State ex rel. Ghoubrial v. Summit Cty. Court of Common Pleas

[Cite as State ex rel. Ghoubrial v. Summit Cty. Court of Common Pleas, 2020-Ohio-470.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

STATE OF OHIO EX REL. SAM N.
GHOUBRIAL, M.D., ET AL.

Relators C.A. No. 29458

v.

SUMMIT COUNTY COURT OF ORIGINAL ACTION IN
COMMON PLEAS, ET AL. PROHIBITION

Respondents

Dated: February 12, 2020

PER CURIAM.

{¶1} Relators, Dr. Sam Ghoubrial and Julie Ghoubrial, filed a petition for a writ

of prohibition to prevent respondents, Judge James Brogan, Magistrate Patricia

Himelrigh, and the Summit County Common Pleas Court, from ordering Ms. Ghoubrial

to file a copy of her deposition, given in the Ghoubrials’ divorce case, under seal in a

pending civil case. Judge Brogan, Magistrate Himelrigh, and the Summit County

Common Pleas Court, collectively referred to as Judge Brogan, moved to dismiss and the

Ghoubrials responded. The plaintiffs in the underlying civil case also moved to intervene.

For the following reasons, we grant the motion to dismiss.

Requirements for Writ of Prohibition and Motion to Dismiss

{¶2} Generally, for this Court to issue a writ of prohibition, the Ghoubrials must

establish that: (1) Respondents are about to exercise judicial power, (2) the exercise of
 C.A. No. 29458
Page 2 of 13

that power is unauthorized by law, and (3) the denial of the writ will result in injury for

which no other adequate remedy exists. State ex rel. Jones v. Garfield Hts. Mun. Court,

77 Ohio St.3d 447, 448 (1997). There is no dispute that Respondents have and will

continue to exercise judicial power.

{¶3} “[T]he purpose of a writ of prohibition is to restrain inferior courts and

tribunals from exceeding their jurisdiction.” State ex rel. Jones v. Suster, 84 Ohio St.3d

70, 73 (1998). A writ of prohibition “tests and determines solely and only the subject

matter jurisdiction” of the lower court. State ex rel. Eaton Corp. v. Lancaster, 40 Ohio

St.3d 404, 409 (1988).

{¶4} When this Court reviews a motion to dismiss under Civ.R. 12(B)(6), we

must presume that all of the factual allegations in the complaint are true and make all

reasonable inferences in favor of the nonmoving party. State ex rel. Seikbert v. Wilkinson,

69 Ohio St.3d 489, 490 (1994). A complaint can only be dismissed when, having viewed

the complaint in this way, it appears beyond doubt that the relators can prove no set of

facts that would entitle them to the relief requested. Goudlock v. Voorhies, 119 Ohio

St.3d 389, 2008-Ohio-4787, ¶ 7. With this standard in mind, we begin with the facts

alleged in the complaint.

Facts Alleged in the Complaint

{¶5} The complaint details the history of two Summit County Common Pleas

Court cases. This prohibition action arises as a result of the intersection of those two

matters.
 C.A. No. 29458
Page 3 of 13

The Divorce Case

{¶6} Ms. Ghoubrial filed for divorce from her husband, Dr. Ghoubrial. Judge

Quinn, not a party in this action, presided over the divorce. During the divorce case,

Judge Quinn entered an order titled “CONFIDENTIALITY AGREEMENT AND

STIPULATED PROTECTIVE ORDER.” It stated that the Ghoubrials had agreed that

all documents, testimony, and information produced or provided by a group of designated

parties would be confidential if one of the designating parties designated the item as

“Confidential Information.” The order further provided that any party could object to the

designation, the parties could attempt to resolve the dispute and, if they could not, the

objecting party could move the court for an appropriate order.

{¶7} Judge Quinn’s order also contained a provision related to disclosure of

Confidential Information to outside sources. It stated that if disclosure of Confidential

Information is sought pursuant to, among other methods, subpoena or court order, the

party must notify the designating party of the request for disclosure and the designating

party could then seek to prevent disclosure by filing a motion for a protective order with

the Domestic Relations Court or by taking other appropriate action in any other court with

jurisdiction. This provision concluded that “the Confidential Information shall not be

disclosed until the issue is resolved by order of the appropriate court unless required by

the law or Court Order.”

{¶8} A later provision in this order provides that any producer or party may

designate information or testimony given during a deposition as confidential if that
 C.A. No. 29458
Page 4 of 13

designation is made within 15 days of the date the deposition transcript is received by the

party. This section requires that all parties receive notice and then the confidential portion

of the transcript shall be marked “Confidential Information.” After this order was entered,

Dr. Ghoubrial deposed Ms. Ghoubrial.

