[Cite as Wiegand v. Deutsche Bank Natl. Trust, 2012-Ohio-933.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97424
JACKIE WIEGAND
RELATOR
vs.
DEUTSCHE BANK NAT’L
TRUST ETC., ET AL.
RESPONDENTS
JUDGMENT:
WRIT DENIED
Writ of Prohibition
Motion Nos. 450331 and 451373
Order No. 452556
RELEASE DATE: March 6, 2012
ATTORNEY FOR RELATOR
James R. Douglass
James R Douglass Co., LPA
20521 Chagrin Blvd. Ste. D
Shaker Heights, OH 44122
ATTORNEYS FOR RESPONDENTS
For Honorable Kathleen A. Sutula
Cuyahoga Cty. Court of Common Pleas, and
Sheriff Robert Reid
William D. Mason
Cuyahoga County Prosecutor
By: Charles E. Hannan, Jr.
Assistant. County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
ADDITIONAL RESPONDENTS
FOR LAW OFFICES OF JOHN D. CLUNK CO.
Law Offices of John D. Clunk Co, LPA
4500 Courthouse Blvd. Ste. 400
Stow, OH 44224
FOR DEUTSCHE BANK NATIONAL TRUST
Deutsche Bank National Trust Co.
505 City Parkway West, Ste. 100
Orange, CA 92868
PATRICIA A. BLACKMON, J.:
{¶1} Jackie Wiegand has filed a verified complaint for a writ of prohibition.
Wiegand seeks an order from this court that prevents the respondents Judge Kathleen A.
Sutula, the Cuyahoga County Court of Common Pleas and Cuyahoga County Sheriff
Robert Reid from exercising jurisdiction in the case styled Deutsche Bank Natl Trust Co.,
et al. v. Wiegand, Cuyahoga Cty. Court of Common Pleas Case No. CV-599036.1 For
the following reasons, we grant the joint motion for summary judgment filed by the
respondents and deny Wiegand’s cross-motion for summary judgment.
Facts
{¶2} The following facts that are pertinent to this original action are gleaned from
the original complaint for a writ of prohibition, the answer to the complaint, the
respondents’ joint motion for summary judgment, the brief in opposition to the joint
motion for summary judgment, the cross-motion for summary judgment, and the brief in
opposition to the cross-motion for summary judgment:
(1) Wiegand was the owner of real property located at 16105 Rockside Road,
Maple Heights, Ohio;
1
Wiegand has also named the Deutsche Bank National Trust Co. and John D. Clunk,
LPA, as additional respondents. However, the complaint for prohibition fails to state a claim
for relief against either Deutsche Bank or Clunk. Pursuant to Civ.R. 12(B)(6), we sua sponte
dismiss the complaint for prohibition brought against Deutsche Bank and Clunk. State ex rel.
LetOhioVote.Org. v. Brunner, 125 Ohio St.3d 420, 2010-Ohio-1985, 928 N.E.2d 1066, ¶ 11;
State ex rel. Peeples v. Anderson, 73 Ohio St.3d 559, 653 N.E.2d 371 (1995).
