[Cite as State ex rel. Hare v. Russell,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, EX REL. BRANDON : CASE NO. C-210344 HARE,

Relator, : O P I N I O N. vs. :

THE HONORABLE HEATHER S. : RUSSELL,

Respondent. :

Original Action in Prohibition

Judgment of the Court: Writ of Prohibition Granted

Date of Judgment Entry on Appeal: June 8, 2022

Raymond T. Faller, Hamilton County Public Defender, and Krista M. Gieske, Assistant Public Defender, for Relator,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Respondent. OHIO FIRST DISTRICT COURT OF APPEALS

2 OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, JUDGE.

{¶1} Relator Brandon Hare was charged with one count of assault for

allegedly hitting his ex-girlfriend, Regina Pugh, and pushing her to the ground. The

matter proceeded to a bench trial on May 3, 2021, before Respondent Judge Heather

S. Russell. There was a disagreement between defense counsel and Judge Russell that

led Judge Russell to orally declare a mistrial and recuse herself. On the “Judge’s

Sheet,”1 Judge Russell wrote, “Court recuses – rerolls,” but did not explain her recusal

or state that a mistrial had been declared.

{¶2} The case was transferred to Judge Gwen Bender. Hare moved to dismiss

the assault charge on double-jeopardy grounds. A hearing on the motion to dismiss

was held on May 27, 2021. Judge Bender denied the motion, finding that Judge Russell

had declared a mistrial because she no longer felt that she could remain fair and

impartial toward Hare due to “butting heads” with defense counsel.2 That same day,

the state filed a motion requesting that Judge Russell issue a nunc pro tunc entry

“clarifying that a mistrial was declared on this matter.” Judge Russell issued a nunc

pro tunc entry on June 1, 2021, wherein she wrote on the Judge’s Sheet, “Based on

defense attorney’s statements, the court declares a mistrial, recuses, and requests that

the case be re-rolled.”

{¶3} Hare has filed a “verified complaint for writ of prohibition” requesting

that this court vacate the June 1, 2021 nunc pro tunc judgment entry entered by Judge

Russell, and restrain Judge Russell from entering any further orders related to the

1 See Cincinnati v. Walker, 1st Dist. Hamilton No. C-070770,

(explaining the use of the “Judge’s Sheet” in Hamilton County Municipal Court). 2 Hare has filed an appeal of the denial of his motion to dismiss in the appeal numbered C-210321.

3 OHIO FIRST DISTRICT COURT OF APPEALS

case. Respondent filed an answer denying the allegations. Both parties have moved for

summary judgment.

Summary Judgment

{¶4} A petition seeking a writ of prohibition is a civil action and may be

resolved on summary judgment. See State ex rel. New Prospect Baptist Church v.

Ruehlman, 1st Dist. Hamilton No. C-180591,

. Summary

judgment is appropriate when “there exists no genuine issue of material fact, the party

moving for summary judgment is entitled to judgment as a matter of law, and the

evidence, when viewed in favor of the nonmoving party, permits only one reasonable

conclusion that is adverse to that party.” Collett v. Sharkey, 1st Dist. Hamilton No. C-

200446,

.

Writ of Prohibition

{¶5} “Prohibition is an extraordinary writ issued to prevent a court or

tribunal from usurping or exercising judicial power or judicial functions which have

not been conferred upon it by law.” State ex rel. Daily Reporter v. Court of Common

Pleas of Franklin Cty.,

,

(1990). “The writ of

prohibition is a high prerogative writ to be used with great caution in the furtherance

of justice and only where there is no other regular, ordinary, and adequate remedy.”

State ex rel. Stark v. Summit Cty. Court of Common Pleas,

,

(1987).

{¶6} To demonstrate entitlement to a writ of prohibition, Hare must

establish that “(1) [Judge Russell] is about to or has exercised 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.” See State ex rel. Fiser v. Kolesar,

,

,

4 OHIO FIRST DISTRICT COURT OF APPEALS

, quoting State ex rel. Balas-Bratton v. Husted,

,

,

. The second and third elements are satisfied

where the relator demonstrates that the lack of jurisdiction is “patent and

unambiguous.”

.

I. Is Judge Russell about to exercise, or has she exercised, judicial power?

{¶7} Respondent argues there is no indication that she is about to exercise

judicial power in the case. She contends that she issued the nunc pro tunc entry to

simply clarify her relinquishment of power in the case.

