State ex rel. Hadley v. Pike

2014 Ohio 3310

• Court: Ohio Court of Appeals
• Decided: July 25, 2014
• Docket: 14 CO 14
• Status: Published

Opinion

[Cite as State ex rel. Hadley v. Pike, 2014-Ohio-3310.] STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE ex rel. ANDREW HADLEY, ) CASE NO. 14 CO 14 et al. ) ) RELATORS ) ) OPINION AND VS. ) JUDGMENT ENTRY ) HONORABLE JUDGE ) C. ASHLEY PIKE ) ) RESPONDENT )

CHARACTER OF PROCEEDINGS: Complaint for Writs of Prohibition and Mandamus

JUDGMENT: Granted.

APPEARANCES:

For Relators: Atty. Ronald L. Mason Atty. Aaron T. Tulencik Mason Law Firm Co., L.P.A. 425 Metro Place North, Suite 620 Dublin, Ohio 43017

For Respondent: Atty. Robert Herron Columbiana County Prosecutor Atty. Krista R. Peddicord Assistant Prosecuting Attorney 105 South Market Street Lisbon, Ohio 44432

JUDGES:

Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: July 25, 2014 [Cite as State ex rel. Hadley v. Pike, 2014-Ohio-3310.] PER CURIAM.

{¶1} Relators Andrew Hadley and Alsan Corporation have filed for a writ of

mandamus and writ of prohibition against Respondent Judge C. Ashley Pike to

prevent further action in Columbiana County Court of Common Pleas Case No. 13

CV 631, and to force the judge to dismiss the action for lack of subject matter

jurisdiction. Relators argue that the attorney who filed the action is not licensed to

practice law in Ohio and had not been granted pro hac vice status prior to filing the

complaint. Respondent admits that the attorney was not licensed in Ohio and did not

even begin applying for pro hac vice status until two weeks after filing the complaint.

For the following reasons we grant both writs.

{¶2} On October 13, 2013, Melanie and Benjamin Woods filed a complaint,

through their attorney John Lucas, against Andrew Hadley and Alsan Corporation

(d/b/a “Dairy Queen”). Attorney Lucas was licensed in Pennsylvania but not in Ohio

at the time the complaint was filed. Two weeks after the complaint was filed, Lucas

registered for pro hac vice status with the Ohio Supreme Court. He was

subsequently issued a certificate of pro hac vice registration on November 1, 2013.

{¶3} On November 21, 2013, Relators filed a motion to dismiss the

complaint on the basis that Lucas was not admitted to practice in Ohio pro hac vice

when he commenced the action by filing the complaint. Furthermore, Lucas had not

yet requested to appear pro hac vice in the Columbiana County Court of Common

Pleas. -2-

{¶4} On November 25, 2013, Lucas filed a motion for permission to appear

pro hac vice and participate as counsel in Columbiana County Common Pleas Case

No. 13 CV 631.

{¶5} On December 26, 2013, the court granted Lucas's motion seeking

permission to appear pro hac vice and overruled Relators' motion to dismiss. The

court ruled that dismissal of the action was too drastic a measure in response to the

failure of Lucas to obtain pro hace vice status prior to filing the complaint. The court

overruled Relators' motion to dismiss and allowed Lucas to file an amended

complaint that would relate back to the date of the original complaint. This action

seeking a writ of mandamus and a writ of prohibition followed. Respondent has filed

a Civ.R. 12(B)(6) motion to dismiss complaint, and Relators have filed a response.

{¶6} A writ of mandamus is defined as “a writ, issued in the name of the

state to an inferior tribunal, a corporation, board, or person, commanding the

performance of an act which the law specially enjoins as a duty resulting from an

office, trust, or station.” R.C. 2731.01. In order for a court to issue a writ of

mandamus, a relator must have a clear legal right to the relief prayed for, the

respondent must have a clear legal duty to perform the act requested, and the relator

must possess no plain and adequate remedy at law. State ex rel. Husted v. Brunner,

123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, at ¶8.

