Jacobs v. Cuyahoga Cty. Court of Common Pleas

2025 Ohio 2076

• Court: Ohio Court of Appeals
• Decided: June 6, 2025
• Docket: 114946
• Status: Published

Opinion

[Cite as Jacobs v. Cuyahoga Cty. Court of Common Pleas, 2025-Ohio-2076.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

SHERLYN JACOBS, :

Relator, : No. 114946 v. :

CUYAHOGA COUNTY COURT OF COMMON PLEAS, ET AL., :

Respondents. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DISMISSED DATED: June 6, 2025

Writ of Prohibition Motion Nos. 583642 and 584517 Order No. 585030

Appearances:

Sherlyn Jacobs, pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Nora E. Poore, Assistant Prosecuting Attorney, for respondent, Judge Ashley Kilbane.

Gallagher Sharp LLP, and Richard C.O. Rezie, and Joseph Monroe, II, for respondent, Calhoun Funeral Home, LLC. MARY J. BOYLE, J.:

On March 25, 2025, the relator Sherlyn Jacobs (“Jacobs”)

commenced this prohibition action against respondents Judge Ashley Kilbane and

the Cuyahoga County Common Pleas Court. Jacobs seeks, inter alia, the following

relief: (1) the reversal of the respondent judge’s granting summary judgment to the

defendant in the underlying case, Sherlyn Jacobs, et al., v. Calhoun Funeral Home,

LLC, et al., Cuyahoga C.P. No. CV-23-979882 — Jacobs alleges that this judgment

was tainted by judicial bias, procedural irregularities, and violations of due process,

including denial of the opportunity to present evidence, (2) the reversal of the

judge’s denial of the motion for recusal, (3) compel the respondent judge to

recognize Jacobs as the representative of the estate of Marvin Jacobs, (4) impose

sanctions against the defendant Calhoun Funeral Home (“Calhoun”) for failing to

comply with procedural requirements and presenting forged documents, and (5)

remand the underlying case for a new trial or further proceedings.

On April 8, 2025, Calhoun moved to intervene and file an answer and

a motion to dismiss. On April 14, 2025, pursuant to Civ.R. 24, this court granted the

motion to intervene and accepted the motion to dismiss for consideration. On

April 15, 2025, the respondent judge moved to dismiss. Jacobs responded on

April 17, 2025, by filing a motion to strike Calhoun’s filings and a brief in opposition

to the respondent judge’s motion to dismiss. For the following reasons, this court

grants the motions to dismiss and dismisses the application for a writ of prohibition. FACTUAL AND PROCCEDURAL BACKGROUND

Crystal Jacobs was the adult daughter of Jacobs and died on May 12,

2022. Jacobs contracted with Calhoun for funeral and cremation services. Jacobs

avers that she contracted explicitly to witness the cremation and provided Calhoun

with a list of family and friends who also wanted to witness the cremation. She

further avers that Calhoun, through its agents, assured her that they would be

notified of the cremation date and time. However, the cremation occurred without

any of the specified witnesses.

On May 23, 2023, Jacobs commenced the underlying case for breach

of contract and negligence in not informing the family and friends of the date and

time of the cremation. The case was assigned to the respondent judge. The

complaint listed seven other family friends as plaintiffs in addition to Jacobs.

However, when the plaintiffs’ attorney withdrew, the respondent judge held a

pretrial on the record to clarify that the eight plaintiffs must represent themselves

or be represented by an attorney. Only Jacobs and another plaintiff appeared at the

pretrial; they had not retained a new attorney. The judge dismissed the plaintiffs

who had not appeared. Once the judge had clarified the situation, she went off the

record to discuss discovery issues with the remaining parties. Jacobs alleges that

during this pretrial the respondent judge called her “stupid” as well as Jacob’s

doctors and counselors “stupid.” Jacobs continues that the respondent judge

humiliated her for three hours. On January 17, 2025, Calhoun moved for summary judgment on all

claims. A review of that motion reveals that Calhoun argued that the contract

authorized the individuals to be present, but did not guarantee their presence. The

contract further provided that “[t]he Crematory may perform the cremation of the

Decedent’s remains at a time and date as its work schedule permits and without

further notification to the Authorizing Agent.” It appears that Jacobs initialed this

provision. The affidavit of the funeral director stated that he notified Jacobs on

