[Cite as State ex rel. Jones v. Paschke,

.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY

STATE OF OHIO ex rel. CASE NO. 2021-G-0013 JEREMY J. JONES,

Relator, Original Action for Writ of Prohibition -v-

THE HONORABLE JUDGE CAROLYN J. PASCHKE,

Respondent.

PER CURIAM OPINION

Decided: August 23, 2021 Judgment: Petition dismissed

Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., LPA, 55 Erieview Plaza, 5th Floor, Cleveland, OH 44114 (For Relator).

James R. Flaiz, Geauga County Prosecutor, and Linda M. Applebaum, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For Respondent).

PER CURIAM.

{¶1} Relator, Jeremy J. Jones (“Mr. Jones”), filed a verified petition for writ of

prohibition against respondent, the Honorable Judge Carolyn J. Paschke (“Judge

Paschke”), to prevent Judge Paschke from exceeding her jurisdiction in the matter of

Molly A. Jones v. Jeremy J. Jones in the Geauga County Court of Common Pleas by “improperly rubber stamping the decisions and orders of Magistrate Kevin L. Starrett and

authorizing the repeated violations of Civil Rule 53.”

{¶2} Judge Paschke moved to dismiss Mr. Jones’s petition pursuant to Civ.R.

12(B)(6). Mr. Jones filed a brief in opposition, and Judge Paschke filed a reply brief.

{¶3} We find that Mr. Jones has an adequate remedy at law by way of direct

appeal and grant Judge Paschke’s motion to dismiss.

Factual and Procedural History

{¶4} In his petition, Mr. Jones alleges that he is the defendant in the divorce

proceedings known as Molly A. Jones v. Jeremy J. Jones, which are currently pending

before Judge Paschke in Geauga County Court of Common Pleas case no. 19-DC-

000752.

{¶5} From September 19, 2019, to January 1, 2021, Magistrate Bruce C.

Smalheer (“Magistrate Smalheer”) conducted all hearings, ruled upon the parties’

motions, and issued interim orders. In January 2021, Magistrate Smalheer retired, and

Magistrate Kevin L. Starrett (“Magistrate Starrett”) began issuing orders and conducting

hearings in the proceedings. According to Mr. Jones, Judge Paschke did not issue a

judgment entry assigning the case to Magistrate Starrett pursuant to Civ.R. 53.

{¶6} Mr. Jones further alleges that Judge Paschke has disregarded and

continues to disregard “the procedures and mandates of Civ.R. 53” by “rubber stamping”

Magistrate Starrett’s rulings and by authorizing him to execute judgment entries.

Specifically, Mr. Jones cites four allegedly improper judgment entries: three judgment

entries that were executed by both Judge Paschke and Magistrate Starrett, including one

2

Case No. 2021-G-0013 relating to a telephone pretrial conference in which Judge Paschke did not personally

participate, and one judgment entry executed solely by Magistrate Starrett.

{¶7} Mr. Jones requests a writ of prohibition “directing and restraining” Judge

Paschke from “rubber stamping” Magistrate Starrett’s rulings and issuing judgment

entries in violation of Civ.R. 53.

{¶8} Judge Paschke filed a motion to dismiss and memorandum in support. She

disputes Mr. Jones’s allegations that she improperly “rubber stamped” orders and

contends that Mr. Jones has an adequate remedy at law through appeal.

{¶9} Mr. Jones filed a brief in opposition to Judge Paschke’s motion to dismiss.

He contends that he does not have an adequate remedy at law because the orders at

issue are not final, appealable orders over which this court has jurisdiction. He further

contends that an appeal following a final adjudication on the merits is not an adequate

remedy when Judge Paschke, as “the elected official assigned to his divorce

proceedings,” has “abdicated her role as the ultimate fact finder” in favor of Magistrate

Starrett.

Standard of Review

{¶10} Dismissal of a petition pursuant to Civ.R. 12(B)(6) for failure to state a viable

claim is warranted “when the nature of the relator’s allegations are such that, even if those

allegations are construed in a manner most favorable to the relator, they are still

insufficient to demonstrate that he will be able to prove a set of facts under which he

would be entitled to the writ.” Hamilton v. Collins, 11th Dist. Lake No. 2003-L-106, 2003-

Ohio-5703, ¶ 6.

3

Case No. 2021-G-0013 Legal Standards

{¶11} A writ of prohibition is an extraordinary judicial writ issuing out of a court of

superior jurisdiction and directed to an inferior tribunal commanding it to cease abusing

or usurping judicial functions. State ex rel. Tubbs Jones v. Suster,

,

(1998). The purpose of a writ of prohibition is to restrain inferior courts

and tribunals from exceeding their jurisdiction.

As such, it is an extraordinary remedy

which is customarily granted with caution and restraint and is issued only in cases of

necessity arising from the inadequacy of other remedies.

{¶12} To be entitled to a writ of prohibition, a relator must establish that (1) the

respondent is about to exercise judicial or quasi-judicial power, (2) the exercise of that

power is unauthorized by law, and (3) denying the writ would result in injury for which no

other adequate remedy exists in the ordinary course of law. State ex rel. Bell v. Pfeiffer,

,

,

, ¶ 18.

{¶13} The last two elements can be met by a showing that the trial court “patently

and unambiguously” lacked jurisdiction. Chesapeake Exploration, L.L.C. v. Oil & Gas

Comm.,

,

,

. “Where an inferior

court patently and unambiguously lacks jurisdiction over the cause, prohibition will lie both

to prevent the future unauthorized exercise of jurisdiction and to correct the results of

previous jurisdictionally unauthorized actions.” State ex rel. Stern v. Mascio,

,

(1998).