(2) on July 26, 2005, Wiegand executed a mortgage note in the amount of $84,000,
payable to Argent Mortgage Co., LLC;
(3) on August 16, 2006, John D. Clunk Co, LPA “filed a foreclosure complaint on
behalf of Deutsche Bank National Trust Company as Trustee of Argent Mortgage
Securities, Inc.,. Asset Based Pass Through Certificates Series 2005-W3 under the
Pooling and Servicing Agreement dated as of November 1, 2005, without recourse”;
(4) the complaint in foreclosure was assigned to Cuyahoga Cty. Court of Common
Pleas Case No. CV-06-599036, with Judge KathleenSutula presiding over the civil action;
(5) on July 16, 2008, Judge Kathleen Sutula entered an order that provided, in part,
that:
[p]ursuant to the Stipulated Settlement Agreement filed herein on April 7, 2008,
Defendant Jacqueline Wiegand hereby dismisses the Counterclaim and Third party
Complaint, waives any and all claims and defenses she may have to the
foreclosure and as against the Plaintiff [Deutsche Bank] and Third-Party
Defendant Argent Mortgage Company, LLC and consents to this in rem decree of
foreclosure. In consideration thereof, Plaintiff [Deutsche Bank] hereby waives
any and all claims for a personal deficiency judgment against defendant Jacqueline
Wiegand on the Note. (Emphasis added);
(6) on May 15, 2009, Wiegand filed a motion to dismiss the complaint for
foreclosure premised upon the issue of whether Deutsche Bank was the real party in
interest;
(7) on May 22, 2009, Judge Kathleen Sutula denied Wiegand’s motion to dismiss
and held that:
Defendant Jacqueline Wiegand’s eight motions filed on 2/04/2010 and 2/11/2010
are denied. As noted in the court’s journal entry of 5/22/2009 and as
demonstrated by the record in this case, defendant previously waived her defenses
and consented to foreclosure pursuant to a settlement agreement between the
parties. (See filings and journal entries of 4/07/2008, 6/02/2008, 7/16/2008, and
5/22/2009.) At no time has defendant filed an appeal of the court’s decisions,
either as a pro se litigant or when she was represented by counsel (which was from
11/30/2006 until 12/1/2008). Furthermore, the court does not interpret the Eighth
District’s ruling [Wells Fargo Bank, N.A. v. Jordan, 8th Dist. No. 91675,
2009-Ohio-1092], which was decided on 3/12/2009, to apply retroactively to a
stipulated decree of foreclosure entered eight months earlier in furtherance of a
settlement agreement.
(8) on November 22, 1010, Wiegand’s real property was sold at a sheriff’s sale;
(9) on December 27, 2010, Judge Kathleen Sutula issued a decree of confirmation
and held that:
The sheriff having sold the property described in the order of sale issued to him,
the court being satisfied of the legality of the sale and that the notice of the sale
was in all respects in conformity to law, approves and confirms the same and
directs the sheriff to execute and deliver to Deutsche Bank National Trust
Company, as Trustee for Argent Securities, Inc., Asset-Backed Pass-Through
Certificates, Series 2005-W5, a good and sufficient deed thereof. Writ of
possession against all defendants ordered issued to purchaser.
(10) on January 24, 2011, Wiegand filed an appeal with this court, in Cuyahoga
App. No. 96324, from the order of foreclosure and the decree of confirmation;
(11) on June 9, 2011, this court dismissed Wiegand’s appeal on the basis that the
“[a]ppeal is barred by the terms of the settlement and release agreement between the
parties”;
(12) on September 7, 2011, this court denied Wiegand’s “motion for
reconsideration and to reinstate appeal”;
(13) Wiegand did not file a timely appeal from this court’s dismissal of Cuyahoga
App. No. 96324 to the Supreme Court of Ohio;
(14) on October 18, 2011, Wiegand filed her complaint for a writ of prohibition
and an alternative writ of prohibition;
(15) on November 3, 2011, this court denied Wiegand’s request for an alternative
writ of prohibition;
(16) on December 12, 2011, the respondents filed a joint motion for summary
judgment;
(17) on January 17, 2012, Wiegand filed her combined brief in opposition to the
motion for summary judgment and a cross-motion for summary judgment;
(18) on February 6, 2012, the respondents filed a joint brief in opposition to
Wiegand’s cross-motion for summary judgment.
Legal Analysis
{¶3} Wiegand asserts that she is entitled to a writ of prohibition based upon the
argument that Deutsche Bank lacked standing to bring the action in foreclosure, which
prevented Judge Kathleen Sutula and, indirectly, Sheriff Reid from possessing subject
matter jurisdiction over the foreclosure action. “Neither mandamus nor prohibition will
issue if the party seeking extraordinary relief has an adequate remedy in the ordinary
course of law.” Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d
1202, ¶ 12. The Supreme Court of Ohio has also firmly established that “[i]n the
absence of a patent and unambiguous lack of jurisdiction, a court having general
subject-matter jurisdiction can determine its own jurisdiction, and a party contesting that
jurisdiction has an adequate remedy by appeal.” State ex rel. Plant v. Cosgrove, 119
Ohio St.3d 264, 2008-Ohio-3838, 893 N.E.2d 485, ¶ 5; see also State ex rel. Mosier v.
Fornof, 126 Ohio St.3d 47, 2010-Ohio-2516, 930 N.E.2d 305, ¶ 2. For the following
reasons, we find that Judge Kathleen Sutula did not patently and unambiguously lack
jurisdiction in the underlying action for foreclosure.