June 25, 2022, that the cremation would occur on June 28, 2022, but that Jacobs

said she would not attend. The funeral director further stated in the affidavit that

he spoke with Jacobs on June 28, 2022, and informed her that the cremation had

occurred as scheduled. Jacobs filed a brief in opposition. The respondent judge

granted Calhoun’s motion for summary judgment on March 3, 2025.

On March 24, 2025, Jacobs filed a writ of prohibition against the

respondent judge in the Supreme Court of Ohio. Sherlyn Jacobs v. Cuyahoga

County Court of Common Pleas IN RE: Judge Ashley Kilbane, Supreme Court Case

No. 2025-0430. The Supreme Court’s docket for this case shows that service was

made on the respondent judge on March 28, 2025.

Jacobs commenced the present prohibition action in this court on

March 25, 2025. This court’s docket shows that service was made on March 31,

2025. The two prohibition complaints are nearly identical. A comparison of the two

writs indicates that the only differences in the nine-page complaints are that a paragraph and a heading are missing in the Supreme Court writ. Both writs seek

the same relief.

On March 27, 2025, Jacobs appealed the decision in the underlying

case to the Eighth District Court of Appeals. Jacobs v. Calhoun Funeral Home, 8th

Dist. Cuyahoga No. 114956.

LEGAL ANALYSIS

Subject-matter jurisdiction cannot be waived and is properly raised

by a court sua sponte. State ex rel. Dunlap v. Sarko, 2013-Ohio-67, ¶ 13. Under the

jurisdictional-priority rule, this court lacks jurisdiction to adjudicate this

prohibition action. This rule provides that ‘“as between [state] courts of concurrent

jurisdiction, the tribunal whose power is first invoked by the institution of proper

proceedings acquires jurisdiction, to the exclusion of all tribunals, to adjudicate

upon the whole issue and to settle the rights of the parties.”’ State ex rel. Dannaher

v. Crawford, 78 Ohio St.3d 391, 393 (1997), quoting State ex rel. Racing Guild of

Ohio v. Morgan, 17 Ohio St.3d 54, 56 (1985); and State ex rel. Phillips v. Polcar, 50

Ohio St.2d 279 (1977), syllabus. Furthermore, “it is a condition of the operation of

the state jurisdictional priority rule that the claims or causes of action be the same

in both cases, and ‘[i]f the second case is not for the same cause of action, nor

between the same parties, the former suit will not prevent the latter. ’” Crawford at

393, quoting State ex rel. Sellers v. Gerken, 72 Ohio St.3d 115, 117 (1995).

The “institution of proper proceedings” is filing the lawsuit and

obtaining service. In Gehelo v. Gehelo, 160 Ohio St.243 (1953), the husband filed for divorce in Ashtabula County on October 30, 1951, but personal service was not

made and service by publication was not completed until February 8, 1952. The wife

filed for divorce in Cuyahoga County on January 18, 1952, and obtained service on

the husband on January 23, 1952. On these facts the courts ruled that Cuyahoga

County obtained jurisdiction of the divorce first, to the exclusion of Ashtabula

County. State ex rel. Consortium of Economic & Community Dev. for Hough Ward

7 v. McMonagle, 2016-Ohio-4704 (8th Dist.).

In present matter, the Supreme Court of Ohio and this court are

courts of concurrent jurisdiction over the extraordinary writs, such as prohibition.

