2020 Ohio 274
Ohio Ct. App.2020Background
- Cynthia Lundeen (relator) sought a writ of prohibition to stop a sheriff's sale in a Wells Fargo foreclosure (Cuyahoga C.P. CV-16-856890), arguing the trial judge lacked jurisdiction because service on her was not timely perfected.
- Lundeen also asserted Wells Fargo’s proof in the foreclosure relied on inadmissible business-records evidence (Evid.R. 803(6) and R.C. 2317.40).
- She filed the prohibition complaint and an emergency motion to stay the December 2, 2019 sheriff’s sale; this court issued an alternative writ staying the sale pending resolution.
- Wells Fargo moved to intervene; respondents moved to dismiss. Meanwhile, Lundeen had pursued a direct appeal of the foreclosure judgment (the Lundeen Appeal) to this court.
- On January 9, 2020 this court issued an opinion in the Lundeen Appeal affirming the trial court’s grant of summary judgment, rejecting Lundeen’s jurisdictional/service arguments; based on that decision this prohibition action was declared moot and was dismissed, the alternative writ vacated, and Wells Fargo’s motion to intervene denied as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court lacked jurisdiction because Wells Fargo did not effect service within one year | Lundeen: service was not properly perfected within one year, so all orders are void and the court lacks jurisdiction | Respondents/Wells Fargo: court had jurisdiction; service challenge does not defeat subject-matter jurisdiction and was addressed on appeal | Court: Argument rejected as moot because this court already rejected same claim in Lundeen Appeal; trial court retained jurisdiction over parties; prohibition dismissed |
| Whether Wells Fargo’s business-records evidence was inadmissible under Evid.R. 803(6) / R.C. 2317.40 | Lundeen: the evidence admitted in foreclosure was inadmissible and undermines the judgment | Wells Fargo: evidence was sufficient/issue previously considered on appeal | Court: Issue moot in light of appellate decision; not a basis for prohibition |
| Whether writ of prohibition was appropriate (no adequate remedy at law) | Lundeen: extraordinary relief necessary to prevent sale; no adequate remedy by appeal | Respondents: Lundeen had and used an adequate remedy—appeal from the foreclosure judgment | Court: There was an adequate remedy at law (appeal); prohibition inappropriate; dismissal warranted |
| Motion to intervene by Wells Fargo and motions to dismiss | Wells Fargo sought intervention to oppose the writ; respondents sought dismissal | Court: intervention and motions rendered moot by dismissal | Court: Motion to intervene and respondents’ motion to dismiss denied as moot |
Key Cases Cited
- State ex rel. Burtzlaff v. Vickery, 121 Ohio St. 49, 166 N.E. 894 (1929) (defines writ of prohibition as extraordinary writ restraining inferior tribunal from usurping judicial functions)
- State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176, 631 N.E.2d 119 (1994) (three-part test for entitlement to prohibition)
- State ex rel. Eaton Corp. v. Lancaster, 40 Ohio St.3d 404, 534 N.E.2d 46 (1988) (distinguishes challenges to subject-matter jurisdiction in prohibition actions)
- State ex rel. Scott v. Cleveland, 112 Ohio St.3d 324, 859 N.E.2d 923 (2006) (standard for sua sponte dismissal where relator cannot prevail)
- State ex rel. Hawkins v. Haas, 141 Ohio St.3d 98, 21 N.E.3d 1060 (2014) (mootness may be shown by extrinsic evidence)
- State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 874 N.E.2d 516 (2007) (judicial notice may be taken of publicly available court dockets)