{¶4} Initially, we find that Judge Kathleen Sutula had the inherent and statutory
authority to preside over the underlying action in foreclosure. Judge Kathleen Sutula sits
as an elected judge of the Cuyahoga County Court of Common Pleas. The Ohio
Constitution created the general courts of common pleas and granted them statewide
jurisdiction. Cheap Escape Co. v. Haddox, LLC, 120 Ohio St.3d 493, 2008-Ohio-6323,
900 N.E.2d 601, ¶ 7; Ohio Constitution, Article IV, Section 4(A). The Cuyahoga County
Court of Common Pleas is a court of general jurisdiction and possesses original
jurisdiction in all civil cases in which the sum or matter in dispute exceeds the exclusive
jurisdiction of county court or municipal courts. R.C. 2305.01. The complaint in
foreclosure alleged that an amount, in excess of $84,000 plus interest thereon at the rate
of 10.5% from March 1, 2006, was due on a promissory note executed by Wiegand and
secured by a mortgage deed. Clearly, the Cuyahoga County. Court of Common Pleas
and Judge Kathleen Sutula had jurisdiction over the complaint for foreclosure and
possessed the inherent and statutory authority to enter judgment in the underlying case.
Absent a patent and unambiguous lack of jurisdiction, a court having general
subject-matter jurisdiction can determine its own jurisdiction. State ex rel. White v.
Junkin, 80 Ohio St.3d 335, 686 N.E.2d 267 (1997); State ex rel. Enyart v. O’Neil, 71
Ohio St.3d 655, 646 N.E.2d 1110 (1995).
{¶5} In addition, we find that Wiegand waived any and all defenses to the action in
foreclosure. Pursuant to the journal entry of July 16, 2008 in the underlying action in
foreclosure, Wiegand waived any and all claims and defenses, including the claim that
Deutsche Bank lacked standing to bring the action in foreclosure. A defendant waives a
right or defense by voluntarily relinquishing that right or defense or engaging in conduct
that causes an inference of a relinquishment of that right or defense. Gliozzo v. Univ.
Urologist of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714;
Gollings v. Natl. Life Ins. Co., 92 Ohio App.3d 726, 637 N.E.2d 76 (9th Dist. 1994). It
must also be noted that this court, in its disposition of the appeal brought by Wiegand
from the order of foreclosure and sheriff’s sale, specifically found that Wiegand had
indeed waived all defenses to the action in foreclosure. See Deutsche Bank National
Trust Co. V. Wiegand, et al, 8th Dist. No. 96324, (Apr. 11, 2011).
{¶6} Finally, Wiegand has or had adequate remedies in the ordinary course of law,
e.g., appeal, for review of any alleged jurisdictional defects. Wiegand also was permitted
to file an appeal with the Supreme Court of Ohio with regard to our dismissal of her
appeal based upon the issue of waiver. State ex rel. Hughley v. McMonagle, 121 Ohio
St.3d 536, 2009-Ohio-1703, 905 N.E.2d 1220; State ex rel. Jaffal v. Calabrese, 105 Ohio
St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107. And extraordinary writs may not be
employed to gain successive appellate reviews of the same issue previously raised in an
appeal. Stat ex rel. Williams v. Bessey, 125 Ohio St.3d 447, 2010-Ohio-2113, 928 N.E.2d
1091; State ex rel. Woods v. Oak Hill Community Med. Ctr., 91 Ohio St.3d 459, 746
N.E.2d 1108 (2001); State ex rel. Smith v. O’Connor, 71 Ohio St.3d 660, 646 N.E.2d 115
(1995).
{¶7} Therefore, Judge Kathleen Sutula did not patently and unambiguously lack
jurisdiction to proceed to judgment in the underlying action in foreclosure filed against
Wiegand.
Conclusion
{¶8} Writ denied.
{¶9} Based on the foregoing, we grant the respondents’ joint motion for summary
judgment and deny Wiegand’s cross-motion for summary judgment.
{¶10} It is further ordered that the Clerk of the Eight District Court of Appeals
serve notice of this judgment upon all parties as required by Civ.R. 58(B).
Cost to Wiegand.
PATRICIA A. BLACKMON, PRESIDING JUDGE
JAMES J. SWEENEY, J., AND
COLLEEN CONWAY COONEY, J., CONCUR