State ex rel. Vetus Partners, L.L.C. v. Calabrese

2011 Ohio 2802

• Court: Ohio Court of Appeals
• Decided: June 9, 2011
• Docket: 96544
• Status: Published

Opinion

[Cite as State ex rel. Vetus Partners, L.L.C. v. Calabrese, 2011-Ohio-2802.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96544

STATE OF OHIO, EX REL., VETUS PARTNERS, LLC, ET AL.

RELATOR vs.

JUDGE DEENA R. CALABRESE

RESPONDENT

JUDGMENT: COMLAINT DISMISSED

Writ of Prohibition and Mandamus Motion No. 443901 Order No. 444223

RELEASE DATE: June 3, 2011

ATTORNEYS FOR RELATOR

Jeffrey C. Miller Nicholas J. Debaltzo, Jr. Johnson Miller & Schmitz LLP 635 W. Lakeside Avenue Suite 600 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

For: Judge Deena R. Calabrese

William D. Mason Cuyahoga County Prosecutor

BY: Charles E. Hannan, Jr. Assistant Prosecuting Attorney The Justice Center, 8 Floor ht

1200 Ontario Street Cleveland, Ohio 44113

For: PCE Management, Inc., et al.

Kathryn W. Pascover Ford & Harrison LLP 795 Ridge Lake Blvd. Suite 300 Memphis, TN 38120 LARRY A. JONES, J.:

{¶ 1} Vetus Partners, LLC and Vetus Securities, LLC (hereinafter

referred to as “Vetus”) have filed a complaint for a writ of prohibition and a

writ of mandamus. Vetus seeks to prevent Judge Deena R. Calabrese from

exercising any continued jurisdiction in the underlying action of PCE Mgt.,

Inc. v. Skelly, Cuyahoga County Court of Common Pleas Case No. CV-728042.

Specifically, Vetus seeks: (1) a writ of prohibition that prevents Judge

Calabrese “from conducting any proceedings and/or otherwise ruling” on a

motion for contempt and sanction; and (2) a writ of mandamus “to require

[Judge Calabrese] to remove an order from her docket which granted a motion

to compel production of documents pursuant to an out-of-state subpoena * * *.”

Judge Calabrese has filed a motion to dismiss, which we grant for the

following reasons.

Facts

{¶ 2} The following facts are gleaned from the complaint for writs of

prohibition and mandamus, Judge Calabrese’s motion to dismiss, and Vetus’s

brief in opposition to the motion to dismiss:

{¶ 3} (1) On May 28, 2010, PCE Mgt. (“PCE”), an entity that is not a

party to this original action, filed a petition and commission for the issuance of

out-of-state subpoenas duces tecum in PCE Mgt., Inc. v. Skelly. The petition

was assigned to the docket of Judge Calabrese; {¶ 4} (2) The purpose of the petition and commission for the issuance of

out-of-state subpoenas duces tecum was to obtain discovery records from

Vetus, for use in a legal action that was pending in the Circuit Court of the

Ninth Judicial Circuit in Orange County, Florida;

{¶ 5} (3) On June 1, 2010, Judge Calabrese issued an order granting the

petition for the issuance of out-of-state subpoenas, ordering that the

subpoenas duces tecum be served upon Vetus;

{¶ 6} (4) On August 16, 2010, an order that dismissed the petition for

the issuance of out-of-state subpoenas was journalized. The order provided

that: “[u]pon telephonic advice of plaintiff’s counsel Kay Wolf on 8/13/10, case

is dismissed * * *.”

{¶ 7} (5) On September 1, 2010, PCE filed a motion to reopen the

underlying action of PCE Mgt., Inc. v. Skelly;

{¶ 8} (6) On September 7, 2010, Judge Calabrese granted the motion to

reopen PCE Mgt., Inc. v. Skelly;

{¶ 9} (7) On February 2, 2011, PCE filed a motion to compel production

of documents from Vetus;

{¶ 10} (8) On February 15, 2011, an order that dismissed the petition for

the issuance of out-of-state subpoenas was journalized. The order provided

that: “[p]ursuant to telephone conversation with attorney Perry, this mattered

[sic] is hereby dismissed * * *.” {¶ 11} (9) On February 22, 2011, Judge Calabrese issued an order that

granted the motion to compel production of documents. The order provided

that: “[p]ending before the court is plaintiffs’ motion to compel production from

non-parties Vetus Partners, LLC and Vetus Securities, LLC (hereinafter

referred to collectively as ‘Vetus’). Vetus never filed a motion to quash the

subpoena at issue, and has not opposed plaintiffs’ motion to compel. Upon

careful review of plaintiffs’ brief and supporting materials, the court concludes

that plaintiffs’ arguments are well-taken, and the motion to compel is hereby

granted * * *.”