{¶7} A writ of prohibition is a legal order under which a court of superior

jurisdiction enjoins a court of inferior jurisdiction from exceeding the general scope of

its inherent authority. State ex rel. Feathers v. Hayes, 11th Dist. No. 2006-P-0092, -3-

2007-Ohio-3852, ¶9; State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 701

N.E.2d 1002 (1998). A writ of prohibition may only be issued where the relator

establishes that: (1) a judicial officer or court intends to exercise judicial power over

a pending matter; (2) the proposed use of that power is unauthorized under the law;

and (3) the denial of the writ will result in harm for which there is no other adequate

remedy in the ordinary course of the law. State ex rel. Florence v. Zitter, 106 Ohio

St.3d 87, 2005-Ohio-3804, 831 N.E.2d 1003, ¶14; State ex rel. Sliwinski v. Unruh,

118 Ohio St.3d 76, 2008-Ohio-1734, 886 N.E.2d 201, ¶7.

{¶8} “[A] court of superior jurisdiction may grant a writ of prohibition to

prevent the attempted exercise of ultra vires jurisdiction by a court of inferior

jurisdiction. Where the proceedings are void ab initio, ultra vires jurisdiction is

invoked and the writ will lie.” Wisner v. Probate Court of Columbiana Cty., 145 Ohio

St. 419, 422, 61 N.E.2d 889 (1945), citing State ex rel. Young v. Morrow, 131 Ohio

St. 266, 2 N.E.2d 595 (1936).

The writ [of prohibition] may be invoked against any inferior courts or

inferior tribunals, ministerial or otherwise, that possess incidentally

judicial or quasi-judicial powers, to keep such courts and tribunals

within the limits of their own jurisdiction.

If such inferior courts or tribunals, in attempting to exercise judicial or

quasi-judicial power, are proceeding in a matter wholly or partly outside

of their jurisdiction, such inferior courts or tribunals are amenable to the

writ of prohibition as to such ultra vires jurisdiction.” -4-

State ex rel. Nolan v. ClenDening, 93 Ohio St. 264, 112 N.E. 1029 (1915),

paragraphs three and four of the syllabus.

If an inferior court is without jurisdiction whatsoever to act, the

availability or adequacy of a remedy of appeal to prevent the resulting

injustice is immaterial to the exercise of supervisory jurisdiction by a

superior court to prevent usurpation of jurisdiction by the inferior court.

See State, ex rel. Northern Ohio Telephone Co. v. Winter (1970), 23

Ohio St.2d 6[, 260 N.E.2d 827]. See, also, Hall v. American Brake

Shoe Co. (1968), 13 Ohio St.2d 11, 13[, 233 N.E.2d 582].”

State ex rel. Adams v. Gusweiler, 30 Ohio St.2d 326, 329, 285 N.E.2d 22 (1972).

Where there is a total want of jurisdiction on the part of a court, a writ of

prohibition will be allowed to arrest the continuing effect of an order

issued by such court, even though the order was entered on the journal

of the court prior to the application for the writ of prohibition.

Id. at paragraph two of the syllabus.

{¶9} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim may be

granted when it appears beyond doubt from the face of the petition, presuming the

allegations contained therein are true, that the relator can prove no facts which would

warrant the relief sought. State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537

N.E.2d 641 (1989). On the other hand, if all the material facts are uncontroverted

and it appears beyond doubt that a relator is entitled to the requested extraordinary -5-

relief in mandamus, a peremptory writ will be granted. State ex rel. Sapp v. Franklin

Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, at ¶14.

{¶10} In Ohio, a civil action is commenced by filing a complaint with the court.

Civ.R. 3(A). Proper filing of a complaint invokes the jurisdiction of the court over a

matter. In re M.W., 133 Ohio St.3d 309, 2012-Ohio-4538, 978 N.E.2d 164, ¶25;

Bolinger v. Bolinger, 49 Ohio St.3d 120, 551 N.E.2d 157 (1990). A trial court does

not have jurisdiction over a complaint that is not properly commenced, and any

judgment rendered is void ab initio. McAbee v. Merryman, 7th Dist. No. 13 JE 3,

2013-Ohio-5291, ¶16.

{¶11} R.C. 4705.01 states: “No person shall be permitted to practice as an

attorney and counselor at law, or to commence, conduct, or defend any action or

proceeding in which the person is not a party concerned, either by using or

subscribing the person's own name, or the name of another person, unless the

person has been admitted to the bar by order of the supreme court in compliance

with its prescribed and published rules.”

