STATE OF OHIO EX REL., TIMOTHY WEST v. HONORABLE NANCY MCDONNELL
No. 99085
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
RELEASE DATE: March 20, 2013
2013-Ohio-1043
JOURNAL ENTRY AND OPINION; Writ of Prohibition; Motion No. 460224; Order No. 462933
Timothy West, Pro Se
Inmate No. 604-876
Richland Correctional Institution
P.O. Box 8107
1001 Olivesburg Road
Mansfield, OH 44901
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James E. Moss
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} On October 23, 2012, the relator, Timothy West, commenced this prohibition action to vacate and correct an order forfeiting and/or clarifying an order of forfeiture for a piece of real property in the underlying case, State v. Timothy West & Todd West, Cuyahoga C.P. No. CR-548609. In Count 1, he claims that the trial judge did not have jurisdiction to issue the subject order because of the transfer of jurisdiction principle; he had appealed the underlying case, that deprived the judge of jurisdiction to issue an order interfering with this court‘s jurisdiction to affirm, reverse, or modify the trial court‘s judgment. In Count 2, he argues that the indictment specified only Permanent Parcel No. 004-10-005 as subject to forfeiture. Thus, the trial court did not have the jurisdiction to forfeit Permanent Parcel No. 004-10-006 that was part of the subject property. On November 16, 2012, the respondent filed a motion to dismiss. On December 3, 2012, Timothy West filed his brief in opposition. For the following reasons, this court grants the trial judge‘s motions to dismiss.
{¶2} In the underlying case, Timothy West and his brother, Todd West, owned and used the large commercial building at 2341 Scranton Road, Cleveland, Ohio to grow hundreds of marijuana plants. On November 5, 2010, the Cleveland police raided the operation and arrested the brothers.
{¶3} The grand jury then indicted the brothers for (1) the illegal manufacture of drugs or cultivation of marijuana, (2) drug trafficking, (3) drug possession, and (4)
{¶4} A review of the record in the underlying case indicates that the brothers had “sold” the Scranton Road property to Nicholas Kulon in May 2011. It is apparent that Kulon realized that this sale may be problematic and commenced a civil lawsuit, Kulon v. Timothy West, Todd West, State of Ohio & Cuyahoga Cty., Cuyahoga C.P. No. CV-761802, on August 8, 2011, to resolve the matter. Thus, the state of Ohio in the underlying case on October 3, 2011, filed a brief in support of forfeiture that asked the trial judge to declare that the May 2011 contract was null and void and to vest title unencumbered with the city of Cleveland. On October 17, 2011, Kulon filed a petition, pursuant to
{¶6} 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). 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.
{¶7} In addition, prohibition may issue to correct the results of prior jurisdictionally unauthorized actions, if the court was patently and unambiguously without jurisdiction. State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633. However, prohibition will not lie, if the court had basic statutory jurisdiction. At the very least, the court would have sufficient jurisdiction to determine its own jurisdiction, and appeal would provide an adequate remedy. State ex rel. Pruitt v. Donnelly, 129 Ohio St.3d 498, 2011-Ohio-4203, 954 N.E.2d 117.
{¶8} Timothy West argues first that the respondent judge was patently and unambiguously without jurisdiction to conduct the forfeiture hearings and issue the January 13, 2012 order because of the transfer of jurisdiction principle. In Howard v. Catholic Social Serv. of Cuyahoga Cty., 70 Ohio St.3d 141, 146, 1994-Ohio-219, 637 N.E.2d 840, the Supreme Court of Ohio enunciated the rule as follows: “When a case has been appealed, the trial court retains all jurisdiction not inconsistent with the reviewing court‘s jurisdiction to reverse, modify, or affirm the judgment.” As a corollary, the trial court retains jurisdiction over collateral matters, such as contempt, enforcement of its judgment, appointment of a receiver, and injunction. Fifth Third Mtge. Co. v. Rankin, 4th Dist. No. 11CA18, 2012-Ohio-2804 (the trial court retained jurisdiction to confirm the sheriff‘s sale pending appeal of judgment of foreclosure). Timothy West asserts that the trial court must have lost all jurisdiction after he appealed his convictions in October 2011. As a second argument, he asserts that the trial judge did not have the jurisdiction to order the forfeiture of Permanent Parcel No. 004-10-006, because it was not explicitly stated in the indictment. Although Timothy West does not cite authority for this proposition,
{¶9} However, these arguments are not well taken.
{¶10} Moreover, as the Supreme Court of Ohio in Pruitt, supra, ruled, errors in sentencing, such as the propriety of a forfeiture, are to be addressed on appeal. Thus, an adequate remedy at law also bars this prohibition action.
{¶11} In his appeals, Timothy West argued that the trial court erred in ordering the forfeiture of both parcels of land because the indictment only identified one parcel. This court rejected that argument by noting that the two parcels were merged for tax
{¶12} The principles of issue preclusion also bar this action. Issue preclusion prevents relitigation of any fact or point that was determined by a court of competent jurisdiction in a previous action between the same parties or their privies. O‘Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 7. As shown above, Timothy West has already litigated Count 2 of this prohibition action and lost. In his appeal, State v. Todd West, 8th Dist. Nos. 97398 and 97899, Todd West filed a motion for reconsideration on January 4, 2013, (motion no. 461387), which raised the same transfer of jurisdiction argument as in his brother‘s writ. In fact, Todd West relied upon the same authority and at times used identical language in his argument as in his brother‘s writ action. On January 18, 2013, this court denied the motion for reconsideration. Thus, as a brother and partner in the same scheme, Timothy West is in privity with Todd West, and the litigation of the transfer of jurisdiction issue resolves the point for Timothy West as well.
{¶13} Accordingly, this court grants the respondent judge‘s motions to dismiss. Relator 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).
{¶14} Writ dismissed.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
EILEEN A. GALLAGHER, J., CONCUR