State ex rel. Suburban Construction Co. v. Skok

710 N.E.2d 710, 85 Ohio St. 3d 645

• Court: Ohio Supreme Court
• Decided: June 16, 1999
• Docket: No. 98-2704
• Status: Published

Opinion

Per Curiam.

Suburban asserts in its propositions of law that the court of appeals erred in dismissing its prohibition complaint. The court of appeals’ dismissal of Suburban’s complaint for failure to ■ state a claim upon which relief can be granted is appropriate if, after all factual allegations of the complaint are presumed true and all reasonable inferences are made in Suburban’s favor, it appears beyond doubt that Suburban can prove no set of facts warranting relief. Clark v. Connor (1998), 82 Ohio St.3d 309, 311, 695 N.E.2d 751, 754.

In order to be entitled to the requested extraordinary relief in prohibition, Suburban must establish that (1) Judge Skok is about to exercise judicial power, (2) Judge Skok’s exercise of judicial power is legally unauthorized, and (3) the denial of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335, 336, 686 N.E.2d 267, 268. Here, Suburban sufficiently alleged that Judge Skok is exercising judicial power in the appropriation cases. At issue is whether the judge’s exercise of this power is unauthorized and causes injury to Suburban for which it has no other adequate legal remedy.

Regarding these remaining requirements for a writ of prohibition, in the absence of a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party contesting the court’s jurisdiction has an adequate legal remedy by appeal. State ex rel. Red Head Brass, Inc. v. Holmes Cty. Court of Common Pleas (1997), 80 Ohio St.3d 149, 152, 684 N.E.2d 1234, 1237.

Suburban initially claims that Judge Skok patently and unambiguously lacks personal jurisdiction to proceed in the appropriation cases because service was never perfected on it in these cases.

Suburban’s claim is not cognizable in prohibition. If contested allegations of defective service of process are not premised upon a complete failure to comply with the minimum-contacts requirement of constitutional due process, prohibition does not lie. See State ex rel. Gelman v. Lorain Cty. Court of Common Pleas (1961), 172 Ohio St. 73, 74, 15 O.O.2d 132, 133, 173 N.E.2d 344, 345; State ex rel. Ruessman v. Flanagan (1992), 65 Ohio St.3d 464, 467-468, 605 N.E.2d 31, 35.

In Gelman, we denied a writ of prohibition where relator’s complaint alleged that service was defective and that the trial court erred in overruling a motion to quash service, and the trial court claimed in its answer that service had been properly perfected.

We similarly denied a writ of prohibition in Ruessman, where the relator contended “that respondents lack personal jurisdiction because [relator] has not been served with a copy of the petition below.” 65 Ohio St.3d at 467, 605 N.E.2d at 35. We stated that “a patent and unambiguous lack of jurisdiction is not present in the ease before us. Here, respondents assert that relator was duly served a copy of the petition, and relator challenged service by filing a motion to quash, which is pending below. Accordingly, we find it appropriate for the trial court to consider the pending motion and that relator’s appropriate remedy is through appeal.” Id. at 467-468, 605 N.E.2d at 35. By so holding, we distinguished State ex rel. Connor v. McGough (1989), 46 Ohio St.3d 188, 546 N.E.2d 407, where we granted a writ of prohibition because the Due Process Clause of the Fourteenth Amendment patently and unambiguously prevented the trial court from assuming personal jurisdiction over a nonresident defendant who had no minimum contacts with this state.

The foregoing conclusions are consistent with our precedent that issuance of a writ of prohibition based on the alleged lack of personal jurisdiction is, even more than a claimed lack of subject-matter jurisdiction, an “extremely rare occurrence.” Clark v. Connor (1998), 82 Ohio St.3d 309, 315, 695 N.E.2d 751, 757. In those extremely rare cases where we issued the writ, the lack of personal jurisdiction was “premised on a complete failure to comply with constitutional due process.” See Fraiberg v. Cuyahoga Cty. Court of Common Pleas, Domestic Relations Div. (1996), 76 Ohio St.3d 374, 378, 667 N.E.2d 1189, 1193, distinguishing State ex rel. Connor, supra, and State ex rel. Stone v. Court (1984), 14 Ohio St.3d 32, 14 OBR 333, 470 N.E.2d 899. Here, unlike State ex rel. Connor and Stone, Suburban does not assert that it lacks sufficient due-process minimum contacts with Lake County. Fraiberg, 76 Ohio St.3d at 378, 667 N.E.2d at 1193. And like Gelman and Ruessman, there is an issue about whether service on Suburban in the appropriation cases has been perfected. Consequently, Suburban has adequate legal remedies by motions to quash service, motions to vacate the default judgments, and appeal to raise its personal jurisdiction claim. By so holding, we need not expressly rule on the merits of Suburban’s claim. Goldstein v. Christiansen (1994), 70 Ohio St.3d 232, 238, 638 N.E.2d 541, 545.

Suburban also claims that Judge Skok erred by intending to direct a verdict on valuation and not granting Suburban a continuance to prepare for the scheduled trial. But these claims do not patently and unambiguously divest Judge Skok of jurisdiction, and Suburban has an adequate remedy by appeal. “The extraordinary remedy of prohibition may not be employed before trial on the merits, as a substitute for appeal to review mere errors or irregularities of a court having jurisdiction.” Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm. (1995), 74 Ohio St.3d 120, 123, 656 N.E.2d 684, 688.

Finally, the mere fact that Suburban may lose its right to enter and take possession of the property pending appeal, see R.C. 163.15 and 163.19, does not render appeal an inadequate remedy. If Suburban prevails on appeal, it would be entitled to repossess the property. Under R.C. 163.19, the trial court can require that Mentor “give adequate security for any further compensation and costs” pending appeal in order to cover any damages from a temporary loss of possession of the property pending appeal. And, as noted by Judge Skok, R.C. 163.22 permits Courts to hear appeals pursuant to R.C. 163.19 in appropriation cases on an expedited basis.

Based on the foregoing, the court of appeals did not err in granting Judge Skok’s motion and dismissing the prohibition action. Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.