JOHN WOOD, ESQ., RELATOR vs. HONORABLE JUDGE ROBERT McCLELLAND, ET AL., RESPONDENTS
No. 99939
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 6, 2013
2013-Ohio-3922
JOURNAL ENTRY AND OPINION; Writ of Prohibition; Motion Nos. 466181 and 466747; Order No. 467677
John Wood, pro se
281 Corning Drive
Bratenahl, Ohio 44108
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Nora E. Graham
David Lambert
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Relator, John Wood, Esq. (“Wood” or “Relator“), has petitioned this court for a writ of prohibition preventing respondents, Judge McClelland and Magistrate Kevin Augustyn (“Respondents“), from exercising jurisdiction over Count 1 of the second amended complaint for foreclosure that was filed in Fannie Mae v. Hicks, Cuyahoga C.P. No. CV-746293 (hereinafter the “underlying action“). Wood is not a party, but there is no dispute that he represents defendant Hicks in the underlying action. The court has before it Respondents’ motion for summary judgment, Relator‘s response to Respondents’ motion for summary judgment, Relator‘s motion for summary judgment, Respondents’ response to Relator‘s motion for summary judgment, a reply in support of Respondents’ motion for summary judgment, and Relator‘s reply to Respondents’ response to Relator‘s motion for summary judgment.
{¶2} Having considered the entire record, the arguments of the parties, and the applicable law, Respondents’ motion for summary judgment is granted and Relator‘s motion for summary judgment is denied for the reasons that follow.
{¶3} Wood‘s petition avers that in the underlying action, plaintiff Fannie Mae is without standing to pursue Count 1 of the second amended complaint, and therefore, the trial court patently and unambiguously lacks jurisdiction to exercise jurisdiction over this count.
{¶4} The gravamen of this action centers around Fannie Mae‘s cause of action to enforce a note and mortgage in the underlying action. Fannie Mae averred it is a person
{¶5} Respondents have moved for summary judgment on the following alleged grounds: (1) Wood is not the real party in interest and lacks standing to pursue this original action in his own name, and (2) Wood has failed to establish a claim for relief in prohibition. Wood responds that he has standing by virtue of his “representative capacity” as Hicks‘s counsel in the underlying litigation and maintains that he has satisfied all requirements necessary to merit relief in prohibition. Respondents are entitled to summary judgment on both grounds.
A. Wood lacks standing
{¶6} “It is elementary that every action shall be prosecuted in the name of the real party in interest * * *.” State ex rel. Dallman v. Court of Common Pleas, 35 Ohio St.2d 176, 178, 298 N.E.2d 515 (1973), citing
{¶7} Wood concedes that he has no personal interest in the underlying litigation but believes he has standing in his “representative capacity” as defendant Hicks‘s
Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his name as such representative without joining with him the party for whose benefit the action is brought. When a statute of this state so provides, an action for the use or benefit of another shall be brought in the name of this state. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest. Such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
(Emphasis added.)
{¶8}
B. Failure to establish a claim for relief
{¶9} Even if this action had been commenced in the name of the real party in interest, it would fail. Wood argues that the trial court was patently and unambiguously without jurisdiction. Wood, however, acknowledges that the trial court has subject-matter jurisdiction in foreclosure cases. The trial court, therefore, had jurisdiction to rule on the motion to dismiss that challenged Fannie Mae‘s standing to enforce the subject note. See, e.g., Schwartzwald. The trial court denied the motion to dismiss, and Wood clearly believes the ruling was erroneous. Nonetheless, a “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.” Hicks‘s
{¶10} Wood asserts that Schwartzwald clearly established that Fannie Mae lacked standing to enforce the note in the underlying litigation. We disagree.
{¶11} The Ohio Supreme Court addressed and decided the following issue in Schwartzwald: “whether a lack of standing at the commencement of a foreclosure action filed in a common pleas court may be cured by obtaining an assignment of a note and mortgage sufficient to establish standing prior to the entry of judgment.” Id. at ¶ 19. In Schwartzwald, the plaintiff conceded that it was not the person entitled to enforce the note on the date that the foreclosure complaint was filed. The court held that a lack of standing at the outset of the litigation cannot be cured by receipt of an assignment of the claim or by substitution of the real party in interest. Id. at ¶ 41. The plaintiff in the underlying action maintains it was the proper person to enforce the note and mortgage at the time the complaint was filed. Also, unlike Schwartzwald, the foreclosure defendant
{¶12} A writ of prohibition “is an extraordinary remedy that is granted in limited circumstances with great caution and restraint.” State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001). Before it can be granted, the relator must prove that: “(1) the lower court is about to exercise judicial power, (2) the exercise of power is unauthorized by law, and (3) relator possesses no other adequate remedy at law.” Id. However, when a court is patently and unambiguously without jurisdiction to act whatsoever, the availability or adequacy of a remedy is immaterial. State ex rel. Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988). Therefore, if the lack of jurisdiction is patent and unambiguous, the writ will be granted upon proof of the first two elements alone.
{¶13} 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
{¶14} A party challenging the court‘s jurisdiction has an adequate remedy at law by 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). 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).
{¶15} A patent and unambiguous lack of jurisdiction means that there is a “total lack of jurisdiction of the lower court to act.” State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 77, 701 N.E.2d 1002 (1998), criticized by, Schwartzwald at ¶ 29. The court of common pleas clearly has subject-matter jurisdiction in the underlying foreclosure case. State ex rel. Wood v. Olsztyn, 8th Dist. Cuyahoga No. 98061, 2012-Ohio-3160, ¶ 5, citing Weigand v. Deutsche Bank Natl. Trust, 8th Dist. Cuyahoga No. 97424, 2012-Ohio-933 (denying relief in prohibition to prevent the court of common pleas from proceeding in a foreclosure action). The issue of standing does “not attack the court‘s jurisdiction and can be adequately raised by postjudgment appeal.” State ex rel. Smith v. Smith, 75 Ohio St.3d 418, 420, 662 N.E.2d 366 (1996). “Standing is a threshold question for the court to decide in order for it to proceed to adjudicate the action. The trial court has discretion to decide whether the [plaintiff] is a proper party to assert the claim.” State ex rel. Jones at 77. There is an adequate remedy at law to challenge an adverse ruling as to a party‘s alleged lack of standing in a foreclosure action. See, e.g., Schwartzwald; see also
{¶16} The trial court had jurisdiction to rule on the motion to dismiss that raised the issue of standing, and the trial court‘s ruling can be adequately challenged by a postjudgment appeal. The trial court does not patently and unambiguously lack jurisdiction over plaintiff‘s claims in the underlying action.
{¶17} Relator‘s motion for summary judgment is denied and respondents’ motion for summary judgment is granted.
{¶18} Accordingly, we grant the respondents’ motion for summary judgment. Relator to pay costs. The court directs the clerk of court to serve all parties with notice of this judgment and its date of entry upon the journal as required by
{¶19} Writ denied.
EILEEN T. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
TIMOTHY McCORMACK, J., CONCUR