[Cite as State ex rel. Linetsky v. Friedman,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100117

STATE OF OHIO, EX REL., TANYA LINETSKY RELATOR

vs.

JUDGE STUART FRIEDMAN RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Prohibition Motion Nos. 466723 and 466734 Order No. 466836

RELEASE DATE: July 24, 2013 ATTORNEYS FOR RELATOR

Rhys B. Cartwright-Jones 42 North Phelps St. Youngstown, OH 44503

Harlan D. Karp 850 Euclid Avenue, Suite 1330 Cleveland, OH 44114

ATTORNEY FOR RESPONDENT

Timothy J. McGinty Cuyahoga County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 EILEEN T. GALLAGHER, J.:

{¶1} On July 16, 2013, the relator, Tanya Linetsky, commenced this prohibition

action against the respondent, Judge Stuart Friedman, to prevent the judge from taking

further action in the underlying case, Linetsky v. DeJohn, Cuyahoga C.P. No. CV-672668.

Specifically, Linetsky is seeking to prohibit the judge from holding a hearing on a

motion for additional attorney fees that is scheduled for the afternoon of July 24, 2013,

and from ruling on that motion. On July 18, 2013, this court instructed the petitioner to

submit a copy of a September 25, 2012 journal entry denying the motion for additional

attorney fees as moot. Also, on that date, Linetsky filed an application for an alternative

writ. On July 19, 2013, Linetsky’s attorney filed the compliance with this court’s order

in which he stated that he could not find a signed September 25, 2012 journal entry after

making a search of the trial court file. For the following reasons, this court sua sponte

denies the applications for an alternative writ and a writ of prohibition. {¶2} In the underlying case, Linetsky sued DeJohn, a mortgage broker, for, inter

alia, fraud, negligence, and violations of the Federal Truth in Lending Act, the Ohio

Consumer Sales Practices Act, and the Ohio Mortgage Broker Act. After considerable

litigation, Linetsky voluntarily dismissed her claims against DeJohn pursuant to Civ.R.

41(A). DeJohn then filed a motion for attorney fees pursuant to R.C. 2323.51, frivolous

conduct in civil actions. Judge Friedman conducted an extensive hearing on the matter

in November 2011. On May 4, 2012, the judge granted DeJohn’s motion and awarded

$9,045.00 in attorney fees. Linetsky appealed on May 16, 2012, and filed a bond for

stay of judgment. On May 24, 2012, DeJohn then filed the subject motion for

additional attorney fees expended in preparing for and presenting the evidence for the

November 2011 hearing. Linetsky filed a brief in opposition to the subject motion on

May 31, 2012. This court affirmed the award of attorney fees on December 27, 2012.

Linetsky v. DeJohn, 8th Dist. Cuyahoga No. 98370,

. DeJohn

subsequently satisfied his award through the bond.

{¶3} On the docket of the underlying case on the line noting the filing of the

subject motion, there is the notation “09/25/2012 - moot.” However, there is no separate

docket entry for September 25, 2012, evidencing an actual journal entry denying the

subject motion as moot. Moreover, as sworn in the attorney’s affidavit, there is no

electronic image of a journal entry denying the subject motion as moot, nor is there a

“hard copy” of such a journal entry in the case file. On July 8, 2013, the respondent judge set the subject motion for a hearing on July 24, 2013. Linetsky then filed this

prohibition action.

{¶4} 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,

,

(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.

State ex rel. Ellis v. McCabe,

,

(1941), paragraph three of

the syllabus. “The 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.” State ex rel. Sparto v. Juvenile Court of Darke Cty.,

,

(1950). Furthermore, it should be used with great caution and not

issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common

Pleas,

,

(1940); and Reiss v. Columbus Mun. Court,

,

(10th Dist. 1956). Nevertheless, when a court is

patently and unambiguously without jurisdiction to act whatsoever, the availability or

adequacy of a remedy is immaterial to the issuance of a writ of prohibition. State ex rel.

Tilford v. Crush,

,

(1988); and State ex rel. Csank v.

Jaffe,

,

(8th Dist. 1995). However, 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 jurisdiction. A party

challenging the court’s jurisdiction has an adequate remedy at law via 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,

,

(1997). Moreover, the court has discretion in issuing the writ of prohibition. State ex

rel. Gilligan v. Hoddinott,

,

(1973).