{¶9} Following his deposition of Ms. Ghoubrial, Dr. Ghoubrial moved to have

the deposition sealed. Judge Quinn, over Ms. Ghoubrial’s objection, ordered that the

deposition remain under seal, that it only be used by the parties to the action, and that it

be marked as confidential and subject to the protective order described above. The order

concluded that the deposition could only be used by the parties for purposes of the divorce

and for no other purposes.

The Civil Case

{¶10} While the divorce case continued in the Domestic Relations Division, a

proposed class action civil case, which named Dr. Ghoubrial as one of several defendants,

proceeded in the general division of the Summit County Common Pleas Court. Williams,

et al. v. Kisling, Nestico & Redick LLC, et al., Summit C.P. No. CV-2016-09-3928.

During the course of that litigation, the putative class members sought to depose Ms.

Ghoubrial and they sought a copy of her deposition transcript from the Domestic

Relations Court case. The Ghoubrials attempted to prevent both. While the new

deposition was postponed, the Civil Case Plaintiffs made a number of attempts to obtain

a copy of the deposition and the Ghoubrials resisted those efforts.

{¶11} According to the complaint, Judge Brogan suggested that the Civil Case

Plaintiffs could attempt to intervene in the Divorce Case in an effort to challenge the
 C.A. No. 29458
Page 5 of 13

protection order or to compel disclosure of the deposition transcript for in camera review.

The Civil Case Plaintiffs moved to intervene, but Judge Quinn denied the motion.

{¶12} The Civil Case Plaintiffs then served a subpoena duces tecum on Ms.

Ghoubrial. Dr. Ghoubrial moved to quash the subpoena, which Judge Brogan denied, but

he did postpone Ms. Ghoubrial’s deposition and response date. Judge Brogan also

assigned Magistrate Himelrigh to the case.

{¶13} Magistrate Himelrigh, after review of the parties’ motions and responses,

ordered Ms. Ghoubrial to provide the Domestic Relations Court case deposition for in

camera review. The Ghoubrials moved to set aside the Magistrate’s Order. Judge Brogan

denied that motion. He ordered Ms. Ghoubrial to file, under seal, a copy of the deposition.

He noted that he would not review it until after he ruled on a pending class certification

issue.

{¶14} According to the complaint, Dr. Ghoubrial filed another motion in the civil

case challenging Judge Brogan’s order to produce the deposition transcript. Judge Brogan

denied that motion and again wrote that he would not review the deposition transcript

until he ruled on the class certification question.

{¶15} The Ghoubrials moved for clarification about Judge Brogan’s “jurisdiction

and authority to order [Ms. Ghoubrial], a non-party, to produce her confidential

deposition transcript in violation of Judge Quinn’s Confidentiality Order.” In response,

Judge Brogan ordered Ms. Ghoubrial “to produce a hard copy of her deposition transcript

in a sealed envelope to the Court for filing under seal subject to the Court’s Protective

Order within seven days of the date of this Order.”
 C.A. No. 29458
Page 6 of 13

{¶16} The Ghoubrials then filed their petition for writ of prohibition. The

Respondents moved to dismiss and the Ghoubrials responded in opposition to the motion

to dismiss. The Civil Case Plaintiffs also moved to intervene in this action.

{¶17} As noted above, when this Court reviews a motion to dismiss under Civ.R.

12(B)(6), we must presume that all of the factual allegations in the complaint are true and

make all reasonable inferences in favor of the nonmoving party. Seikbert at 490. A

complaint can only be dismissed when, having viewed the complaint in this way, it

appears beyond doubt that the relators can prove no set of facts that would entitle them to

the relief requested. Goudlock v. Voorhies, 119 Ohio St.3d 389, 2008-Ohio-4787, ¶ 7.

{¶18} Viewing the allegations of the complaint in the light required by Civ.R.

12(B)(6), the Ghoubrials’ complaint does not state a claim for prohibition upon which

relief can be granted. Unless a trial court patently and unambiguously lacks jurisdiction,

a court having general jurisdiction of the subject matter has the authority to determine its

own jurisdiction to hear a cause, and the party challenging the court’s jurisdiction has an

adequate remedy through an appeal. Brooks v. Gaul, 89 Ohio St.3d 202, 203 (2000).

{¶19} The Ghoubrials, apparently recognizing that they must allege Respondents

lack jurisdiction, argued that Judge Brogan improperly acted in violation of the Domestic

Relations Court’s jurisdiction. Respondents argued in their motion to dismiss that this

was a discovery dispute within their jurisdiction. In their response to the motion to

dismiss, the Ghoubrials disagreed with that description and explained the basis for their

petition: “Relators filed their Writ because Respondents lack jurisdiction to collaterally
 C.A. No. 29458
Page 7 of 13

attack a prior Order of the Domestic Relations Court expressly prohibiting Relator Julie

Ghoubrial from producing the deposition transcript at issue.”

