Patituce v. Werner

2025 Ohio 5700

• Court: Ohio Court of Appeals
• Decided: December 22, 2025
• Docket: 2025CA0026-M
• Status: Published

Opinion

[Cite as Patituce v. Werner, 2025-Ohio-5700.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

JOSEPH PATITUCE

Relator C.A. No. 2025CA0026-M v.

JUDGE GARY WERNER ORIGINAL ACTION IN PROHIBITION Respondent

Dated: December 22, 2025

PER CURIAM.

{¶1} Relator, Joseph Patituce, has petitioned this Court for a writ of prohibition against

Respondent, Judge Werner. Judge Werner has moved to dismiss the petition. Mr. Patituce did not

respond in opposition. For the following reasons, we grant the motion to dismiss.

{¶2} When this Court reviews a motion to dismiss under Civ.R. 12(B)(6), we must

presume that all of the factual allegations in the complaint are true and make all reasonable

inferences in favor of the nonmoving party. State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489,

490 (1994). A complaint can only be dismissed when, having viewed the complaint in this way,

it appears beyond doubt that the relator can prove no set of facts that would entitle him to the relief

requested. Goudlock v. Voorhies, 2008-Ohio-4787, ¶ 7.

{¶3} “[T]he purpose of a writ of prohibition is to restrain inferior courts and tribunals

from exceeding their jurisdiction.” State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 73 (1998). For 2

a writ of prohibition to issue, a relator “must establish that (1) the trial court has exercised judicial

power, (2) the exercise of that power was unauthorized by law, and (3) denying the writ would

result in injury for which no other adequate remedy exists in the ordinary course of the law.” State

ex rel. Yeager v. Lake County Court of Common Pleas, 2024-Ohio-1921, ¶ 8. “If the respondent’s

lack of jurisdiction is patent and unambiguous, the relator need not establish the lack of an adequate

remedy in the ordinary course of the law.” State ex rel. Reynolds v. Kirby, 2023-Ohio-782, ¶ 9.

Accord State ex rel. Dannaher v. Crawford, 78 Ohio St.3d 391, 393 (1997). “[I]n such cases,

mandamus or prohibition will lie to prevent the unauthorized exercise of jurisdiction in the future

and to provide relief from prior judicial actions taken without jurisdiction.” State ex rel. Reynolds

at ¶ 9. Prohibition will generally lie only for an absence of subject-matter jurisdiction. State ex

rel. Martre v. Reed, 2025-Ohio-4542, ¶ 11.

Background

{¶4} According to the complaint, Mr. Patituce acted as appellate counsel in State v.

Mishler, 2024-Ohio-1085 (9th Dist.), and secured the reversal of a suppression ruling. That ruling

summarily denied a suppression motion without hearing. In reversing and remanding the

municipal court’s judgment for further proceedings, this Court determined that the motion to

suppress at issue “contained sufficiently particular language to put the State on notice of the issues

[the defendant] intended to raise at the suppression hearing . . . .” Mishler at ¶ 14.

{¶5} According to the complaint, Judge Werner issued an order three days after our

remand. In his March 28, 2024 order, he ordered the parties to confer, “to attempt to narrow and

to focus the specific issues to be considered at the [suppression] hearing”, and to jointly file a

certification that included “a final enumerated list of the specific issues that the parties expect to

be presented for consideration at the hearing.” A delay then ensued because the State sought en 3

banc review of our decision. The trial court stayed the matter until the State’s motion could be

resolved. Even after this Court denied the State’s motion, however, the trial court proceedings did

not immediately resume. The trial court did not lift the stay on the proceedings until April 2025.

{¶6} The complaint states that Judge Werner issued an order on April 23, 2025. He

ordered the parties to comply with the terms of his March 28th order. According to the complaint,

Mr. Patituce was not counsel of record when Judge Werner issued his April 23rd order, but he

agreed to act as defense counsel shortly thereafter. The complaint states that the State and an

attorney at Mr. Patituce’s firm exchanged emails regarding Judge Werner’s orders. Following that

exchange, the Stated moved for a mandatory appearance pretrial. In its written motion, the State

informed Judge Werner that the suppression motion did not sufficiently identify the issues to be

addressed at the suppression hearing. The State also informed Judge Werner that defense counsel

had refused to identify those issues with specificity.