Ohio Const., art. IV, § 2(B)(1)(b) and § 3(B)(1)(b); State ex rel. Dunlap v. Sarko,

2013-Ohio-67; and State v. Eisnaugle, 2005-Ohio-5221 (4th Dist.). The prohibition

cause of action is the same in both cases, and the institution of proper proceedings

happened first in the Supreme Court of Ohio. Accordingly, this court does not have

jurisdiction to proceed.

Assuming arguendo that the jurisdictional-priority rule does not

apply, prohibition will not issue in the present case. 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 (1989). Furthermore, if a petitioner had an

adequate remedy, relief in prohibition is precluded, even if the remedy was not used.

State ex rel. Lesher v. Kainrad, 65 Ohio St.2d 68 (1981). 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 (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 (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 (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 (1988); and State ex rel. Csank v. Jaffe, 107 Ohio App.3d

387 (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 (1997). Moreover, this

court has discretion in issuing the writ of prohibition. State ex rel. Gilligan v.

Hoddinott, 36 Ohio St.2d 127 (1973). R.C. 2305.01 vests the common pleas court with jurisdiction over all

civil cases, which include claims for breach of contract and negligence. Generally,

prohibition will not issue if the court has basic statutory jurisdiction. State ex rel.

Adams v. Gusweiler, 30 Ohio St.2d 326 (1972), and State ex rel. Pruitt v. Donnelly,

2011-Ohio-1252 (8th Dist.). Therefore, the respondent judge was not patently and

unambiguously without jurisdiction, and prohibition will not lie.

The gravamen of Jacobs’s complaint is that the respondent judge

showed judicial bias by humiliating her for three hours, calling her “stupid,” denying

her efforts to submit evidence, failing to compel discovery, failing to grant her

motion for leave to file instanter, and granting summary judgment to Calhoun.

However, “improper, biased, prejudiced, discourteous, undignified, impatient, and

belligerent conduct does not relate to a patent and unambiguous lack of jurisdiction

warranting a writ of prohibition.” Woodard v. Colaluca, 2014-Ohio-3824, ¶ 9 (8th

Dist.).

State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), and State ex

rel. Turner v. Marshall, 123 Ohio St. 586 (1931), are not persuasive. They are

peculiar mandamus actions brought in the Supreme Court of Ohio to review the

Chief Justice’s decision to disqualify a judge, which is now in the exclusive

jurisdiction of the Chief Justice or a justice designated by the Chief Justice.

R.C. 2701.03. These cases concern the proper criteria for disqualifying a judge, but

are not decided on the principles of jurisdiction or the principles of prohibition.

Accordingly, this court concludes that they are not determinative of the present action. This court further notes that Jacobs pursued an affidavit of disqualification

and, thus, exercised an adequate remedy at law, precluding prohibition. In re

Disqualification of Hon. Ashley Kilbane, Supreme Court Case No. 25-AP-038.

Moreover, prohibition is meant to be a preventive, rather than a

corrective remedy. It does not generally apply retroactively to review an

accomplished act. State ex rel. Flannery v. Sidwell, 24 Ohio St.2d 74 (1970); State

ex rel. Stafanick v. Mun. Court of Marietta, 21 Ohio St.2d 102 (1970); and Weber v.

Whitfield, 1977 Ohio App. LEXIS 8816 (9th Dist. Dec. 14, 1977).

The proper remedy to review errors and irregularities in a case is

appeal. Thus, Jacobs has and is pursuing her adequate remedy at law, which

precludes a writ of prohibition.

Accordingly, this court grants the motions to dismiss and dismisses

this application for a writ of prohibition. All outstanding motions are denied as

moot. Relator to pay costs. This court directs the clerk of courts to serve all parties

notice of the judgment and its date of entry upon the journal as required by

Civ.R. 58(B).

Writ dismissed.

________________________ MARY J. BOYLE, JUDGE

LISA B. FORBES, P.J., and MICHAEL JOHN RYAN, J., CONCUR