{¶12} “When a non-attorney files a complaint in a court in violation of R.C.

4705.01, the court should dismiss the complaint without prejudice.” Williams v.

Global Constr. Co., Ltd., 26 Ohio App.3d 119, 498 N.E.2d 500 (10th Dist.1985),

paragraph two of the syllabus.

{¶13} The Ohio Supreme Court has confined the practice of law to those who

have met the prescribed requirements and have been regularly admitted to the bar.

Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650 (1934), -6-

paragraph three of the syllabus. No person may practice law in this state who has

not been admitted to the bar by order of the Ohio Supreme Court. In re Unauthorized

Practice of Law, 175 Ohio St. 149, 192 N.E.2d 54 (1963), paragraph two of the

syllabus. “[T]he preparation and filing of a pleading in court is an act of advocacy

which must be undertaken by an attorney admitted to the bar and licensed to practice

law in this state.” Washington Cty. Dept. of Human Serv. v. Rutter, 100 Ohio App.3d

32, 36, 651 N.E.2d 1360 (4th Dist.1995).

{¶14} “[A] lawyer admitted to practice in another state, but not authorized to

practice in Ohio, who counsels Ohio clients on Ohio law and drafts legal documents

for them is engaged in the unauthorized practice of law in Ohio.” Cleveland Bar

Assn. v. Moore, 87 Ohio St.3d 583, 584, 722 N.E.2d 514 (2000).

{¶15} Gov.Bar R. XII sets forth the rules and procedures to allow an out-of-

state attorney to practice in Ohio pro hac vice. Pro hac vice literally means “for this

event” or “for this occasion.” Davis v. Marcotte, 193 Ohio App.3d 102, 2011-Ohio-

1189, 951 N.E.2d 117, ¶8 (10th Dist.). In order to be admitted pro hac vice, an out-

of-state attorney must first register with the Ohio Supreme Court Office of Attorney

Services. Gov.Bar R. XII(1)(A)(3). The attorney is then required to file a motion for

permission to appear pro hac vice with the court in which the attorney wishes to

appear as counsel. Gov.Bar R. XII(1)(A)(6). Only after these two prerequisites are

fulfilled may the out-of-state attorney represent clients in court in Ohio.

{¶16} It is undisputed that Attorney Lucas did not register with the Ohio

Supreme Court Office of Attorney Services until November 1, 2013, two weeks after -7-

the complaint was filed. We note that registering with the Ohio Supreme Court is

only the preliminary step to being granted pro hac vice status. The attorney must

subsequently file a motion with the trial court, and the trial court decides whether to

grant pro hac vice admission. Lucas did not file his motion with the Columbiana

County Court of Common Pleas until November 25, 2013, two days after Relators

filed their motion to dismiss the complaint for lack of jurisdiction. The court did not

actually grant Lucas's motion for pro hac vice status until December 26, 2013, the

day it also overruled the motion to dismiss.

{¶17} Clearly, Attorney Lucas was not admitted to practice law in Ohio when

he filed the complaint. Therefore, the complaint in Case No. 13 CV 631 was void ab

initio. The trial court had no discretion in ruling on the motion to dismiss the

complaint. The complaint should have been dismissed without prejudice for lack of

subject matter jurisdiction. A writ of mandamus is appropriate because Relators have

a clear legal right to dismissal of the complaint for lack of jurisdiction and Respondent

has a clear legal duty to perform the act requested. In addition, a writ of prohibition is

warranted because any further prosecution of the matter by Respondent is

unauthorized and without jurisdiction under the law. Because the matters for review

are jurisdictional in nature, it is unnecessary to determine whether Relators had other

legal remedies available for relief.

{¶18} For the aforementioned reasons, we grant Relators’ complaint for a writ

of mandamus and a writ of prohibition. The court is ordered to dismiss the complaint

in Columbiana County Court of Common Pleas Case No. 13 CV 631 without -8-

prejudice, and to take no further action in that case except for action in aid of or

ancillary to the dismissal. Costs taxed against Respondent. Final order. Clerk to

give notice on the parties as required by the Ohio Rules of Civil Procedure.

Waite, J., concurs.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.