{¶20} The complaint, and response to the motion to dismiss, focus on what the

Ghoubrials refer to as an improper exercise of jurisdiction by Respondents. They contend

that Judge Brogan’s order leaves Ms. Ghoubrial no alternative but a writ of prohibition to

challenge Judge Brogan’s order that she file the deposition transcript in violation of the

Domestic Relations Court’s order.

{¶21} The Ghoubrials have characterized this as a jurisdictional issue, as they

must for a writ of prohibition. There is no dispute, however, that Judge Brogan,

Magistrate Himelrigh, and the Summit County Common Pleas Court have jurisdiction

over the underlying civil case. The Ghoubrials, therefore, focus on a narrower issue: does

the Domestic Relations Court’s order deprive Respondents of jurisdiction over the

discovery involving the deposition transcript. It does not.

Respondents have jurisdiction

{¶22} The question the Ghoubrials presented is not a question of Respondents’

subject matter jurisdiction. Subject matter jurisdiction concerns a court’s power to hear

and decide a case on the merits. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 75, 1998-

Ohio-275, citing Morrison v. Steiner, 32 Ohio St.2d 86 (1972), paragraph one of the

syllabus. Subject matter jurisdiction refers to the power of the court, not to the rights of

the parties. Suster at 75, citing Executors of Long’s Estate v. State, 21 Ohio App. 412,

415 (1st Dist.1926)
 C.A. No. 29458
Page 8 of 13

{¶23} The Ghoubrials’ allegation may give rise to a claim of trial court error, but

it does not concern Respondents’ jurisdiction, as required to grant a writ of prohibition.

As the Supreme Court has recognized, “there are many cases in which a court lacks the

legal authority to grant the relief sought but nevertheless has subject-matter jurisdiction

to hear the case.” Ohio High School Athletic Assn. v. Ruehlman, 157 Ohio St.3d 296,

2019-Ohio-2845, ¶ 14, citing, State ex rel. Enyart v. O’Neill, 71 Ohio St.3d 655, 656

(1995) (“the fact that [a judge] may have exercised that jurisdiction erroneously does not

give rise to extraordinary relief by prohibition”).

{¶24} The Ghoubrials alleged that the Domestic Relations Division’s order

regarding the deposition deprived the general division of jurisdiction to act regarding that

deposition. In part, they rely on R.C. 2301.03, which established a domestic relations

division in the Summit County Court of Common Pleas that was established to hear

divorce cases. They argue that orders entered by a court with exclusive jurisdiction are

not subject to collateral attack by another court. Finally, they allege that the jurisdictional

priority rule applies to deprive Respondents of jurisdiction

{¶25} We begin with the jurisdictional priority rule. Under that rule, “[a]s

between courts of concurrent jurisdiction, the tribunal whose power is first invoked by

the institution of proper proceedings acquires jurisdiction, to the exclusion of all other

tribunals, to adjudicate upon the whole issue and to settle the rights of the parties.” State

ex rel. Phillips v. Polcar, 50 Ohio St.2d 279 (1977), syllabus. The rule generally requires

the claims and parties to be the same in both cases; if the second case is not for the same

cause of action, and not between the same parties, the jurisdictional priority rule does not
 C.A. No. 29458
Page 9 of 13

apply. State ex rel. Hasselbach v. Sandusky Cty. Bd. of Elections, Slip Opinion No. 2019-

Ohio-3751. Because the causes of action and parties are not the same in the Domestic

Relations Court case and the civil case, the jurisdictional priority rule does not apply.

{¶26} We next consider whether Respondents have collaterally attacked the

discovery orders entered in the Divorce Case. The case upon which the Ghoubrials rely,

Tari v. State, 117 Ohio St. 481, 494 (1927), does not stand for the proposition they

contend. Tari simply states that a voidable judgment must be challenged by direct attack.

Id. (“If it was voidable, it is not a mere nullity, but only liable to be avoided by a direct

attack and the taking of proper steps to have its invalidity declared.”).

{¶27} The Ghoubrials alleged throughout their complaint, and the motions they

filed in the trial court and attached to their complaint, that Judge Brogan could not

collaterally attack the protection order issued in the Divorce Case. They apparently

equated his order that Ms. Ghoubrial file the deposition transcript under seal as a

“collateral attack” on Judge Quinn’s order. But it is not.

{¶28} Judge Brogan ordered the deposition transcript to be filed, under seal, for

in camera review. Judge Brogan recognized the import of Judge Quinn’s order and

respected it by ordering the transcript to be filed under seal. According to Judge Brogan’s

order, only he would review the deposition transcript.

{¶29} The Ghoubrials also contended that Judge Brogan’s order requiring Ms.

Ghoubrial to file the deposition transcript under seal put her in the position of either

violating Judge Brogan’s order or Judge Quinn’s order. We disagree with that argument

and conclude that the Ghoubrials also have an adequate remedy at law.
 C.A. No. 29458
Page 10 of 13

{¶30} Judge Quinn issued two orders related to discovery in the Divorce Case.

