[Cite as Costa v. O'Malley, 2024-Ohio-2815.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
TABITHA COSTA, :
Petitioner, : No. 113896 v. :
JUDGE THOMAS F. O’MALLEY, : ET AL., : Respondents.
JOURNAL ENTRY AND OPINION
JUDGMENT: PETITION DISMISSED DATED: July 19, 2024
Writ of Habeas Corpus Motion No. 574284 Order No. 576253
Appearances:
Jessica A. L. Camargo, for relator.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Regina A. Russo, Assistant Prosecuting Attorney, for respondents.
SEAN C. GALLAGHER, J.:
Petitioner, Tabitha Costa, seeks a writ of habeas corpus ordering her
immediate release from jail after she was found in contempt of court and sanctioned to 30 days in jail, which was later reduced to a 12-day jail sentence. Respondents,
Michelle Henry, Warden of the Cuyahoga County Jail, Judge Thomas O’Malley, and
Magistrate Eleanore Hilow, ask this court to dismiss the action on numerous
grounds. Because petitioner’s request for relief is moot due to a subsequent
judgment issued by Judge O’Malley and a stay of the underlying judgments entered
in an appeal, the case is sua sponte dismissed and respondents’ motion to dismiss is
denied as moot.
Underlying Facts and Case Procedure
On May 3, 2024, petitioner filed a petition for writ of habeas corpus
naming Judge O’Malley and Magistrate Hilow as respondents. The petition alleged
that respondents presided over a juvenile court case involving one of petitioner’s
children. In that case, emergency temporary custody of one of petitioner’s children
was awarded to Cuyahoga County Department of Children and Family Services (“the
agency”) on February 21, 2024, by order of a magistrate. The child was still not in
the agency’s custody by March 15, 2024, when Magistrate Hilow issued an order
requiring petitioner to appear before the court and show cause why she should not
be held in contempt of court for failing to relinquish custody of the child. Petitioner
did not appear at that hearing. Magistrate Hilow issued an order finding petitioner
in contempt and issued an arrest warrant to bring her before the court. That order
was adopted by Judge O’Malley on April 11, 2024. On April 25, 2024, after petitioner
was arrested pursuant to warrant and brought before the court, a hearing was held.
On April 26, 2024, Magistrate Hilow issued a decision finding petitioner in direct contempt and imposed a 30-day jail sanction with credit for three days. The petition
stated that petitioner was taken into custody as a result of the magistrate’s order and
remained in jail at the time the petition was filed.
The same day that the petition was filed, this court issued a journal
entry ordering petitioner to file an amended petition that corrected various
irregularities by 12:00 p.m. on May 6, 2024. The entry also ordered the return of
writ by 12:00 p.m. on May 7, 2024, and set the matter for hearing on May 9, 2024.
The entry also ordered petitioner’s immediate release and stayed the order that
imposed a jail sanction until the habeas matter was resolved.
Petitioner timely filed an amended petition that fixed procedural
irregularities and alleged largely the same facts as in the original petition. The
amended petition added Warden Henry as a respondent. Respondents timely filed
a return of writ and motion to dismiss, arguing that Judge O’Malley and Magistrate
Hilow were improper parties to the action, Judge O’Malley and Magistrate Hilow
had jurisdiction in the underlying matter to impose a sanction for contempt, and
that petitioner has an adequate remedy at law precluding relief in mandamus. They
also argued that the petition was moot because petitioner was no longer in Warden
Henry’s custody.
A hearing was conducted on May 9, 2024. There, the parties
presented arguments about the petition and respondents’ jurisdiction to hold
petitioner in custody. Following the hearing, on May 10, 2024, this court issued an
order directing Judge O’Malley to review Magistrate Hilow’s contempt order pursuant to petitioner’s motion for immediate review filed in the underlying action
on May 8, 2024. The order also continued the stay of the magistrate’s order of
contempt. On May 24, 2024, petitioner filed a notice of decision wherein Judge
O’Malley denied petitioner’s motion for immediate review, affirmed the magistrate’s
finding of contempt, but shortened the jail term to 12 days. On May 28, 2024, this
court issued an order staying the trial court’s decision in relation to petitioner’s
confinement and directed Judge O’Malley to rule on pending objections to the
magistrate’s decision by June 28, 2024. Judge O’Malley has since entered an order
on the objections to the magistrate’s decision.
