[Cite as State ex rel. Vanni v. McMonagle, 2013-Ohio-500.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99507
STATE OF OHIO EX REL., JULIAN VANNI, ET AL. RELATORS
vs.
HONORABLE RICHARD MCMONAGLE RESPONDENT
JUDGMENT: COMPLAINT DISMISSED
Writ of Prohibition Motion No. 462189 Order No. 462259
RELEASED DATE: February 8, 2013
-i- ATTORNEYS FOR RELATORS
Stephen S. Ellsesser Timothy N. Toma Toma & Associates, L.P.A., Inc. 33977 Chardon Road Suite 100 Willoughby Hills, Ohio 44094
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty Cuyahoga County Prosecutor
By: David Lambert Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:
{¶1} The relators, Julian Vanni and Vanni & Associates, Inc., have filed a
complaint for a writ of prohibition. The relators seek to prevent the respondent, Judge
Richard McMonagle, from proceeding to trial in S.W. Sports Ctr, Inc. v. John A. Kleem, et
al., Cuyahoga C.P. Case No. CV-771733. For the following reasons, we sua sponte
dismiss the relators’ complaint for a writ of prohibition.
{¶2} The relators argue that Judge McMonagle is patently and unambiguously
without jurisdiction to conduct a trial in Case No. CV-771733, which is currently
scheduled for February 13, 2013. The relators argue that the appearance of Julian Vanni
as a witness in a prior civil action, Kleem v. S.W. Sports Ctr., Inc., Cuyahoga C.P. Case
No. CV-624066, prevents the trial court from proceeding to trial in Case No. CV-771733.
Specifically, the relators argue that Judge McMonagle “patently and unambiguously
lacks jurisdiction to rule in Case No. CV-771733 because of the jurisdictional rule, claim
preclusion, and witness immunity.”
{¶3} In order for this court to issue a writ of prohibition, the relators are required to
demonstrate each prong of the following three-part test: (1) Judge McMonagle is about to
exercise judicial power; (2) the exercise of judicial power by Judge McMonagle is not
authorized by law; and (3) there exists no other adequate remedy in the ordinary course of the law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). In
addition, prohibition does not lie, if relators have or had an adequate remedy in the
ordinary course of the law, even if the remedy was not employed. State ex rel. Lesher v.
Kainrad, 65 Ohio St.2d 68, 417 N.E.2d 1382 (1981); State ex rel. Sibarco Corp. v. Berea,
7 Ohio St.2d 85, 218 N.E.2d 428 (1966).
{¶4} Prohibition does not lie unless it clearly appears that the court possesses no
jurisdiction of 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).
Also, prohibition will not issue to prevent an erroneous judgment, or serve the purpose of
an appeal, or to correct errors committed by the lower court in deciding questions within
its jurisdiction. State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 90
N.E.2d 598 (1950). Furthermore, prohibition should be used with great caution and not
issue in doubtful cases. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas,
137 Ohio St. 273, 28 N.E.2d 641 (1940).
{¶5} However, when a court is patently and unambiguously without jurisdiction to
act, the existence of an adequate remedy at law will not prevent the issuance of a writ of
prohibition. State ex rel. Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988);
State ex rel. Csank v. Jaffe, 107 Ohio App.3d 387, 668 N.E.2d 996 (8th Dist. 1995).
Nevertheless, absent a patent and unambiguous lack of jurisdiction, a court possessing
general jurisdiction of the subject matter of an action has the authority to determine its
own jurisdiction. A party challenging the court’s jurisdiction possesses an adequate remedy at law through an appeal from the court’s judgment that it possesses 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); State ex rel. Bradford v. Trumbull Cty.
Court, 64 Ohio St.3d 502, 1992-Ohio-132, 597 N.E.2d 116. Also, this court possesses
discretion in issuing a writ of prohibition. State ex rel. Gilligan v. Hoddinott, 36 Ohio
St.2d 127, 304 N.E.2d 382 (1973).
{¶6} Initially, we find that the jurisdictional-priority rule does not divest Judge
McMonagle of jurisdiction based upon the facts presented by the relators. It is a
condition of the jurisdictional-priority rule that the claims and parties be the same in both
cases, so if the second case is not for the same cause of action, nor between the same
parties, the former suit will not prevent the latter. Herein, the relators were not parties in
Case No. CV-624066. Thus, the jurisdictional-priority rule is not applicable under the
facts presented by the relators. State ex rel. Otten v. Henderson, 129 Ohio St.3d 453,
2011-Ohio-4082, 953 N.E.2d 809; State ex rel. Judson v. Spahr, 33 Ohio St.3d 111, 515
N.E.2d 911 (1987).
