State ex rel. Neff v. Corrigan

661 N.E.2d 170, 75 Ohio St. 3d 12
Ohio Supreme Court·Decided March 1, 1996·No. No. 95-553·Published·Cited by 99 cases

Opinions

Douglas, J.

Appellant asserts in his first proposition of law that the court of appeals erred in granting Judge Corrigan’s and Litzow’s Civ.R. 12(B)(6) motions to dismiss for failure to state a claim upon which relief can be granted and Donahue & Scanlon and Porter’s Civ.R. 12(F) motion to strike. In order to dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted, after all factual allegations are presumed true and all reasonable inferences are made in favor of the nonmoving party, it must appear beyond doubt from the complaint that the relator/plaintiff can prove no set of facts warranting relief. State ex rel. Williams Ford Sales, Inc. v. Connor (1995), 72 Ohio St.3d 111, 113, 647 N.E.2d 804, 806.

As to the motion to strike, Civ.R. 12(F) provides that on motion of a party, “the court may order stricken from any pleading any insufficient claim or defense or any redundant, immaterial, impertinent or scandalous matter.” The motion to strike attacked the sufficiency of appellant’s complaint in its entirety. While an insufficient complaint may be subject to a Civ.R. 12(F) motion to strike, these motions should not be used as a substitute for a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. See, e.g., McCormac, Ohio Civil Rules Practice (2 Ed.1992) 140, Section 6.10. Instead, a Civ.R. 12(B)(6) motion to dismiss is directed to the entire pleading, whereas a Civ.R. 12(F) motion to strike based on insufficiency of a claim should only be used to attack individual claims which are not dispositive of the entire action. See, generally, Browne, Motions to Strike, Ohio Civil Practice Journal (January/Feb[15]*15ruary 1990) 29-30; 1 Klein, Browne & Murtaugh, Baldwin’s Ohio Civil Practice (1995) 62, Section T 15.01(A)(1)(b); Staff Note 6 to Civ.R. 12. Nevertheless, a trial court’s erroneous use of Civ.R. 12(F) in lieu of Civ.R. 12(B)(6) where the issue is sufficiency of an entire complaint does not constitute reversible error based on a mere misdesignation of the appropriate motion, since the question of sufficiency is adequately raised. See, e.g., State ex rel. Walton v. Hunter (1990), 53 Ohio St.3d 269, 559 N.E.2d 1362 (affirmance of Civ.R. 12[F] motion to strike entire pleading based on its insufficiency). However, the better practice is to use a Civ.R. 12(B)(6) motion, rather than a Civ.R. 12(F) motion, where the sufficiency of the entire complaint is at issue.

Applying the Civ.R. 12(B)(6) standard to the various claims raised in appellant’s complaint, we note that appellant placed primary emphasis on extraordinary relief in prohibition and mandamus against Judge Corrigan. Appellant’s claim for a writ of prohibition was limited to preventing Judge Corrigan from conducting any further proceedings on attorney fees previously paid to appellant in the Borgh estate. In order to be entitled to a writ of prohibition, appellant has to establish (1) that Judge Corrigan is about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359, 626 N.E.2d 950, 952. Absent a patent and unambiguous lack of jurisdiction, a court having general jurisdiction can determine its own jurisdiction, and a party challenging the court’s jurisdiction has an adequate remedy by appeal. State ex rel. Enyart v. O’Neill (1995), 71 Ohio St.3d 655, 656, 646 N.E.2d 1110, 1112.

Appellant contends that Judge Corrigan patently and unambiguously lacked jurisdiction to consider Porter’s motion to withdraw consent of the beneficiaries to the Borgh estate to attorney fees paid to appellant. Appellant claims that Judge Corrigan lacked jurisdiction after a prior executor’s appeals were dismissed following settlement. Appellant relies on State ex rel. Special Prosecutors v. Judges of Belmont Cty. Court of Common Pleas (1978), 55 Ohio St.2d 94, 9 O.O.3d 88, 378 N.E.2d 162 (writ of prohibition allowed to prevent trial court from proceeding with trial after granting a postsentence motion to withdraw guilty plea after appeal from judgment of conviction and sentence had been affirmed on appeal because allowing the withdrawal of the plea was inconsistent with the court of appeals’ judgment).