Relief in Habeas Corpus
The writ of habeas corpus “is for the purpose of determining the
legality of the restraint or custody under which a person is held.” In re Lockhart,
157 Ohio St. 192 (1952), paragraph two of the syllabus. In the present case before
us, that means we examine the legality of the order or orders under which petitioner
is being held in confinement for contempt within the confines of whether relief in
habeas corpus is available. Id. at 194. Additionally, the writ of habeas corpus is an
extraordinary remedy that is only available when there is no other adequate remedy
at law. State ex rel. Harris v. Anderson, 76 Ohio St.3d 193, 194 (1996), citing State
ex rel. Pirman v. Money, 69 Ohio St.3d 591, 593 (1994).
A court may sua sponte dismiss a petition that seeks a writ where it is
frivolous or the petitioner obviously cannot prevail. State ex rel. Edwards v. Toledo
City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 108 (1995). Such a dismissal is governed by the standard established in Civ.R. 12(B)(6). A court may dismiss a
petition when, presuming all factual allegations in the petition as true and
construing all reasonable inferences in favor of the petitioner, it appears beyond
doubt that the petitioner can prove no set of facts entitling them to relief. State ex
rel. Squire v. Phipps, 2023-Ohio-3950, ¶ 35 (10th Dist.).
Generally, a court is limited to the petition and facts alleged therein
when determining a motion to dismiss. State ex rel. Ames v. Summit Cty. Court of
Common Pleas, 2020-Ohio-354, ¶ 5. However, a court is not so limited when
deciding whether a claim is moot. Id. “‘An event that causes a case to become moot
may be proved by extrinsic evidence.’” Lundeen v. Turner, 2020-Ohio-274, ¶ 7 (8th
Dist.), quoting State ex rel. Hawkins v. Haas, 2014-Ohio-5196, ¶ 4, fn. 1, citing State
ex rel. Brown v. Ohio Dept. of Rehab. & Corr., 2014-Ohio-2348, ¶ 2, fn. 1,
citing Pewitt v. Lorain Corr. Inst., 64 Ohio St.3d 470, 472 (1992). Similarly, when
deciding an action for extraordinary relief, a court should consider facts and
circumstances that exist at the time it makes its determination, not as they existed
at the time the petition was filed. State ex rel. Gilliam v. Cuyahoga Cty. Court of
Common Pleas, 1997 Ohio App. LEXIS 590, *3 (8th Dist. Feb. 20, 1997).
In general, “‘“[a] case is moot when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the outcome.”’” State ex rel.
Ames at ¶ 8, quoting State ex rel. Gaylor, Inc. v. Goodenow, 2010-Ohio-1844, ¶ 10-
11, quoting Powell v.
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[Cite as Costa v. O'Malley, 2024-Ohio-2815.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
TABITHA COSTA, :
Petitioner, : No. 113896 v. :
JUDGE THOMAS F. O’MALLEY, : ET AL., : Respondents.
JOURNAL ENTRY AND OPINION
JUDGMENT: PETITION DISMISSED DATED: July 19, 2024
Writ of Habeas Corpus Motion No. 574284 Order No. 576253
Appearances:
Jessica A. L. Camargo, for relator.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Regina A. Russo, Assistant Prosecuting Attorney, for respondents.
SEAN C. GALLAGHER, J.:
Petitioner, Tabitha Costa, seeks a writ of habeas corpus ordering her
immediate release from jail after she was found in contempt of court and sanctioned to 30 days in jail, which was later reduced to a 12-day jail sentence. Respondents,
Michelle Henry, Warden of the Cuyahoga County Jail, Judge Thomas O’Malley, and
Magistrate Eleanore Hilow, ask this court to dismiss the action on numerous
grounds. Because petitioner’s request for relief is moot due to a subsequent
judgment issued by Judge O’Malley and a stay of the underlying judgments entered
in an appeal, the case is sua sponte dismissed and respondents’ motion to dismiss is
denied as moot.
Underlying Facts and Case Procedure
On May 3, 2024, petitioner filed a petition for writ of habeas corpus
naming Judge O’Malley and Magistrate Hilow as respondents. The petition alleged
that respondents presided over a juvenile court case involving one of petitioner’s
children. In that case, emergency temporary custody of one of petitioner’s children
was awarded to Cuyahoga County Department of Children and Family Services (“the
agency”) on February 21, 2024, by order of a magistrate. The child was still not in
the agency’s custody by March 15, 2024, when Magistrate Hilow issued an order
requiring petitioner to appear before the court and show cause why she should not
be held in contempt of court for failing to relinquish custody of the child. Petitioner
did not appear at that hearing. Magistrate Hilow issued an order finding petitioner
in contempt and issued an arrest warrant to bring her before the court. That order
was adopted by Judge O’Malley on April 11, 2024. On April 25, 2024, after petitioner
was arrested pursuant to warrant and brought before the court, a hearing was held.