4

Case No. 2021-G-0013 Law and Analysis

{¶14} A review of Mr. Jones’s petition demonstrates he cannot establish that

Judge Paschke “patently and unambiguously” lacks jurisdiction or that he lacks an

adequate remedy at law.

{¶15} Mr. Jones does not allege in his petition that Judge Paschke lacks subject

matter jurisdiction over his divorce proceedings, much less that she “patently and

unambiguously” lacks jurisdiction. Rather, Mr. Jones contends that Judge Paschke’s

“conduct” is “outside of the jurisdiction conferred by Civ.R. 53.”

{¶16} In essence, Mr. Jones is challenging Judge Paschke’s exercise of her

subject matter jurisdiction. See State v. Harper,

,

,

. The Supreme Court of Ohio has recognized “a distinction between

a court that lacks subject-matter jurisdiction over a case and a court that improperly

exercises that subject-matter jurisdiction once conferred upon it.” Pratts v. Hurley,

,

,

, ¶ 10.

{¶17} In addition, the cases Mr. Jones cites in support of his petition undermine

his request for extraordinary relief.

{¶18} In State ex rel. Lesher v. Kainrad,

,

(1981), the appellant filed actions in mandamus and prohibition against the trial judge and

referee for their alleged failure to comply with Civ.R. 53.

. The Supreme Court

of Ohio affirmed this court’s dismissal, holding that the “failure * * * to comply with Civ.R.

53 renders the resulting judgment voidable, and not void.” (Emphasis added.)

.

{¶19} The other cases Mr. Jones cites involved direct appeals rather than

requests for extraordinary writs. See Davis v. Davis, 6th Dist. Wood No. WD-06-011,

5

Case No. 2021-G-0013

; In re Vitantonio, 11th Dist. Ashtabula No. 91-A-1683,

(Sept. 30, 1993); Haag v. Hagg,

,

(8th Dist. 1983);

Staggs v. Staggs,

,

(8th Dist. 1983). See also State

ex rel. Banc One Corp. v. Walker,

,

(1999)

(“Significantly, most of the authorities relied on by appellants were resolved by appeal

rather than by extraordinary writ”).

{¶20} This matter is similar to the Supreme Court of Ohio’s decision in State ex

rel. Nalls v. Russo,

,

,

. In that case,

the relator sought a writ of prohibition to stop the enforcement of an adjudication of

dependency. Id. at ¶ 13. The relator alleged, among other things, that the order referring

the case to the magistrate was improper and that the magistrate did not file a separate

decision before the trial judge issued a ruling. Id. at ¶ 17. The Supreme Court of Ohio

affirmed the appellate court’s denial of the writ, finding that the trial judge and magistrate

had “basic jurisdiction over the abuse and dependency proceeding” and that “[p]rohibition

will not issue as a substitute for appeal to review mere errors in judgment.” Id. at ¶ 28.

{¶21} As the court has explained, “appeal, not mandamus or prohibition, is the

remedy for the correction of errors.” State ex rel. Levin v. Sheffield Lake,

,

(1994). Therefore, “‘[e]xtraordinary remedies, i.e., mandamus

[and] prohibition[,] * * * may not be employed before trial on the merits, as a substitute for

an appeal for the purpose of reviewing mere errors, or irregularities in the proceedings of

a court having proper jurisdiction * * *.’”

quoting State ex rel. Woodbury v. Spitler,

,

(1973).

6

Case No. 2021-G-0013 {¶22} Similarly, this court has held that “the failure to comply with Civ.R. 53 will

permit an appellate court to reverse the judgment of the trial court in situations where

there was a deviation from the rule and the deviation prejudiced the appellant.” In re

Bortmas, 11th Dist. Trumbull No. 98-T-0147,

, *2 (Oct. 15, 1999). In

other words, “[t]he failure to comply with Civ.R. 53 constitutes grounds upon which the

appellate court may reverse the judgment of the trial court.” Erb v. Erb,

,

(9th Dist. 1989).

{¶23} Although the judgment entries at issue do not appear to be final judgments

subject to immediate appeal, Mr. Jones may challenge them on appeal following Judge

Paschke’s issuance of a final judgment. This court has held that an appeal from the

judgment concluding the case is an adequate legal remedy barring issuance of a writ of

prohibition. State ex rel. Welt v. Doherty, 11th Dist. Portage No. 2020-P-0018, 2020-

Ohio-6684, ¶ 21.

{¶24} Mr. Jones contends that a final adjudication on the merits is not an adequate

remedy “when the elected official assigned to his divorce proceedings * * * has abdicated

her role as the ultimate fact finder to the trial court Magistrate in violation of Civ.R. 53.”

However, this is a legal assertion, not a factual allegation, and Mr. Jones cites no authority

in support of this proposed distinction.

{¶25} Accordingly, Mr. Jones can prove no set of facts establishing that Judge

Paschke “patently and unambiguously” lacks jurisdiction or that he lacks an adequate

remedy at law.

{¶26} For the foregoing reasons, Judge Paschke’s motion to dismiss is granted.

MARY JANE TRAPP, P.J., CYNTHIA WESTCOTT RICE, J., MATT LYNCH, J., concur. 7

Case No. 2021-G-0013