{¶7} The doctrine of res judicata encompasses the two related concepts of claim
preclusion, also known as res judicata or estoppel by judgment, and issue preclusion, also
known as collateral estoppel. Grava v. Parkman Twp., 73 Ohio St.3d 379,
1995-Ohio-331, 653 N.E.2d 226. However, res judicata is an affirmative defense that
does not divest the jurisdiction of the second tribunal to decide the validity of that defense.
State ex rel. Flower v. Rocker, 52 Ohio St.2d 160, 370 N.E.2d 479 (1977). A writ of prohibition will not issue herein, because Judge McMonagle possesses the jurisdiction to
rule on the affirmative defense of res judicata. State ex rel. LTV Steel Co. v. Gwin, 64
Ohio St.3d 245, 1992-Ohio-20, 594 N.E.2d 616.
{¶8} In addition, it is well-established that judges, counsel, parties, and witnesses
are immune from civil suits for defamatory remarks made during and relevant to judicial
proceedings. Willitzer v. McCloud, 6 Ohio St.3d 447, 453 N.E.2d 693 (1983).
Immunity, however, is an affirmative defense that must be raised by the relators and thus
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[Cite as State ex rel. Vanni v. McMonagle, 2013-Ohio-500.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99507
STATE OF OHIO EX REL., JULIAN VANNI, ET AL. RELATORS
vs.
HONORABLE RICHARD MCMONAGLE RESPONDENT
JUDGMENT: COMPLAINT DISMISSED
Writ of Prohibition Motion No. 462189 Order No. 462259
RELEASED DATE: February 8, 2013
-i- ATTORNEYS FOR RELATORS
Stephen S. Ellsesser Timothy N. Toma Toma & Associates, L.P.A., Inc. 33977 Chardon Road Suite 100 Willoughby Hills, Ohio 44094
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty Cuyahoga County Prosecutor
By: David Lambert Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:
{¶1} The relators, Julian Vanni and Vanni & Associates, Inc., have filed a
complaint for a writ of prohibition. The relators seek to prevent the respondent, Judge
Richard McMonagle, from proceeding to trial in S.W. Sports Ctr, Inc. v. John A. Kleem, et
al., Cuyahoga C.P. Case No. CV-771733. For the following reasons, we sua sponte
dismiss the relators’ complaint for a writ of prohibition.
{¶2} The relators argue that Judge McMonagle is patently and unambiguously
without jurisdiction to conduct a trial in Case No. CV-771733, which is currently
scheduled for February 13, 2013. The relators argue that the appearance of Julian Vanni
as a witness in a prior civil action, Kleem v. S.W. Sports Ctr., Inc., Cuyahoga C.P. Case
No. CV-624066, prevents the trial court from proceeding to trial in Case No. CV-771733.
Specifically, the relators argue that Judge McMonagle “patently and unambiguously
lacks jurisdiction to rule in Case No. CV-771733 because of the jurisdictional rule, claim
preclusion, and witness immunity.”
{¶3} In order for this court to issue a writ of prohibition, the relators are required to
demonstrate each prong of the following three-part test: (1) Judge McMonagle is about to
exercise judicial power; (2) the exercise of judicial power by Judge McMonagle is not
authorized by law; and (3) there exists no other adequate remedy in the ordinary course of the law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). In
addition, prohibition does not lie, if relators have or had an adequate remedy in the
ordinary course of the law, even if the remedy was not employed. State ex rel. Lesher v.
Kainrad, 65 Ohio St.2d 68, 417 N.E.2d 1382 (1981); State ex rel. Sibarco Corp. v. Berea,
7 Ohio St.2d 85, 218 N.E.2d 428 (1966).
{¶4} Prohibition does not lie unless it clearly appears that the court possesses no
jurisdiction of 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).
Also, prohibition will not issue to prevent an erroneous judgment, or serve the purpose of
an appeal, or to correct errors committed by the lower court in deciding questions within
its jurisdiction. State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 90
N.E.2d 598 (1950). Furthermore, prohibition should be used with great caution and not
issue in doubtful cases. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas,
137 Ohio St. 273, 28 N.E.2d 641 (1940).
{¶5} However, when a court is patently and unambiguously without jurisdiction to
act, the existence of an adequate remedy at law will not prevent the issuance of a writ of
prohibition. State ex rel. Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988);
State ex rel. Csank v. Jaffe, 107 Ohio App.3d 387, 668 N.E.2d 996 (8th Dist. 1995).