On April 26, 2024, Magistrate Hilow issued a decision finding petitioner in direct contempt and imposed a 30-day jail sanction with credit for three days. The petition
stated that petitioner was taken into custody as a result of the magistrate’s order and
remained in jail at the time the petition was filed.
The same day that the petition was filed, this court issued a journal
entry ordering petitioner to file an amended petition that corrected various
irregularities by 12:00 p.m. on May 6, 2024. The entry also ordered the return of
writ by 12:00 p.m. on May 7, 2024, and set the matter for hearing on May 9, 2024.
The entry also ordered petitioner’s immediate release and stayed the order that
imposed a jail sanction until the habeas matter was resolved.
Petitioner timely filed an amended petition that fixed procedural
irregularities and alleged largely the same facts as in the original petition. The
amended petition added Warden Henry as a respondent. Respondents timely filed
a return of writ and motion to dismiss, arguing that Judge O’Malley and Magistrate
Hilow were improper parties to the action, Judge O’Malley and Magistrate Hilow
had jurisdiction in the underlying matter to impose a sanction for contempt, and
that petitioner has an adequate remedy at law precluding relief in mandamus. They
also argued that the petition was moot because petitioner was no longer in Warden
Henry’s custody.
A hearing was conducted on May 9, 2024. There, the parties
presented arguments about the petition and respondents’ jurisdiction to hold
petitioner in custody. Following the hearing, on May 10, 2024, this court issued an
order directing Judge O’Malley to review Magistrate Hilow’s contempt order pursuant to petitioner’s motion for immediate review filed in the underlying action
on May 8, 2024. The order also continued the stay of the magistrate’s order of
contempt. On May 24, 2024, petitioner filed a notice of decision wherein Judge
O’Malley denied petitioner’s motion for immediate review, affirmed the magistrate’s
finding of contempt, but shortened the jail term to 12 days. On May 28, 2024, this
court issued an order staying the trial court’s decision in relation to petitioner’s
confinement and directed Judge O’Malley to rule on pending objections to the
magistrate’s decision by June 28, 2024. Judge O’Malley has since entered an order
on the objections to the magistrate’s decision.
Relief in Habeas Corpus
The writ of habeas corpus “is for the purpose of determining the
legality of the restraint or custody under which a person is held.” In re Lockhart,
157 Ohio St. 192 (1952), paragraph two of the syllabus. In the present case before
us, that means we examine the legality of the order or orders under which petitioner
is being held in confinement for contempt within the confines of whether relief in
habeas corpus is available. Id. at 194. Additionally, the writ of habeas corpus is an
extraordinary remedy that is only available when there is no other adequate remedy
at law. State ex rel. Harris v. Anderson, 76 Ohio St.3d 193, 194 (1996), citing State
ex rel. Pirman v. Money, 69 Ohio St.3d 591, 593 (1994).
A court may sua sponte dismiss a petition that seeks a writ where it is
frivolous or the petitioner obviously cannot prevail. State ex rel. Edwards v. Toledo
City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 108 (1995). Such a dismissal is governed by the standard established in Civ.R. 12(B)(6). A court may dismiss a
petition when, presuming all factual allegations in the petition as true and
construing all reasonable inferences in favor of the petitioner, it appears beyond
doubt that the petitioner can prove no set of facts entitling them to relief. State ex
rel. Squire v. Phipps, 2023-Ohio-3950, ¶ 35 (10th Dist.).
Generally, a court is limited to the petition and facts alleged therein
when determining a motion to dismiss. State ex rel. Ames v. Summit Cty. Court of
Common Pleas, 2020-Ohio-354, ¶ 5. However, a court is not so limited when
deciding whether a claim is moot. Id. “‘An event that causes a case to become moot
may be proved by extrinsic evidence.’” Lundeen v. Turner, 2020-Ohio-274, ¶ 7 (8th
Dist.), quoting State ex rel. Hawkins v. Haas, 2014-Ohio-5196, ¶ 4, fn. 1, citing State
ex rel. Brown v. Ohio Dept. of Rehab. & Corr., 2014-Ohio-2348, ¶ 2, fn. 1,
citing Pewitt v. Lorain Corr. Inst., 64 Ohio St.3d 470, 472 (1992). Similarly, when
deciding an action for extraordinary relief, a court should consider facts and
circumstances that exist at the time it makes its determination, not as they existed
at the time the petition was filed. State ex rel. Gilliam v. Cuyahoga Cty. Court of
Common Pleas, 1997 Ohio App. LEXIS 590, *3 (8th Dist. Feb. 20, 1997).