{¶7} According to the complaint, Judge Werner granted the State’s motion on April 28,

2025. In his April 28th order, he set the matter for a pretrial conference and scheduled a separate

suppression hearing. He ordered Mr. Patituce to appear at the pretrial conference and show cause

as to why he and/or the defendant should not be held in contempt for failing to comply with the

March 28th order. Following Judge Werner’s order, Mr. Patituce filed this writ of prohibition.

The Basis for the Petition & Motion to Dismiss

{¶8} Mr. Patituce contends that Judge Werner is about to exercise judicial power that is

unauthorized by law. He argues that Judge Werner lacks jurisdiction to threaten him with contempt

and to require him to identify specific issues in support of client’s motion to suppress because this

Court has already held that his client’s motion complies with Ohio law and sufficiently puts the

State on notice of the issues to be addressed at the suppression hearing. See Mishler, 2024-Ohio- 4

1085, at ¶ 14 (9th Dist.). He argues that Judge Werner patently and unambiguously lacks

jurisdiction to act in contravention of our decision. He seeks a writ to stop Judge Werner from

taking further judicial action.

{¶9} Judge Werner has moved to dismiss the writ of prohibition. He notes that several

events transpired after Mr. Patituce filed his petition. First, he (Judge Werner) dismissed the show

cause order and cancelled the contempt hearing. Second, he recused himself and the magistrates

of the Medina Municipal Court, resulting in the appointment of a visiting judge. Judge Werner

argues that Mr. Patituce’s petition is moot in light of those events. He also argues that Mr. Patituce

is not entitled to relief because he exercised his judicial power in a manner authorized by law and

any errors in the exercise of that jurisdiction could be addressed through a future appeal. Mr.

Patituce has not responded to the motion to dismiss.

Mr. Patituce is Not Entitled to Relief

{¶10} Although a court cannot rely on evidence outside the complaint in determining a

Civ.R. 12(B)(6) motion, a court can rely on extrinsic evidence to determine that a matter is moot.

State ex rel. Ames v. Summit Cty. Court of Common Pleas, 2020-Ohio-354, ¶ 5-6. See also State

ex rel. Richard v. Wells, 64 Ohio St.3d 76 (1992) (concluding that mootness can be determined

based on evidence submitted by the parties). “When an actual controversy no longer exists before

this Court, we must dismiss a case as moot.” State ex rel. Sirafi v. Oldfield, 2025-Ohio-2761, ¶ 4.

{¶11} A review of the municipal court docket in State v. Mishler reveals that, after Mr.

Patituce filed his petition for writ of prohibition, Judge Werner issued an order cancelling the

pretrial conference and show cause hearing he scheduled at the State’s request. He also vacated

his April 28, 2025 order to show cause and recused himself. 5

{¶12} Mr. Patituce is the only named relator in this matter. In his petition, he sought relief

from the threat of contempt, which derived solely from Judge Werner’s order to appear and show

cause. When Judge Werner vacated his show cause order and cancelled the related pretrial

conference and hearing, he rendered this prohibition action moot. Thus, we must dismiss the case

for lack of an actual controversy. See id. at ¶ 4.

Conclusion

{¶13} Because this matter is moot, the case is dismissed. Costs of this action are taxed to

Mr. Patituce. The clerk of courts is hereby directed to serve upon all parties not in default notice

of this judgment and its date of entry upon the journal. See Civ.R. 58(B).

SCOT A. STEVENSON FOR THE COURT

CARR, J. HENSAL, J. CONCUR.

APPEARANCES:

JOSEPH C. PATITUCE, Attorney at Law, Relator.

GREGORY HUBER, Law Director, for Respondent.