{¶ 12} (10) On March 2, 2011, Vetus complied with the terms of the

subpoenas duces tecum and the order to compel and provided PCE with the

requested documents;

{¶ 13} (11) On March 9, 2011, PCE filed a motion for contempt and

sanctions against Vetus;

{¶ 14} (12) On March 16, 2011, Vetus filed this original action for writs of

prohibition and mandamus. Vetus also filed an application for an alternative

writ, which was denied by this court on March 23, 2011;

{¶ 15} (13) On April 26, 2011, Judge Calabrese filed her motion to

dismiss;

{¶ 16} (14) On April 26, 2011, Judge Calabrese issued an order that

stayed consideration of the motion for contempt and sanctions pending disposition of this original action;

{¶ 17} (15) On May 13, 2011, Vetus filed a brief in opposition to the

motion to dismiss.

Legal Analysis

Vetus’s Claim for Prohibition

{¶ 18} In order for this court to issue a writ of prohibition, Vetus must

establish that (1) Judge Calabrese is about to exercise judicial or quasi-judicial

power, (2) the exercise of that power is not authorized by law, and (3) denying

the writ will result in injury for which no other adequate remedy exists in the

ordinary course of the law. State ex rel. Sliwinski v. Burnham Unruh, 118

Ohio St.3d 76, 2008-Ohio-1734, 886 N.E.2d 210; State ex rel. Lipinski v.

Cuyahoga Cty. Court of Common Pleas, 74 Ohio St.3d 19, 1995-Ohio-96, 655

N.E.2d 1303. An adequate remedy at law will preclude relief in prohibition.

State ex rel. Lesher v. Kainrad (1981), 65 Ohio St.2d 68, 417 N.E.2d 1382;

State ex rel. Sibarco Corp. v. Berea (1966), 7 Ohio St.2d 85, 218 N.E.2d 428.

{¶ 19} Furthermore, absent a patent and unambiguous lack of

jurisdiction, a court having general subject-matter jurisdiction over an action

possesses the legal authority to determine its own jurisdiction, and a party

challenging its jurisdiction possesses an adequate remedy at law by way of a

post-judgment appeal. Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm., 74

Ohio St.3d 120, 1995-Ohio-302, 656 N.E.2d 684. Finally, an appeal does not constitute an adequate remedy at law if the court patently and unambiguously

lacks jurisdiction over the action. State ex rel. Lewis v. Moser (1995), 72 Ohio

St.3d 25, 647 N.E.2d 155.

{¶ 20} Herein, Vetus claims that Judge Calabrese patently and

unambiguously lacks the necessary jurisdiction to conduct a hearing and

render a ruling with regard to a motion for contempt and sanctions. Vetus

argues that the order of Judge Calabrese, as journalized on February 15, 2011,

which dismissed the underlying action of PCE Mgt., Inc. v. Skelly, divested

her of any jurisdiction to hear and determine the motion for contempt and

sanctions.

{¶ 21} It is clear that Judge Calabrese, as a judge of the Cuyahoga

County Court of Common Pleas, possesses or possessed original general

jurisdiction in the underlying action of PCE Mgt., Inc. v. Skelly. Section

4(B), Article IV of the Ohio Constitution, BCL Ent., Inc. v. Ohio Dept. of

Liquor Control, 77 Ohio St.3d 467, 1997-Ohio-254, 675 N.E.2d 1; Schucker v.

Metcalf (1986), 22 Ohio St.3d 33, 488 N.E.2d 210; Dumas v. Estate of Dumas,

68 Ohio St.3d 405, 1994-Ohio-312, 627 N.E.2d 978. In addition, R.C. 2319.09

vested Judge Calabrese with the necessary jurisdiction to hear PCE’s petition

for the issuance of out-of-state subpoenas duces tecum. E.I. DuPont de

Nemours & Co. v. Thompson (1986), 29 Ohio App.3d 272, 504 N.E.2d 1195.

{¶ 22} Finally, Judge Calabrese, despite the dismissal of PCE Mgt., Inc. v. Skelly, possesses continuing jurisdiction over all collateral matters, such

as the pending motion for contempt and sanctions.

