[Cite as Patterson v. Burnside, 2014-Ohio-2064.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100942 and 101296
DAVID PATTERSON, ET AL.
RELATORS
vs.
JUDGE JANET BURNSIDE, ET AL.
RESPONDENTS
JUDGMENT:
WRIT DENIED
Writ of Prohibition
Motion No. 472453
Order No. 474706
RELEASE DATE: May 14, 2014
ATTORNEY FOR RELATORS
John Wood
281 Corning Drive
Bratenahl, Ohio 44108
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Charles E. Hannan
David G. Lambert
Assistant County Prosecutors
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Relator, David Patterson, filed an original action (8th Dist. Cuyahoga No.
100942) requesting this court to issue a writ of prohibition preventing respondents, Judge
Janet Burnside and Sheriff Frank Bova, from issuing or enforcing a writ of possession
because he believes respondents patently and unambiguously lack jurisdiction to proceed.
Subsequently, relators, David Patterson and Marva Patterson, (collectively referred to as
“Patterson”), filed another original action (8th Dist. Cuyahoga No. 101296) against the
same respondents and seeking the same relief. Respondent judge issued a writ of
execution on March 26, 2014, which respondent sheriff allegedly intends to serve. These
actions have been consolidated for disposition. Respondents filed a motion for summary
judgment in case number 100942, which Patterson has opposed. After the second action
was filed, Patterson was sua sponte granted leave to supplement the brief in opposition to
respondents’ motion for summary judgment. For the reasons that follow, respondents’
motion for summary judgment is granted.
{¶2} 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, Patterson 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.
{¶3} Absent such a patent and unambiguous lack of jurisdiction, a court having
general jurisdiction of the subject matter of an action has “the right to determine the
bounds of its own jurisdiction, and any error in that determination could be remedied
upon appeal.” Lingo v. State, Slip Opinion No. 2014-Ohio-1052, ¶ 41, citing State ex
rel. Miller v. Lake Cty. Court of Common Pleas, 151 Ohio St. 397, 86 N.E.2d 464 (1949),
paragraph three of the syllabus.
{¶4} Patterson argues that respondent judge patently and unambiguously lacks
jurisdiction to issue the writ of possession. First, Patterson maintains that the initial writ
was returned unexecuted after 60 days and was therefore abandoned and extinguished,
thereby barring the issuance of any further writ of possession. It appears to be
Patterson’s position that the sole remedy of the creditor is now through an action for
amercement or a common law action for damages against the sheriff. Secondly,
Patterson maintains that the court lacked jurisdiction to issue the second writ because he
contends neither the trustee nor the bank have standing in the underlying litigation
because the bank assigned its interest to the trustee, who is not a party.
{¶5} The underlying litigation involves a foreclosure action. Clearly, the
Cuyahoga County Court of Common Pleas and the respondent judge have jurisdiction
over the complaint for foreclosure and possess the inherent and statutory authority to
enter judgment in the case. In fact, this court reversed the respondent judge’s order that
had granted Patterson’s motion to vacate the foreclosure order and sheriff’s sale in
CitiMortgage, Inc. v. Patterson, 8th Dist. Cuyahoga No. 98360, 2012-Ohio-5894, 984
N.E.2d 392. We remanded the matter to respondent judge with a mandate to reinstate the
foreclosure judgment and sheriff sale.
{¶6} Following the remand in CitiMortgage, Patterson filed a motion for relief
from judgment, which was denied on October 29, 2013. On January 27, 2014, Patterson
also filed motions to vacate the confirmation of sale, to vacate the sale, to return the order
of sale without execution, and to vacate and set aside the judgment of foreclosure. In the
meantime, the initial writ of possession was returned “cancelled: per deputies due to
wrong broker on paperwork.” Another writ of possession was then issued.
{¶7} Relator has provided no authority to support the position that respondents are
patently and unambiguously without jurisdiction to issue and execute upon a second
corrected writ of possession in a foreclosure case after an initial writ was returned for the
reason that it was “cancelled: per deputies due to wrong broker on paperwork.” While
the law provides that the abandonment of a writ discharges the property and destroys the
rights the creditor obtained pursuant to a writ unexecuted for 60 days, it does not appear
to preclude the issuance of a subsequent or corrected writ of possession involving the
same property in favor of that creditor or a different creditor. E.g. In re Takacs v.
Baldwin, 106 Ohio App.3d 196, 665 N.E.2d 736 (6th Dist.1995) (amercement action was
filed after the debtor’s property had disappeared and could not be located after multiple
writs had been issued but were unsuccessfully executed by the sheriff); see also Johnson
v. Graham Lighter Corp., 83 Ohio App. 489, 80 N.E.2d 690 (8th Dist.1948) (writ of
possession that was returned unexecuted extinguished the first creditor’s rights under that
writ such that the subsequently issued alias writ in favor of the first creditor did not take
priority over an intervening writ of possession that was issued in favor of a different
creditor over the same property). Therefore, there is no basis for concluding that the
respondents patently and unambiguously lack jurisdiction to issue and execute the writ of
possession.
{¶8} Errors concerning a party’s standing and whether the trial court properly
determined the bounds of its own jurisdiction can be remedied on direct appeal, and not
all cases involving an alleged lack of standing merit the issuance of a writ. Lingo,
2014-Ohio-1052, ¶ 41; Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d
13, 2012-Ohio-5017, 979 N.E.2d 1214.
{¶9} Accordingly, we grant respondents’ motion for summary judgment, and
relators’ request for a writ of prohibition is denied. State ex rel. Waller v. Indus. Comm.
of Ohio, 143 Ohio St. 475, 55 N.E.2d 800 (1944), quoting State ex rel. Brophy v.
Cleveland, 141 Ohio St. 518, 49 N.E.2d 175, paragraph two of the syllabus (“A writ of
mandamus will not issue in a second action between the same parties or between parties
representing such parties to require the performance of what the court in the first action
has already ordered to be done”). Relators 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 Civ.R. 58(B).
{¶10} Writ denied.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
KATHLEEN ANN KEOUGH, J., CONCUR