Roseman v. Costello

2023 Ohio 4549

• Court: Ohio Court of Appeals
• Decided: December 12, 2023
• Docket: 113146
• Status: Published

Opinion

[Cite as Roseman v. Costello, 2023-Ohio-4549.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

RONALD ROSEMAN, :

Relator, : No. 113146 v. :

JUDGE JAMES J. COSTELLO, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: COMPLAINT DISMISSED DATED: December 12, 2023

Writ of Prohibition Order No. 568473

Appearances:

Ronald Roseman, pro se.

William R. Hanna, City of Cleveland Heights Director of Law, and Laure Wagner, Assistant Director of Law, for respondent.

LISA B. FORBES, J.:

On September 5, 2023, the relator, Ronald Roseman, commenced

this prohibition action against the respondent, Cleveland Heights Municipal Court

Judge James J. Costello, to prevent the judge from adjudicating a motion to vacate

a stay of writ of execution in the underlying case, USHA PILLAI IRA LLC (“the LLC”) v. Roseman, Cleveland Hts. M.C. No. CVG2201563. On the same day, this court

issued an alternative writ prohibiting the respondent from adjudicating the motion

to vacate stay until further order of this court and establishing a briefing schedule.

Pursuant to that schedule, the respondent filed his brief on September 20, 2023,

and Roseman filed his reply on September 28, 2023. For the following reasons, this

court dismisses this prohibition action for mootness.

In the underlying case, on November 18, 2022, the LLC commenced

a forcible-entry-and-detainer action against Roseman. On March 6, 2023, after a

trial, the respondent judge granted a directed verdict for the LLC against Roseman

as to the issue of possession. On March 9, 2023, Roseman filed a motion to stay the

writ of restitution and his notice of appeal, USHA PILLAI IRA LLC v. Roseman, 8th

Dist. Cuyahoga No. 112524, 2023-Ohio-3480 (“the appellate case”). On March 15,

2023, the trial court granted the stay conditional upon Roseman depositing $1200

on the first business day of the court for each month during the pendency of the

appeal.

Roseman deposited the required amount through July 2023.

However, by the middle of August 2023, Roseman had not deposited the $1200 for

that month. On August 16, 2023, the LLC then moved to vacate the stay of the writ

of restitution, and the trial court set the matter for hearing on September 6, 2023.

The docket of the underlying case shows that Roseman deposited $1200 on

August 22, 2023, and $1200 on September 5, 2023. Roseman then filed this

prohibition action. 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,

540 N.E.2d 239 (1989). 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, 417 N.E.2d 1382 (1981).

Prohibition will not lie unless it clearly appears that the court has no

jurisdiction over 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, 35 N.E.2d 571

(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, 90 N.E.2d 598 (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,

28 N.E.2d 641 (1940).

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, 529 N.E.2d 1245 (1988); and State ex rel. Csank v. Jaffe, 107 Ohio App.3d 387,

668 N.E.2d 996 (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, 678 N.E.2d 1365

(1997). Moreover, this court has discretion in issuing the writ of prohibition. State

ex rel. Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).

Roseman argues that the transfer-of-jurisdiction principle divested

the trial court from adjudicating the motion to vacate the stay. Filing a notice of

appeal divests the trial court of jurisdiction over the case to the extent that it would

interfere with the appellate court’s ability to review, modify, affirm, or reverse the

judgment being appealed. Howard v. Catholic Social Serv. of Cuyahoga Cty., 70

Ohio St.3d 141, 637 N.E.2d 840 (1994), and Lambda Research v. Jacobs, 170 Ohio

App.3d 750, 2007-Ohio-309, 869 N.E.2d 39 (1st Dist.). Although a trial court has

the jurisdiction to enforce its judgment absent a stay and the posting of a

supersedeas bond, State ex rel. Allenbaugh v. Sezon, 11th Dist. Ashtabula No. 2022-

A-0002, 2022-Ohio-1718, and the power to issue a stay, R.C. 2505.09 and App.R. 7,

Roseman argues that the transfer-of-jurisdiction principle deprives the trial court of

the power to adjudicate the further action of reexamining a stay once granted.

On September 28, 2023, in the appellate case, this court affirmed the

decision of the trial court and upheld the LLC’s forcible-entry-and-detainer action.

It further “ordered that a special mandate issue out of this court directing the municipal court to carry this judgment into execution and returned the case to the

trial court.” This decision moots the issue of whether the transfer-of-jurisdiction

principle precludes a trial court from adjudicating a motion to vacate a stay of

execution.

Accordingly, this court vacates the alternative writ and dismisses this

application for a writ of prohibition 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.

________________________ LISA B. FORBES, JUDGE

ANITA LASTER MAYS, A.J., and MARY EILEEN KILBANE, J., CONCUR