{¶ 23} “It is equally true, however, that despite a voluntary dismissal

under Civ.R. 41(A)(1), a trial court may consider certain collateral issues not

related to the merits of the action. See Cooter & Gell v. Hartmarx Corp. (1990),

496 U.S. 384, 396, 110 S.Ct. 2447, 110 L.Ed.2d 359 (trial court retains

jurisdiction to determine Fed.R.Civ.P. 11 sanctions after the principal suit has

been terminated); State ex rel. Corn v. Russo (2001), 90 Ohio St.3d 551, 556,

740 N.E.2d 265 (court may consider the collateral issue of criminal contempt

even after the underlying action is no longer pending); Grossman v. Mathless

& Mathless, C.P.A. (1993), 85 Ohio App.3d 525, 528, 620 N.E.2d 160 (trial

court may entertain an R.C. 2323.51 motion to impose sanctions for frivolous

conduct even though underlying case has been voluntarily dismissed).” State

ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771 N.E.2d 853,

¶23.

{¶ 24} In the case sub judice, after construing all material facts and

reasonable inferences on behalf of Vetus, we find that Vetus can prove no set

of facts that allows for the extraordinary relief of prohibition. State ex rel.

Ahmed v. Costine, 100 Ohio St.3d 36, 2003-Ohio-4776, 795 N.E.2d 672; State

ex rel. Benbow v. Runyan, 99 Ohio St.3d 410, 2003-Ohio-4127, 792 N.E.2d

1124; State ex rel. Fifth Third Mtge. Co. v. Russo, Cuyahoga App. Nos. 94816, 94817, 94818, 2010-Ohio-3734. Vetus has failed to establish that Judge

Calabrese patently and unambiguously lacks the necessary jurisdiction to

entertain the motion for contempt and sanctions and the complaint for a writ

of prohibition fails on its face. Thus, Judge Calabrese is entitled to dismissal

of the claim for a writ of prohibition.

Vetus’s Claim for Mandamus

{¶ 25} In order for this court to issue a writ of mandamus, Vetus must

demonstrate that: (1) Vetus possesses a clear legal right to a requested judicial

act; (2) Judge Calabrese possesses a clear legal duty to perform the requested

judicial act; and (3) there exists no other adequate remedy in the ordinary

course of the law. State ex rel. Harris v. Rhodes (1978), 54 Ohio St.2d 41, 374

N.E.2d 641; State ex rel. Natl. City Bank v. Bd. of Edn. (1977), 52 Ohio St.2d

81, 369 N.E.2d 1200. Mandamus may not be employed to control judicial

discretion. State ex rel. Dreamer v. Mason, 115 Ohio St.3d 190,

2007-Ohio-4789, 874 N.E.2d 510.

{¶ 26} Vetus, through its claim for mandamus, seeks an order that

requires Judge Calabrese to vacate the order of February 22, 2011, which

granted PCE’s motion to compel production from Vetus. Vetus, however, has

failed to establish that it possesses any clear legal right or that Judge

Calabrese possesses any clear legal duty to vacate the order that granted the

motion to compel production. State ex rel. MetroHealth Med. Ctr. v. Sutula, 110 Ohio St.3d 201, 2006-Ohio-4249, 852 N.E.2d 722. In addition, Vetus

possesses or possessed an adequate remedy at law through a direct appeal of

the order that granted the motion to compel. State ex rel. Hughley v.

McMonagle, 121 Ohio St.3d 536, 2009-Ohio-1703, 905 N.E.2d 1220; State ex

rel. Jaffal v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107.

Vetus has failed to establish any grounds that warrant the issuance of a writ

of mandamus.

{¶ 27} Finally, it must also be noted that Vetus, on March 2, 2011,

complied with the terms of the subpoenas duces tecum and the order to

compel. Vetus provided PCE with the requested documents. The provision

of the requested documents to PCE renders any claim for a writ of mandamus

moot. Cf. State ex rel. Jerninghan v. Cuyahoga Cty. Court of Common Pleas,

74 Ohio St.3d 278, 1996-Ohio-117, 658 N.E.2d 723; State ex rel. Gantt v.

Coleman (1983), 6 Ohio St.3d 5, 450 N.E.2d 1163.

{¶ 28} Accordingly, we grant Judge Calabrese’s motion to dismiss. Costs

to Vetus. It is further ordered that the Clerk of the Eighth District Court of

Appeals serve notice of this judgment upon all parties as required by Civ.R.

58(B).

Complaint dismissed. LARRY A. JONES, JUDGE

MARY J. BOYLE P.J., and KENNETH A. ROCCO, J., CONCUR