Ohio St.3d 571, 2017-Ohio-6873, 84 N.E.3d 1008. A claimed
lack of standing can be waived. See ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio
St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 16, citing State ex rel. E. Cleveland
Fire Fighters’ Assn., Local 500, Internatl. Assn. of Fire Fighters v. Jenkins, 96 Ohio
St.3d 68, 2002-Ohio-3527, 771 N.E.2d 251, ¶ 12.
Even if a lack of standing was a valid basis on which relators could rely
for prohibition, they have not established that Butorac lacks standing to bring a
declaratory judgment action and a tort claim for tortious interference with contract
against Hugh.
“Standing” is generally defined as “[a] party’s right to make a legal
claim or seek judicial enforcement of a duty or right.” Ohio Pyro, Inc. v. Ohio Dept.
of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27.
“‘Whether a party has a sufficient stake in an otherwise justiciable
controversy to obtain judicial resolution of that controversy is what has
traditionally been referred to as the question of standing to sue. Where
the party does not rely on any specific statute authorizing invocation of
the judicial process, the question of standing depends on whether the
party has alleged * * * a “personal stake in the outcome of the
controversy.”’”
Cleveland v. Shaker Hts., 30 Ohio St.3d 49, 51, 507 N.E.2d 323 (1987), quoting
Middletown v. Ferguson, 25 Ohio St.3d 71, 75, 495 N.E.2d 380 (1986), quoting
Sierra Club v. Morton, 405 U.S. 727, 731-732, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972),
quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1972).
The arguments raised in the complaint are that Hugh is immune from
the tort claim because it is based on his filing of a quiet title action, an act protected
by the First Amendment and subject to an absolute immunity. Relators more
specifically argue there is no live case or controversy because Hugh’s act of filing a
quiet title action cannot lead to a suffered or threatened injury as a result of an illegal
activity because his actions were legal, one of the necessary elements of a justiciable
controversy.
However, relators’ claims of absolute immunity depend entirely on
whether the lawsuit Hugh filed was a sham suit. Relators ignore important
limitations on the immunity bestowed as a result of these concepts as explained by
the Supreme Court of Ohio:
One of the most fundamental and protected rights of our judicial
system is the ability of citizens to access the courts. This right is
preserved in both the First Amendment to the United States
Constitution and Article I, Section 16 to the Ohio Constitution. The
First Amendment provides that “Congress shall make no law * * *
abridging * * * the right of the people * * * to petition the Government
for a redress of grievances.” Article I, Section 16 to the Ohio
Constitution reads: “All courts shall be open, and every person, for an
injury done him in his land, goods, person, or reputation, shall have
remedy by due course of law, and shall have justice administered
without denial or delay.”
Although the courthouse doors are open to all litigants, both the United
States Supreme Court and this court have set limitations on the right to
redress claims that are brought as a sham, to vex and annoy, or in an
attempt to interfere directly with a competitor’s business relationships.
In Professional Real Estate Investors, Inc. v. Columbia Pictures
Industries, Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993),
the Supreme Court recognized this limitation and held that the First
Amendment right to access the courthouse does not extend to sham
litigation. We too have recognized the limitation to the right to seek
redress by holding: “Despite the paramount importance placed on the
ability to access the courts for redress of injuries, the right is not
absolute.” Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-
6442, 879 N.E.2d 174, ¶ 11.
Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d
832, ¶ 22-23.
Therefore, where the filed litigation constitutes a sham, is filed to vex
or harass or to interfere with business relationships, a litigation privilege does not
provide immunity from suit. Whether Hugh is immune from suit is a question that
must be presented and determined in the underlying litigation and in no event
removes subject-matter jurisdiction from respondents to hear and decide the claims
brought against Hugh. Those are determinations for a trier of fact, not suitable for
a writ of prohibition.
Respondents have jurisdiction to hear civil claims including claims of
declaratory judgment and tortious interference with contracts.
Article IV, Section 4(B) of the Ohio Constitution vests the courts of
common pleas with “original jurisdiction over all justiciable matters
* * * as may be provided by law.” To this end, Ohio law provides that
courts of common pleas have general subject-matter jurisdiction over
civil actions. See State ex rel. Cleveland Elec. Illum. Co. v. Cuyahoga
Cty. Court of Common Pleas, 88 Ohio St.3d 447, 449, 2000-Ohio-379,
727 N.E.2d 900 (2000), citing R.C. 2305.01.
Santomauro v. McLaughlin, Slip Opinion No. 2022-Ohio-2441, ¶ 15. See also R.C.
2721.02(A) (the declaratory judgment statute states that courts of record may hear
declaratory judgment actions). Respondents do not patently and unambiguously
lack jurisdiction. Therefore, relators must show that they lack any other adequate
remedy at law within which to argue these claims. A writ of prohibition will not be
issued, absent a patent and unambiguous lack of jurisdiction, where a relator
possesses an adequate remedy. LTV Steel, 64 Ohio St.3d at 248, 594 N.E.2d 616.
Hugh has already filed an appeal from the trial court’s final order. This constitutes
an adequate remedy at law that Hugh has, in fact, employed to argue his immunity
claims.
C. Lake County Proceedings
Relators also seek to prohibit the Lake County case from going
forward. In the introduction of the complaint, relators state, “Whereas the matter
is ripe for adjudication in this Court and the parties, proceeding jointly and severally,
have no other adequate remedy at law, it is prayed that for the following reasons this
Court enter a Writ of Prohibition to the Lake and Cuyahoga County Common Pleas
Courts as is hereby prayed.” Relators seem to argue that because Butorac has
initiated litigation in Lake County in an attempt to collect on her judgment, relators
are left without any remedy.
Respondents are not exercising juridical authority in the Lake County
case. Therefore, relators have not and cannot show this first necessary element for
a writ of prohibition.
In the application for peremptory writ, relators’ arguments
demonstrate that they are actually seeking to stay the Cuyahoga County court’s
judgment pending appeal. App.R. 7 provides for such a stay. There exists an
adequate remedy at law.
Finally, this court may not issue a writ of prohibition against the
unnamed judge presiding over the Lake County case. See State ex rel. Thompson v.
Santoli, 8th Dist. Cuyahoga No. 106888, 2018-Ohio-1743, ¶ 5 (“A writ cannot issue
against a nonparty judge.”).
What relators are essentially seeking is a stay of the judgment issued
by respondents but in the form of a writ of prohibition. That is not an appropriate
use of the extraordinary writ.
III. Conclusion
Relators’ complaint for writ of prohibition and application for
peremptory writ of prohibition are sua sponte dismissed and denied, respectively,
for the reasons set forth in the complaint. Relators obviously cannot succeed in this
action. Costs assessed against relator. The clerk is directed to serve on the parties
notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).
Complaint dismissed.
________________________________________
FRANK DANIEL CELEBREZZE, III, JUDGE
SEAN C. GALLAGHER, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR