[Cite as Lundeen v. Turner, 2020-Ohio-274.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
CYNTHIA LUNDEEN, :
Relator, : No. 109240 v. :
JUDGE DEBORAH TURNER ET AL., :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: COMPLAINT DISMISSED DATED: January 24, 2020
Writ of Prohibition Motion No. 534529 Order No. 534540
Appearances:
Cynthia Lundeen, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Michael J. Stewart, Assistant Prosecuting Attorney, for respondent.
MARY EILEEN KILBANE, P.J.:
Relator, Cynthia Lundeen, seeks a writ of prohibition against
respondents, Judge Deborah M. Turner and Sheriff David G. Schilling, Jr. Lundeen
argues that respondent judge lacks jurisdiction over a foreclosure action pending before her in Wells Fargo Bank v. Lundeen, Cuyahoga C.P. No. CV-16-856890 (the
“Foreclosure Case”). Therefore, Lundeen argues, orders entered in that case must
be vacated—including the order directing the real property involved in the
Foreclosure Case be sold at sheriff’s sale by the respondent sheriff. This action is
moot in light of this court’s decision in Wells Fargo Bank v. Lundeen, 8th Dist.
Cuyahoga No. 107184, 2020-Ohio-28 (the “Lundeen Appeal”). There, Lundeen
raised the same arguments she now asserts here, and those arguments were rejected
by this court. As a result, the motion to intervene filed by putative intervenor, Wells
Fargo Bank, N.A., (“Wells Fargo”) is denied as moot. Respondents’ motion to
dismiss is also denied as moot.
Factual and Procedural History
On November 27, 2019, Lundeen filed a complaint for writ of
prohibition along with an emergency motion for alternative writ to stay the pending
sale of her home by the respondent sheriff, scheduled for December 2, 2019. This
court issued an alternative writ staying the sheriff’s sale during the pendency of this
action. Wells Fargo filed a motion to intervene with attached motion to dismiss on
December 16, 2019. Respondents also filed a motion to dismiss on December 19,
2019, which was opposed by Lundeen.
Lundeen’s claims in her complaint stem from a foreclosure action
filed by Wells Fargo. Her complaint in the present action asserts that Wells Fargo
failed to properly initiate the Foreclosure Case by obtaining service on her within
one year. She claims that as a result, all orders entered by respondent judge in the Foreclosure Case are void, and the respondent judge does not have jurisdiction over
the action. She also claims that the evidence offered by Wells Fargo in support of its
claims in that action constitutes inadmissible evidence under Evid.R. 803(6) and
R.C. 2317.40.
The Foreclosure Case resulted in a judgment in favor of Wells Fargo.
Lundeen appealed that decision to this court in the Lundeen Appeal. In that appeal
she presented the same arguments she now relies on in this original action to claim
that respondent judge lacks jurisdiction.1 On January 9, 2020, this court issued an
opinion rejecting Lundeen’s arguments raised in the Lundeen Appeal and affirmed
the trial court’s grant of summary judgment. Lundeen, 8th Dist. Cuyahoga No.
107184, 2020-Ohio-28, at ¶ 13, 21, and 29.
Law and Analysis
Motion to Intervene
We will first address a motion to intervene filed by the putative
intervenor, Wells Fargo, on December 16, 2019. Pursuant to Civ.R. 24, a party with
an interest in litigation may move to intervene by filing a motion to intervene with
an attached pleading specified in Civ.R. 7(A). Civ.R. 24(C). However, Wells Fargo’s
present motion is moot based on the sua sponte dismissal of this action.
1 The Ohio Supreme Court has held that a court may take judicial notice of a docket that is publicly available via the internet. State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516; State v. Chairperson of the Ohio Adult Parole Auth., 2018-Ohio-1620, 96 N.E.3d 303 (10th Dist). Writ of Prohibition
A “writ of prohibition has been defined in general terms as an
extraordinary judicial writ issuing out of a court of superior jurisdiction and directed
to an inferior tribunal commanding it to cease abusing or usurping judicial
functions.” State ex rel. Burtzlaff v. Vickery, 121 Ohio St. 49, 50, 166 N.E. 894
(1929). In order to be entitled to a writ of prohibition, a relator is required to show
by clear and convincing evidence that “(1) the lower court is about to exercise judicial
authority, (2) the exercise of authority is not authorized by law, and (3) the relator
possesses no other adequate remedy in the ordinary course of law if the writ of
prohibition is denied.” State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176, 178,
631 N.E.2d 119 (1994). Such a writ is only appropriate where a lower court has
exceeded its jurisdiction. Generally, a challenge to a court’s jurisdiction in
prohibition is a challenge that relates only to a court’s subject-matter jurisdiction.
State ex rel. Eaton Corp. v. Lancaster, 40 Ohio St.3d 404, 409, 534 N.E.2d 46
(1988).
Lundeen’s claim that respondent judge lacks jurisdiction based on the
failure of Wells Fargo to properly perfect service on her in the Foreclosure Case has
been rejected by this court in the Lundeen Appeal.2 Lundeen, 8th Dist. Cuyahoga
No. 107184, 2020-Ohio-28, at ¶ 20. Therefore, this question is moot. A “moot
question” is defined as, among other things:
2 Further, this argument does not relate to a court’s subject-matter jurisdiction, but the jurisdiction a court has over the parties. A question which does not rest upon existing facts or rights; a question as to which in reality there is no actual controversy existing; a question which involves no right actually asserted and contested. * * * A question which has lost significance because of a change in the condition of affairs between the parties, whether before or after the commencement of the action.
(Citations omitted.) Ballentine’s Law Dictionary (3d Ed.2010). “An event that
causes a case to become moot may be proved by extrinsic evidence.” State ex rel.
Hawkins v. Haas, 141 Ohio St.3d 98, 2014-Ohio-5196, 21 N.E.3d 1060, ¶ 4, fn. 1,
citing State ex rel. Brown v. Ohio Dept. of Rehab. & Corr., 139 Ohio St.3d 433, 2014-
Ohio-2348, 12 N.E.3d 1187, ¶ 2, fn. 1, citing Pewitt v. Lorain Corr. Inst., 64 Ohio
St.3d 470, 472, 597 N.E.2d 92 (1992). Lundeen’s claims are moot because they have
been resolved by this court in the Lundeen Appeal, and not in her favor.
Even if the case were not moot as a result of the holdings in the
Lundeen Appeal and there were something left to decide, Lundeen obviously cannot
prevail in the present action. This constitutes grounds for this court to sua sponte
dismiss this original action. A court may do so when “after presuming the truth of
all material factual allegations of [relators’] petition and making all reasonable
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[Cite as Lundeen v. Turner, 2020-Ohio-274.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
CYNTHIA LUNDEEN, :
Relator, : No. 109240 v. :
JUDGE DEBORAH TURNER ET AL., :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: COMPLAINT DISMISSED DATED: January 24, 2020
Writ of Prohibition Motion No. 534529 Order No. 534540
Appearances:
Cynthia Lundeen, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Michael J. Stewart, Assistant Prosecuting Attorney, for respondent.
MARY EILEEN KILBANE, P.J.:
Relator, Cynthia Lundeen, seeks a writ of prohibition against
respondents, Judge Deborah M. Turner and Sheriff David G. Schilling, Jr. Lundeen
argues that respondent judge lacks jurisdiction over a foreclosure action pending before her in Wells Fargo Bank v. Lundeen, Cuyahoga C.P. No. CV-16-856890 (the
“Foreclosure Case”). Therefore, Lundeen argues, orders entered in that case must
be vacated—including the order directing the real property involved in the
Foreclosure Case be sold at sheriff’s sale by the respondent sheriff. This action is
moot in light of this court’s decision in Wells Fargo Bank v. Lundeen, 8th Dist.
Cuyahoga No. 107184, 2020-Ohio-28 (the “Lundeen Appeal”). There, Lundeen
raised the same arguments she now asserts here, and those arguments were rejected
by this court. As a result, the motion to intervene filed by putative intervenor, Wells
Fargo Bank, N.A., (“Wells Fargo”) is denied as moot. Respondents’ motion to
dismiss is also denied as moot.
Factual and Procedural History
On November 27, 2019, Lundeen filed a complaint for writ of
prohibition along with an emergency motion for alternative writ to stay the pending
sale of her home by the respondent sheriff, scheduled for December 2, 2019. This
court issued an alternative writ staying the sheriff’s sale during the pendency of this
action. Wells Fargo filed a motion to intervene with attached motion to dismiss on
December 16, 2019. Respondents also filed a motion to dismiss on December 19,
2019, which was opposed by Lundeen.
Lundeen’s claims in her complaint stem from a foreclosure action
filed by Wells Fargo. Her complaint in the present action asserts that Wells Fargo
failed to properly initiate the Foreclosure Case by obtaining service on her within
one year. She claims that as a result, all orders entered by respondent judge in the Foreclosure Case are void, and the respondent judge does not have jurisdiction over
the action. She also claims that the evidence offered by Wells Fargo in support of its
claims in that action constitutes inadmissible evidence under Evid.R. 803(6) and
R.C. 2317.40.
The Foreclosure Case resulted in a judgment in favor of Wells Fargo.
Lundeen appealed that decision to this court in the Lundeen Appeal. In that appeal
she presented the same arguments she now relies on in this original action to claim
that respondent judge lacks jurisdiction.1 On January 9, 2020, this court issued an
opinion rejecting Lundeen’s arguments raised in the Lundeen Appeal and affirmed
the trial court’s grant of summary judgment. Lundeen, 8th Dist. Cuyahoga No.
107184, 2020-Ohio-28, at ¶ 13, 21, and 29.
Law and Analysis
Motion to Intervene
We will first address a motion to intervene filed by the putative
intervenor, Wells Fargo, on December 16, 2019. Pursuant to Civ.R. 24, a party with
an interest in litigation may move to intervene by filing a motion to intervene with
an attached pleading specified in Civ.R. 7(A). Civ.R. 24(C). However, Wells Fargo’s
present motion is moot based on the sua sponte dismissal of this action.
1 The Ohio Supreme Court has held that a court may take judicial notice of a docket that is publicly available via the internet. State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516; State v. Chairperson of the Ohio Adult Parole Auth., 2018-Ohio-1620, 96 N.E.3d 303 (10th Dist). Writ of Prohibition
A “writ of prohibition has been defined in general terms as an
extraordinary judicial writ issuing out of a court of superior jurisdiction and directed
to an inferior tribunal commanding it to cease abusing or usurping judicial
functions.” State ex rel. Burtzlaff v. Vickery, 121 Ohio St. 49, 50, 166 N.E. 894
(1929). In order to be entitled to a writ of prohibition, a relator is required to show
by clear and convincing evidence that “(1) the lower court is about to exercise judicial
authority, (2) the exercise of authority is not authorized by law, and (3) the relator
possesses no other adequate remedy in the ordinary course of law if the writ of
prohibition is denied.” State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176, 178,
631 N.E.2d 119 (1994). Such a writ is only appropriate where a lower court has
exceeded its jurisdiction. Generally, a challenge to a court’s jurisdiction in
prohibition is a challenge that relates only to a court’s subject-matter jurisdiction.
State ex rel. Eaton Corp. v. Lancaster, 40 Ohio St.3d 404, 409, 534 N.E.2d 46
(1988).
Lundeen’s claim that respondent judge lacks jurisdiction based on the
failure of Wells Fargo to properly perfect service on her in the Foreclosure Case has
been rejected by this court in the Lundeen Appeal.2 Lundeen, 8th Dist. Cuyahoga
No. 107184, 2020-Ohio-28, at ¶ 20. Therefore, this question is moot. A “moot
question” is defined as, among other things:
2 Further, this argument does not relate to a court’s subject-matter jurisdiction, but the jurisdiction a court has over the parties. A question which does not rest upon existing facts or rights; a question as to which in reality there is no actual controversy existing; a question which involves no right actually asserted and contested. * * * A question which has lost significance because of a change in the condition of affairs between the parties, whether before or after the commencement of the action.
(Citations omitted.) Ballentine’s Law Dictionary (3d Ed.2010). “An event that
causes a case to become moot may be proved by extrinsic evidence.” State ex rel.
Hawkins v. Haas, 141 Ohio St.3d 98, 2014-Ohio-5196, 21 N.E.3d 1060, ¶ 4, fn. 1,
citing State ex rel. Brown v. Ohio Dept. of Rehab. & Corr., 139 Ohio St.3d 433, 2014-
Ohio-2348, 12 N.E.3d 1187, ¶ 2, fn. 1, citing Pewitt v. Lorain Corr. Inst., 64 Ohio
St.3d 470, 472, 597 N.E.2d 92 (1992). Lundeen’s claims are moot because they have
been resolved by this court in the Lundeen Appeal, and not in her favor.
Even if the case were not moot as a result of the holdings in the
Lundeen Appeal and there were something left to decide, Lundeen obviously cannot
prevail in the present action. This constitutes grounds for this court to sua sponte
dismiss this original action. A court may do so when “after presuming the truth of
all material factual allegations of [relators’] petition and making all reasonable
inferences in their favor, it appear[s] beyond doubt that they could prove no set of
facts entitling them to the requested extraordinary relief in prohibition.” State ex
rel. Scott v. Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923, ¶ 14,
citing State ex rel. Brady v. Pianka, 106 Ohio St.3d 147, 2005-Ohio-4105, 832
N.E.2d 1202, ¶ 6. “Sua sponte dismissal without notice is warranted when a
complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the complaint.” Id., citing State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-
Ohio-3674, 831 N.E.2d 430, ¶ 7.
Lundeen’s claims raised in the instant complaint are the same as
those raised in an earlier original action she filed in this court in State ex rel.
Lundeen v. Burnside, 8th Dist. Cuyahoga No. 107657, 2018-Ohio-4122. In the
previous original action, Lundeen sought a writ of prohibition against the judge
presiding over the Foreclosure Action at that time. Id. at ¶ 1. This court dismissed
the complaint, finding that the respondent judge had general subject matter
jurisdiction over foreclosure actions, and Lundeen had an adequate remedy at law
evident in her then pending appeal. Id. at ¶ 2-4.
Lundeen has not alleged any changes in circumstance between the
prior original action and the present action, and the arguments advanced are the
same. Therefore, Lundeen obviously cannot prevail in the present action. The
respondent judge still has general subject-matter jurisdiction over foreclosure
actions, and Lundeen still possesses an adequate remedy at law in the form of the
Lundeen Appeal. Burnside at ¶ 2-3.
For all these reasons, Lundeen’s complaint for writ of prohibition is
dismissed. Respondents’ motion to dismiss is denied as moot. The alternative writ,
issued on November 27, 2019, is vacated as moot. Costs to Lundeen. The court
directs the clerk of courts to serve all parties with notice of this judgment and the
date of entry upon the journal as required by Civ.R. 58(B). Complaint dismissed.
______________________________________ MARY EILEEN KILBANE, PRESIDING JUDGE
LARRY A. JONES, SR., J., and SEAN C. GALLAGHER, J., CONCUR