[Cite as Lenard v. Bozza,
2012-Ohio-4296.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98242
RICHARD LENARD
PETITIONER
vs.
JUDGE MARY K. BOZZA
RESPONDENT
JUDGMENT:
COMPLAINT DISMISSED
Writ of Prohibition
Motion No. 456107
Order No. 458005
RELEASE DATE: September 18, 2012
FOR PETITIONER
Richard Lenard
Inmate No. 570-627
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, OH 43724
ATTORNEY FOR RESPONDENT
Paul T. Murphy
Law Director
City of Lyndhurst
5843 Mayfield Road
Mayfield Heights, OH 44124
KENNETH A. ROCCO, J.:
{¶1} On April 17, 2012, the petitioner, Richard Lenard, commenced this
prohibition action against the respondent, Judge Mary K. Bozza of the Lyndhurst
Municipal Court. Lenard argues that the respondent judge was without jurisdiction to
adjudicate the underlying case, The Bank of New York v. Jackson, Lyndhurst M.C. No.
09CVG00752, a forcible entry and detainer action, in 2009 because the plaintiff, the Bank
of New York, did not have title to the subject property. Thus, Lenard argues prohibition
will lie to correct the results of the improper judgment. On June 18, 2012, the
respondent judge filed a motion to dismiss on the grounds of adequate remedy at law, and
Lenard filed his brief in opposition on June 25, 2012. For the following reasons, this
court grants the judge’s motion to dismiss.
{¶2} Lenard alleges the following in his complaint: In May 2007, the Bank of New
York obtained the subject premises—197 Richmond Road, Richmond Heights, Ohio—in
a foreclosure sale. On August 1, 2008, the Bank of New York sold the subject
premises to Ryan Jackson for $190,000; Lenard attached a copy of this deed to his
complaint. Then, Jackson leased the subject premises to Lenard on October 1, 2008,
and Lenard moved in November 2008. On April 28, 2009, the Bank of New York
commenced the underlying forcible entry and detainer action against Jackson, Herman
Hunt, and an unknown tenant in the subject premises. Lenard asserts that he never
received service or notice of the underlying case. On May 18, 2009, the respondent
judge granted a writ of restitution to the Bank of New York, and on or about May 30,
2009, the Bank of New York’s “clean out crew” evicted Lenard and his personal
property. Lenard estimates that he was damaged in the amount of $200,000.
{¶3} The docket from the underlying case shows that on February 9, 2010, Lenard
filed a motion to set aside the writ of restitution. He subsequently filed a motion for
summary judgment in April 2010. The Bank of New York moved to strike both
motions, and the respondent judge granted the motions to strike on June 7, 2010. Lenard
appealed that decision in Bank of New York v. Jackson, 8th Dist. No. 95345. However,
this court dismissed the appeal on August 16, 2010, for failure to file the record. On
August 10, 2011, Lenard filed another motion to set aside writ of restitution pursuant to
Civ.R. 60(B). The respondent judge denied the motion on August 22, 2011. Lenard
again appealed to this court, Bank of New York v. Jackson, 8th Dist. No. 97324. Again
this court dismissed the appeal for failure to file the record on November 3, 2011.
Lenard then commenced this prohibition action.
{¶4} The principles governing prohibition are well established. Its requisites are (1)
the respondent against whom it is sought is about to exercise judicial power, (2) the
exercise of such power is unauthorized by law, and (3) there is no adequate remedy at
law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160,
540 N.E.2d 239 (1989).
Furthermore, if a petitioner had an adequate remedy, relief in prohibition is precluded,
even if the remedy was not used. State ex rel. Lesher v. Kainrad,
65 Ohio St.2d 68,
417
N.E.2d 1382 (1981). Prohibition will not lie unless it clearly appears that the court has
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), paragraph three of the syllabus. “The writ will not issue to prevent an erroneous
judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in
deciding questions within its jurisdiction.” State ex rel. Sparto v. Juvenile Court of
Darke Cty.,
153 Ohio St. 64, 65,
90 N.E.2d 598 (1950). Furthermore, it should be used
with great caution and not issue in a doubtful case. State ex rel. Merion v. Tuscarawas
Cty. Court of Common Pleas,
137 Ohio St. 273,
28 N.E.2d 641 (1940). Nevertheless,
when a court is patently and unambiguously without jurisdiction to act whatsoever, the
availability or adequacy of a remedy is immaterial to the issuance of a writ of prohibition.
State ex rel. Tilford v. Crush,
39 Ohio St.3d 174,
529 N.E.2d 1245 (1988). However,
absent such a patent and unambiguous lack of jurisdiction, a court having general
jurisdiction of the subject matter of an action has authority to determine its own
jurisdiction. A party challenging the court’s jurisdiction has an adequate remedy at law
via an appeal from the court’s holding that it has 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). Additionally, prohibition may be used to correct the
results of prior jurisdictionally unauthorized actions. State ex rel. Otten v. Henderson,
129
Ohio St.3d 453,
2011-Ohio-4082,
953 N.E.2d 809. Moreover, the court has discretion in
issuing the writ of prohibition. State ex rel. Gilligan v. Hoddinott,
36 Ohio St.2d 127,
304
N.E.2d 382 (1973).
{¶5} Although Lenard admits that the respondent judge has jurisdiction to
adjudicate forcible entry and detainer actions pursuant to R.C. 1901.18(A)(8), he argues
that she was patently and unambiguously without jurisdiction to hear the underlying case,
because she was really adjudicating a quiet title action. He reasons that because he has
evidence that Ryan Jackson was given title in 2008, she could not award the Bank of New
York possession of the subject premises until she resolved who actually had title.
Because she could not do that, the writ of restitution is void ab initio, and, he concludes,
the writ of prohibition will lie to attack that judgment and correct the effects of the prior
jurisdictionally unauthorized actions.
{¶6} Lenard attached a copy of the Bank of New York’s complaint to his
complaint. It appears to be a forcible entry and detainer complaint. The statutory grant
of jurisdiction under R.C. 1901.18(A)(8) to adjudicate forcible entry and detainer actions
vested Judge Bozza with sufficient jurisdiction to determine her own jurisdiction over the
case. Thus, she was not patently and unambiguously without jurisdiction, and
prohibition will not lie. State ex rel. Adams v. Gusweiler, 30 Ohio St.2d 326,
285
N.E.2d 22 (1972); and State ex rel. Pruitt v. Donnelly, 8th Dist. No. 95518,
2011-Ohio-1252, aff’d,
129 Ohio St.3d 498,
2011-Ohio-4203,
954 N.E.2d 117.
{¶7} Moreover, a motion to vacate pursuant to Civ.R. 60(B) with an appeal
available, if necessary, is an adequate remedy at law which precludes a writ of
prohibition. State ex rel. Feathers v. Hayes/Badger, 11th Dist. No. 2006-P-0092,
2007-Ohio-3852, and State ex rel. Smith v. Celebrezze, 8th Dist. No. 93072,
2009-Ohio-5386. In the present case, Lenard not only had this remedy available, but
pursued it twice. Therefore, prohibition will not lie.
{¶8} Accordingly, this court grants the respondent’s motion to dismiss, and
dismisses this application for a writ of prohibition. Petitioner to pay costs. This court
directs the clerk of court to serve all parties notice of this judgment and its date of entry
upon the journal as required by Civ.R. 58(B).
{¶9} Complaint dismissed.
____________________________________
KENNETH A. ROCCO, JUDGE
JAMES J. SWEENEY, P.J., and
MARY EILEEN KILBANE, J., CONCUR
