SHERLYN JACOBS v. CUYAHOGA COUNTY COURT OF COMMON PLEAS, ET AL.
No. 114946
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
June 6, 2025
[Cite as Jacobs v. Cuyahoga Cty. Court of Common Pleas, 2025-Ohio-2076.]
JOURNAL ENTRY AND OPINION JUDGMENT: WRIT DISMISSED Writ of Prohibition Motion Nos. 583642 and 584517 Order No. 585030
Sherlyn Jacobs, pro se.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Nora E. Poore, Assistant Prosecuting Attorney, for respondent, Judge Ashley Kilbane.
Gallagher Sharp LLP, and Richard C.O. Rezie, and Joseph Monroe, II, for respondent, Calhoun Funeral Home, LLC.
{¶ 1} On March 25, 2025, the relator Sherlyn Jacobs (“Jacobs“) commenced this prohibition action against respondents Judge Ashley Kilbane and the Cuyahoga County Common Pleas Court. Jacobs seeks, inter alia, the following relief: (1) the reversal of the respondent judge‘s granting summary judgment to the defendant in the underlying case, Sherlyn Jacobs, et al., v. Calhoun Funeral Home, LLC, et al., Cuyahoga C.P. No. CV-23-979882 — Jacobs alleges that this judgment was tainted by judicial bias, procedural irregularities, and violations of due process, including denial of the opportunity to present evidence, (2) the reversal of the judge‘s denial of the motion for recusal, (3) compel the respondent judge to recognize Jacobs as the representative of the estate of Marvin Jacobs, (4) impose sanctions against the defendant Calhoun Funeral Home (“Calhoun“) for failing to comply with procedural requirements and presenting forged documents, and (5) remand the underlying case for a new trial or further proceedings.
{¶ 2} On April 8, 2025, Calhoun moved to intervene and file an answer and a motion to dismiss. On April 14, 2025, pursuant to
{¶ 3} Crystal Jacobs was the adult daughter of Jacobs and died on May 12, 2022. Jacobs contracted with Calhoun for funeral and cremation services. Jacobs avers that she contracted explicitly to witness the cremation and provided Calhoun with a list of family and friends who also wanted to witness the cremation. She further avers that Calhoun, through its agents, assured her that they would be notified of the cremation date and time. However, the cremation occurred without any of the specified witnesses.
{¶ 4} On May 23, 2023, Jacobs commenced the underlying case for breach of contract and negligence in not informing the family and friends of the date and time of the cremation. The case was assigned to the respondent judge. The complaint listed seven other family friends as plaintiffs in addition to Jacobs. However, when the plaintiffs’ attorney withdrew, the respondent judge held a pretrial on the record to clarify that the eight plaintiffs must represent themselves or be represented by an attorney. Only Jacobs and another plaintiff appeared at the pretrial; they had not retained a new attorney. The judge dismissed the plaintiffs who had not appeared. Once the judge had clarified the situation, she went off the record to discuss discovery issues with the remaining parties. Jacobs alleges that during this pretrial the respondent judge called her “stupid” as well as Jacob‘s doctors and counselors “stupid.” Jacobs continues that the respondent judge humiliated her for three hours.
{¶ 6} On March 24, 2025, Jacobs filed a writ of prohibition against the respondent judge in the Supreme Court of Ohio. Sherlyn Jacobs v. Cuyahoga County Court of Common Pleas IN RE: Judge Ashley Kilbane, Supreme Court Case No. 2025-0430. The Supreme Court‘s docket for this case shows that service was made on the respondent judge on March 28, 2025.
{¶ 7} Jacobs commenced the present prohibition action in this court on March 25, 2025. This court‘s docket shows that service was made on March 31, 2025. The two prohibition complaints are nearly identical. A comparison of the two writs indicates that the only differences in the nine-page complaints are that a
{¶ 8} On March 27, 2025, Jacobs appealed the decision in the underlying case to the Eighth District Court of Appeals. Jacobs v. Calhoun Funeral Home, 8th Dist. Cuyahoga No. 114956.
LEGAL ANALYSIS
{¶ 9} Subject-matter jurisdiction cannot be waived and is properly raised by a court sua sponte. State ex rel. Dunlap v. Sarko, 2013-Ohio-67, ¶ 13. Under the jurisdictional-priority rule, this court lacks jurisdiction to adjudicate this prohibition action. This rule provides that “‘as between [state] courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all tribunals, to adjudicate upon the whole issue and to settle the rights of the parties.‘” State ex rel. Dannaher v. Crawford, 78 Ohio St.3d 391, 393 (1997), quoting State ex rel. Racing Guild of Ohio v. Morgan, 17 Ohio St.3d 54, 56 (1985); and State ex rel. Phillips v. Polcar, 50 Ohio St.2d 279 (1977), syllabus. Furthermore, “it is a condition of the operation of the state jurisdictional priority rule that the claims or causes of action be the same in both cases, and ‘[i]f the second case is not for the same cause of action, nor between the same parties, the former suit will not prevent the latter.‘” Crawford at 393, quoting State ex rel. Sellers v. Gerken, 72 Ohio St.3d 115, 117 (1995).
{¶ 10} The “institution of proper proceedings” is filing the lawsuit and obtaining service. In Gehelo v. Gehelo, 160 Ohio St. 243 (1953), the husband filed
{¶ 11} In present matter, the Supreme Court of Ohio and this court are courts of concurrent jurisdiction over the extraordinary writs, such as prohibition.
{¶ 12} Assuming arguendo that the jurisdictional-priority rule does not apply, prohibition will not issue in the present case. 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 (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 (1981). Prohibition will not lie
{¶ 14} The gravamen of Jacobs‘s complaint is that the respondent judge showed judicial bias by humiliating her for three hours, calling her “stupid,” denying her efforts to submit evidence, failing to compel discovery, failing to grant her motion for leave to file instanter, and granting summary judgment to Calhoun. However, “improper, biased, prejudiced, discourteous, undignified, impatient, and belligerent conduct does not relate to a patent and unambiguous lack of jurisdiction warranting a writ of prohibition.” Woodard v. Colaluca, 2014-Ohio-3824, ¶ 9 (8th Dist.).
{¶ 15} State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), and State ex rel. Turner v. Marshall, 123 Ohio St. 586 (1931), are not persuasive. They are peculiar mandamus actions brought in the Supreme Court of Ohio to review the Chief Justice‘s decision to disqualify a judge, which is now in the exclusive jurisdiction of the Chief Justice or a justice designated by the Chief Justice.
{¶ 16} Moreover, prohibition is meant to be a preventive, rather than a corrective remedy. It does not generally apply retroactively to review an accomplished act. State ex rel. Flannery v. Sidwell, 24 Ohio St.2d 74 (1970); State ex rel. Stafanick v. Mun. Court of Marietta, 21 Ohio St.2d 102 (1970); and Weber v. Whitfield, 1977 Ohio App. LEXIS 8816 (9th Dist. Dec. 14, 1977).
{¶ 17} The proper remedy to review errors and irregularities in a case is appeal. Thus, Jacobs has and is pursuing her adequate remedy at law, which precludes a writ of prohibition.
{¶ 18} Accordingly, this court grants the motions to dismiss and dismisses this application for a writ of prohibition. All outstanding motions are denied as moot. Relator to pay costs. This court directs the clerk of courts to serve all parties notice of the judgment and its date of entry upon the journal as required by
{¶ 19} Writ dismissed.
MARY J. BOYLE, JUDGE
LISA B. FORBES, P.J., and
MICHAEL JOHN RYAN, J., CONCUR