{¶5} Linetsky argues that a writ of prohibition should issue basically on two

theories, (1) termination of jurisdiction and (2) law of the case. Under the termination of

jurisdiction principle, when a trial court unconditionally dismisses a case or a matter, or

the plaintiff voluntarily dismisses a case under Civ.R. 41(A)(1), the trial court patently

and unambiguously lacks jurisdiction to proceed. A writ of prohibition will issue to

prevent the exercise of jurisdiction. State ex rel. Hummel v. Sadler,

,

,

. Nevertheless, even when a case has otherwise been

fully resolved, the court retains jurisdiction to consider collateral issues, such as contempt

and sanctions. State ex rel. Benbow v. Runyan,

,

,

; and State ex rel. Richard v. Cuyahoga Cty. Bd. of Commrs.,

,

(8th Dist. 1995).

{¶6} Linetsky argues that the underlying case must be fully resolved because the

docket shows that the subject motion is moot and because she had dismissed the claim

and DeJohn litigated the issue of attorney fees all the way through collecting the

judgment. As a corollary to the termination of jurisdiction principle, a judge may not modify a final judgment; attempts to do so are nullities. Pitts v. Dept. of Transp.,

,

(1981).

{¶7} However, the court concludes that there is no authentic journal entry

resolving the subject motion. The lack of a separate listing for such a ruling on

September 25, 2012, on the docket; the lack of an electronic image in the clerk’s record;

and the lack of a hard copy in the case file convinces this court that the judge never issued

a journal entry denying the subject motion as moot. State v. Turner, 8th Dist. Cuyahoga

No. 88489,

, on which Linetsky relies, supports the conclusion that there

must be an actual signed journal entry and not just a notation on the docket. Although

this court affirmed in Turner the principle that a court speaks through its journal, the

court dismissed the appeal for lack of a final, appealable order because there was no

signed, file-stamped journal entry in the record, even though the docket said there was a

sentence and the parties stipulated to that as a fact. Civ.R. 58(A) requires a judge’s

signature. Thus, the motion is still outstanding, and the termination of jurisdiction

principle is not invoked on the grounds that the subject motion is resolved.

{¶8} The subject motion arguably is a motion for sanctions and comes within the

exception to the termination of jurisdiction principle. Therefore, the respondent judge

has sufficient jurisdiction to determine his own jurisdiction, and prohibition will not lie.

Appeal provides an adequate remedy at law to determine whether the trial court had

jurisdiction. In re: K.H., 8th Dist. Cuyahoga No. 92618,

(jurisdiction

of trial court determined on appeal). {¶9} The doctrine of the law of the case “provides that the decision of a reviewing

court in a case remains the law of the case on the legal questions involved for all

subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v.

Nolan,

,

(1984). Thus, “an inferior court has no

discretion to disregard the mandate of a superior court in a prior appeal in the same case.”

at syllabus. The doctrine is a rule of practice rather than a binding rule of

substantive law and will not be applied to achieve unjust results.

. Although a

court may issue an extraordinary writ to enforce law of the case, issues concerning its

application are often also resolved on appeal. State ex rel. Davis v. Cleary,

,

(8th Dist. 1991).

{¶10} In the present case, it is not certain that adjudicating the subject motion

would disregard the mandate of this court in Linetsky, 8th District Cuyahoga No. 98370,

. Certainly, if DeJohn was attempting to add to the sanctions for the

time period before the hearing, then adjudication would be prohibited. However, the

subject motion is arguably another motion for sanctions occurring after the time period

for the initial motion for sanctions. Thus, it is arguably outside the scope of the mandate

in Linetsky. Again, the respondent judge has sufficient jurisdiction to determine his

own jurisdiction, and prohibition will not lie.

{¶11} This is a narrow holding. Prohibition should not issue in doubtful cases,

and the subject motion is arguably within exceptions to the termination of jurisdiction and

law of the case principles. Thus, the trial court must determine his own jurisdiction. Nothing in this opinion should bar Linetsky from arguing jurisdiction, law of the case,

waiver, satisfaction, laches, or any other good-faith argument.

{¶12} Accordingly, this court denies the applications for an alternative writ and the

writ of prohibition. 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).

{¶13} Writ denied.

EILEEN T. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and PATRICIA ANN BLACKMON, J., CONCUR