In general, “‘“[a] case is moot when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the outcome.”’” State ex rel.
Ames at ¶ 8, quoting State ex rel. Gaylor, Inc. v. Goodenow, 2010-Ohio-1844, ¶ 10-
11, quoting Powell v. McCormack, 395 U.S. 486, 496 (1969). An action for writ of
habeas corpus tests the legality of custody or confinement. Therefore, when one is released from custody or confinement, the action becomes moot. Larsen v. State,
92 Ohio St.3d 69, 69 (2001), citing Pewitt v. Lorain Correctional Inst., 64 Ohio
St.3d 470, 472 (1992). See also In re Kukoleck, 1990 Ohio App. LEXIS 1760, *2 (8th
Dist. May 10, 1990), citing Sakacsi v. McGettrick, 9 Ohio St.2d 156 (1967).
In the present case, petitioner has filed an appeal from the orders that
subjected her to confinement and has been granted a stay. In re E.V., 8th Dist.
Cuyahoga No. 113910, motion No. 574849, of which we take judicial notice.1 She is
no longer subject to the custody of Warden Henry for the purposes of the present
action. Therefore, the action is moot as it relates to Warden Henry, the only proper
respondent to this action.2 As such, the present action is moot.
Petitioner makes an argument that Magistrate Hilow completely
lacked jurisdiction to impose a jail term and her order is void because the contempt
matter did not pertain to a finding of direct contempt. Whether that is true does not
lead this court to a different conclusion about the mootness of the present action.
Petitioner has submitted to this court Judge O’Malley’s order reviewing the
1 “In extraordinary-writ cases, courts are not limited to the facts at the time a proceeding
is commenced, but should consider facts at the time it determines whether to grant the writ.” State ex rel. Everhart v. McIntosh, 2007-Ohio-4798, ¶ 11. In Everhart, the Supreme Court of Ohio concluded that a court could take judicial notice of an entry in another case when deciding a writ action. Id. at ¶ 10. See also Lundeen, 2020-Ohio-274, at ¶ 7, fn. 1 (8th Dist.), citing Everhart.
2 R.C. 2725.04(B) provides that a petition for habeas corpus shall be brought against the
person by whom the prisoner is confined or restrained. This means the jailer or warden who has legal custody of the petitioner. State ex rel. Rohrig v. Columbus, 2023-Ohio- 1983, ¶ 15 (10th Dist.). Therefore, Judge O’Malley and Magistrate Hilow are not proper parties to this action. magistrate’s decision or order and Judge O’Malley has adopted that decision as
modified to reduce the jail term to 12 days. So, even if Magistrate Hilow lacked
jurisdiction to impose an immediately effective sanction for an act that constituted
indirect contempt as argued, that is no longer the case. Judge O’Malley has entered
his own order finding petitioner in contempt and imposing a jail term. Judge
O’Malley has jurisdiction to impose sanctions for direct and indirect contempt.
R.C. 2705.01 and 2705.02. Petitioner may no longer be held on Magistrate Hilow’s
order or decision. As a result, the arguments going to its validity are moot.
Further, as noted above, petitioner appealed these orders and was
granted a stay pending appeal on June 3, 2024. Therefore, even if the action was
not moot, this demonstrates that petitioner possesses and is pursuing an adequate
remedy at law. This also precludes relief in habeas corpus. Jackson v. Phillips,
2009-Ohio-125, ¶ 10 (8th Dist.), citing Patterson v. Ohio Adult Parole Auth., 2008-
Ohio-6147.
Accordingly, this court finds that the issues raised in the petition are
moot. We sua sponte dismiss the petition. Accordingly, respondents’ motion to
dismiss is denied as moot. The order staying the underlying proceedings in the
present action only is dissolved. Costs assessed against petitioner; costs waived.
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). Petition dismissed.
______________________ SEAN C. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, A.J., and EILEEN A. GALLAGHER, J., CONCUR