Nevertheless, absent a patent and unambiguous lack of jurisdiction, a court possessing
general jurisdiction of the subject matter of an action has the authority to determine its
own jurisdiction. A party challenging the court’s jurisdiction possesses an adequate remedy at law through an appeal from the court’s judgment that it possesses 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); State ex rel. Bradford v. Trumbull Cty.
Court, 64 Ohio St.3d 502, 1992-Ohio-132, 597 N.E.2d 116. Also, this court possesses
discretion in issuing a writ of prohibition. State ex rel. Gilligan v. Hoddinott, 36 Ohio
St.2d 127, 304 N.E.2d 382 (1973).
{¶6} Initially, we find that the jurisdictional-priority rule does not divest Judge
McMonagle of jurisdiction based upon the facts presented by the relators. It is a
condition of the jurisdictional-priority rule that the claims and parties be the same in both
cases, so if the second case is not for the same cause of action, nor between the same
parties, the former suit will not prevent the latter. Herein, the relators were not parties in
Case No. CV-624066. Thus, the jurisdictional-priority rule is not applicable under the
facts presented by the relators. State ex rel. Otten v. Henderson, 129 Ohio St.3d 453,
2011-Ohio-4082, 953 N.E.2d 809; State ex rel. Judson v. Spahr, 33 Ohio St.3d 111, 515
N.E.2d 911 (1987).
{¶7} The doctrine of res judicata encompasses the two related concepts of claim
preclusion, also known as res judicata or estoppel by judgment, and issue preclusion, also
known as collateral estoppel. Grava v. Parkman Twp., 73 Ohio St.3d 379,
1995-Ohio-331, 653 N.E.2d 226. However, res judicata is an affirmative defense that
does not divest the jurisdiction of the second tribunal to decide the validity of that defense.
State ex rel. Flower v. Rocker, 52 Ohio St.2d 160, 370 N.E.2d 479 (1977). A writ of prohibition will not issue herein, because Judge McMonagle possesses the jurisdiction to
rule on the affirmative defense of res judicata. State ex rel. LTV Steel Co. v. Gwin, 64
Ohio St.3d 245, 1992-Ohio-20, 594 N.E.2d 616.
{¶8} In addition, it is well-established that judges, counsel, parties, and witnesses
are immune from civil suits for defamatory remarks made during and relevant to judicial
proceedings. Willitzer v. McCloud, 6 Ohio St.3d 447, 453 N.E.2d 693 (1983).
Immunity, however, is an affirmative defense that must be raised by the relators and thus
does not divest Judge McMonagle of jurisdiction to proceed to trial in Case No.
CV-771733. See Civ.R. 8(C); Spence v. Liberty Twp. Trustees, 109 Ohio App.3d 357,
672 N.E.2d 213 (4th Dist. 1996); Hawk v. Ketterer, 3d Dist. No. 1-03-53,
2003-Ohio-6389.
{¶9} Finally, we find that the relators possess an adequate remedy in the ordinary
course of the law. The defenses of the jurisdictional-priority rule, res judicata (claim
preclusion), and witness immunity either have been raised or can be raised before Judge
McMonagle by way of a motion to dismiss and/or motion for summary judgment. Thus,
the relators possess an adequate remedy at law, if the aforesaid affirmative defenses are
rejected as a bar to legal action. State ex rel. Jaffal v. Calabrese, 105 Ohio St.3d 440,
2005-Ohio-2591, 828 N.E.2d 107.
{¶10} Therefore, we find that Judge McMonagle does not patently and
unambiguously lack jurisdiction to conduct a trial and proceed to judgment in Case No.
CV-771733 and that the relators possesses an adequate remedies in the ordinary course of the law.
{¶11} Accordingly, we sua sponte dismiss the relators’ complaint for a writ of
prohibition. Relators to pay costs. The court directs the clerk of court to serve notice of
this judgment and its date of entry upon all parties as required by Civ.R. 58(B).
{¶12} Complaint dismissed.
PATRICIA ANN BLACKMON, JUDGE
EILEEN A. GALLAGHER, P.J., and EILEEN T. GALLAGHER, J., CONCUR