When a case has been appealed, the trial court retains all jurisdiction not inconsistent with the reviewing court’s jurisdiction to reverse, modify, or affirm the judgment. Howard v. Catholic Soc. Serv. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141, 147, 637 N.E.2d 890, 895. As the court of appeals determined, [16]*16the settled appeals did not involve the attorney fees issue. See Marshall Cty. Health Care Auth. v. Shalala (C.A.D.C.1993), 988 F.2d 1221; Watterson v. Page (C.A.1, 1993), 987 F.2d 1; and Kramer v. Time Warner, Inc. (C.A.2, 1991), 937 F.2d 767, 773, allowing courts to take judicial notice of appropriate matters in considering a motion to dismiss for failure to state a claim under the similarly worded Fed.R.Civ.P. 12(b)(6) without having to convert it to a motion for summary judgment; see, also, First Michigan Bank & Trust Co. v. P. & S. Bldg. (Feb. 16, 1989), Meigs App. No. 413, unreported, at 6, 1989 WL 11915 (“Conceivably a court may take judicial notice of adjudicative facts under Evid.R. 201 in determining a Civ.R. 12[B][6] motion * * *.”).

Further, even if the attorney fees matter had been raised in the prior appeals, once those appeals were dismissed, Judge Corrigan possessed jurisdiction to consider Porter’s motion. State ex rel. Newton v. Court of Claims (1995), 73 Ohio St.3d 553, 558, 653 N.E.2d 366, 371; see, also, R.C. 2113.36 (“When an attorney has been employed in the administration of the estate, reasonable attorney fees paid by the executor or administrator shall be allowed as a part of the expenses of administration.”). Judge Corrigan acted within his jurisdiction to consider Porter’s motion, and appellant possessed an adequate remedy at law. Therefore, Special Prosecutors is inapposite, and the court of appeals did not err in dismissing appellant’s prohibition claim against Judge Corrigan because it is beyond doubt that appellant could not prove any set of facts entitling him to a writ of prohibition.

Appellant also sought a writ of mandamus compelling Judge Corrigan to open the journals of the probate court to public inspection and to correct the record in the probate court cases relating to the Gerber estate.

Free access — add to your briefcase to read the full text and ask questions with AI

State ex rel. Neff v. Corrigan, 661 N.E.2d 170, 75 Ohio St. 3d 12 (Ohio 1996).

661 N.E.2d 170 (State ex rel. Neff v. Corrigan) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

FIG as Custodian for FIG OH18, L.L.C. v. Jones
2024 Ohio 5116 (Ohio Court of Appeals, 2024)
Gold v. Bertram
2023 Ohio 4567 (Ohio Court of Appeals, 2023)
State ex rel. Mather v. Oda
2023 Ohio 3907 (Ohio Supreme Court, 2023)
Slodov v. Eagle Ridge Subdivision Property Owner's Assn., Inc.
2023 Ohio 3688 (Ohio Court of Appeals, 2023)
State ex rel. Dodson v. Held Phipps
2023 Ohio 3639 (Ohio Court of Appeals, 2023)
State ex rel. Roush v. Hickson
2023 Ohio 1696 (Ohio Supreme Court, 2023)
State ex rel. Orr v. Corrigan
2022 Ohio 3924 (Ohio Court of Appeals, 2022)
Shaut v. Roberts
2022 Ohio 817 (Ohio Court of Appeals, 2022)
Conaway v. Mt. Orab
2021 Ohio 4041 (Ohio Court of Appeals, 2021)
Fontain v. Sandhu
2021 Ohio 2750 (Ohio Court of Appeals, 2021)
State ex rel. Sands v. Culotta
2019 Ohio 925 (Ohio Court of Appeals, 2019)
In re Forfeiture of Property of Astin
2018 Ohio 1723 (Ohio Court of Appeals, 2018)
Thomas v. Othman
2017 Ohio 8449 (Ohio Court of Appeals, 2017)
Cox v. Oliver
2015 Ohio 3384 (Ohio Court of Appeals, 2015)
State v. Furr
2014 Ohio 1319 (Ohio Court of Appeals, 2014)
State ex rel. Budgake v. Canton
2014 Ohio 903 (Ohio Court of Appeals, 2014)
Glazer v. Chase Home Fin., L.L.C.
2013 Ohio 5589 (Ohio Court of Appeals, 2013)
Ghaster v. Rocky River
2013 Ohio 5587 (Ohio Court of Appeals, 2013)
Miller v. Med. Mut. of Ohio
2013 Ohio 3179 (Ohio Court of Appeals, 2013)