The first order was titled “CONFIDENTIALITY AGREEMENT AND STIPULATED

PROTECTIVE ORDER.” This order was prepared and filed before Ms. Ghoubrial’s

deposition that is the subject of this action, but it specifically applies to materials produced

before or after the order was entered.

{¶31} The first order includes procedures for a party to ask the court in the Divorce

Case to order that specific discovery material or testimony given in a deposition is

“Confidential Information.” The order further provides that discovery which is marked

as “Confidential Information” shall be produced only to counsel for a party, only be used

in the divorce action, and not be disclosed to any person or entity. The order includes a

list of exceptions to this blanket prohibition on disclosure including attorneys, the parties,

employees of attorneys, mediators, and court personnel in connection with the trial of the

divorce.

{¶32} While the list of exceptions would not apply to Judge Brogan in the civil

case, the next section of the order provided a roadmap for the parties to follow. Section

5 of the Divorce Case order states that if disclosure is sought of Confidential Information

from anyone covered by the order (i.e. Ms. Ghoubrial) by subpoena, demand by

governmental authority, court order, or other legal process, the person must take several

steps. The person must notify the other party (Dr. Ghoubrial) and then may move for a

protective order in domestic relations court. The person may also take action in any other

court with jurisdiction.
 C.A. No. 29458
Page 11 of 13

{¶33} Judge Quinn’s second order, filed after Ms. Ghoubrial’s deposition, orders

that Ms. Ghoubrial’s deposition transcript remain under seal of the Domestic Relations

Court, shall only be used by the parties to the divorce case, shall be marked as

confidential, and shall be “subject to the Protective Order previously executed by the

parties and filed with this Court.” The final provision of the second order states that the

deposition transcript shall only be used by the parties and counsel for the limited purposes

of the “divorce case and for no other purposes of any kind or nature.”

{¶34} The second order flowed from the first. Ms. Ghoubrial’s deposition

occurred after the first order. Dr. Ghoubrial moved to have the deposition marked as

Confidential Information and Judge Quinn granted that order over Ms. Ghoubrial’s

objection. The second order states that the deposition is subject to the first order and the

first order explains what a party, like Ms. Ghoubrial, should do when confronted with a

court order to disclose Confidential Information.

{¶35} According to Section 5 of the first order, when Respondents ordered Ms.

Ghoubrial to file the deposition in the civil case, she should have notified Dr. Ghoubrial,

the Designating Party, who could then have sought to prevent disclosure by filing a

motion for protective order with the court. If Dr. Ghoubrial made that motion, Ms.

Ghoubrial could not disclose the Confidential Information “until the issue is resolved by

order of the appropriate court unless required by the law or Court Order.” (emphasis

added).

{¶36} According to the complaint, Dr. Ghoubrial did not file a motion with the

Domestic Relations Court to seek protection after Judge Brogan ordered the deposition
 C.A. No. 29458
Page 12 of 13

to be filed under seal. Dr. Ghoubrial and Ms. Ghoubrial filed several motions with

Respondents in the underlying civil case in repeated attempts to convince Judge Brogan

to change his order. Relators did not, however, take advantage of the remedy available

to them in their own protective order in the Divorce Case.

{¶37} Even if the Ghoubrials had filed a motion in the Divorce Case, they ignore

that the Domestic Relations Court’s order includes a provision which authorizes release

of confidential information required by “Court Order.” Judge Brogan entered numerous

court orders regarding the release of the confidential information, and, according to the

terms of the Domestic Relations Court’s order set forth above, Ms. Ghoubrial could

disclose the confidential information.

Conclusion

{¶38} Considering the allegations in the complaint as true, we must conclude that

Judge Brogan, Magistrate Himelrigh, and the Summit County Common Pleas Court do

not patently and unambiguously lack jurisdiction. In light of this Court’s conclusion that

prohibition is not warranted, the Civil Case Plaintiffs’ motion to intervene is denied.

{¶39} Because the Ghoubrials cannot prevail on the facts they alleged, the petition

is dismissed. Costs of this action are taxed to Relators. The clerk of courts is hereby

directed to serve upon all parties not in default notice of this judgment and its date of

entry upon the journal. See Civ.R. 58(B).

LYNNE S. CALLAHAN
FOR THE COURT
 C.A. No. 29458
Page 13 of 13

HENSAL, J.
SCHAFER, J.
CONCUR.

APPEARANCES:

BRADLEY J. BARMEN and GARY M. ROSEN, Attorneys at Law, for Relators.

SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS, Assistant Prosecuting
Attorney, for Respondent.

PETER PATTAKOS and RACHEL HAZELET, Attorneys at Law, for Intervenors.