{¶8} A writ of prohibition is typically used as a preventative tool, but it may

be used to vacate prior “jurisdictionally unauthorized actions.” See State ex rel. Stern

Pros. Atty. v. Mascio,

,

(1998) (“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.” (Emphasis

added.)); State ex rel. Adams v. Gusweiler,

,

(1972) (“a court which has jurisdiction to issue the writ of prohibition as well as the

writs of procedendo and mandamus has plenary power, not only to prevent excesses

of lower tribunals, but to correct the results thereof and to restore the parties to the

same position they occupied before the excesses occurred”).

{¶9} Thus, despite the fact that there is no indication that Judge Russell is

about to exercise judicial power, a writ of prohibition may still be issued to vacate the

June 1, 2021 entry if she lacked jurisdiction to enter it. See Cummins & Brown, LLC v.

Cummins, 1st Dist. Hamilton No. C-200166,

(a reviewing court

has inherent authority to vacate void judgments).

5 OHIO FIRST DISTRICT COURT OF APPEALS

II. Was Judge Russell’s nunc pro tunc entry unauthorized by law?

{¶10} “Jurisdiction” refers to three, distinct concepts: “jurisdiction over the

subject matter, jurisdiction over the person, and jurisdiction over a particular case.”

WBCMT 2007-C33 Office 7870, L.L.C. v. Breakwater Equity Partners, L.L.C., 2019-

Ohio-3935,

, ¶ 8 (1st Dist.). Jurisdiction over the case connotes “the

court’s authority to proceed or rule on a case that is within the court’s subject-matter

jurisdiction.” Id. at ¶ 9. A court’s judgment is void when it lacks subject-matter

jurisdiction; lack of jurisdiction over the case merely renders the judgment voidable.

Id. at ¶ 33.

{¶11} Judge Russell recused herself on May 3 and lost jurisdiction over the

case thereafter. Therefore, her June 1 nunc pro tunc entry was voidable, subject to a

timely objection. See Tissue v. Tissue, 8th Dist. Cuyahoga No. 83708, 2004-Ohio-

5968, ¶ 13 (“The voluntary recusal of a judge from a case made all judicial acts by that

judge on that case voidable subject to a timely objection.”); Mascio,

,

(issuing a writ of prohibition holding that all of a judge’s orders

in the case after his recusal were void and preventing the judge from proceeding in the

case until the Chief Justice had ruled on the affidavit of disqualification filed by the

relator).

{¶12} Hare’s filing of the complaint for a writ of prohibition 14 days after

Judge Russell’s nunc pro tunc entry amounted to an objection to Judge Russell’s

issuance of the nunc pro tunc entry.

{¶13} Respondent argues that the nunc pro tunc entry related back to May 3

when she orally announced the mistrial and issued a written entry recusing herself.

“Because a nunc pro tunc order is an order done ‘now for then,’ ‘by its very nature, it

applies retrospectively to the judgment it corrects.’ ” In re E.B., 1st Dist. Hamilton No.

6 OHIO FIRST DISTRICT COURT OF APPEALS

, quoting State v. Lester,

, 2011-

Ohio-5204,

. However, in In re E.B., this court held that the trial

court lacked jurisdiction at the time it issued its first nunc pro tunc entry, and therefore

the entry was a nullity. In re E.B. at ¶ 6.

{¶14} Crim.R. 36 allows the trial court to issue nunc pro tunc entries “at any

time,” but it would be incorrect to say that Crim.R. 36 confers jurisdiction on a judge

when she has none. See State v. Aarons, 8th Dist. Cuyahoga No. 110313, 2021-Ohio-

3671, ¶ 22 (“although Crim.R. 36 permits a nunc pro tunc entry to be filed ‘at any time,’

a notice of appeal will divest a trial court of jurisdiction to do so” where the nunc pro

tunc entry interferes with appellate jurisdiction). Because Judge Russell lost

jurisdiction over the case once she recused herself, she lost the ability to issue any

further orders in the case, including nunc pro tunc entries. Judge Russell patently and

unambiguously lacked jurisdiction to issue the June 1 nunc pro tunc entry.

III. Would denying the writ result in injury for which no other adequate remedy exists in the ordinary course of law?

{¶15} Respondent argues that Hare has an adequate remedy at law through

the direct appeal of the denial of his motion to dismiss. Respondent claims that this

court can disregard the nunc pro tunc entry when deciding Hare’s direct appeal.

{¶16} However, there is an exception to the third element. Hare is not

required to establish that he has no adequate remedy at law if he demonstrates that

Judge Russell patently and unambiguously lacked jurisdiction to issue the nunc pro

tunc entry. See State ex rel. Thomas v. McGinty,

,

,

; Gusweiler,

,

(“If an inferior

court is without jurisdiction whatsoever to act, the availability or adequacy of a remedy

of appeal to prevent the resulting injustice is immaterial to the exercise of supervisory

7 OHIO FIRST DISTRICT COURT OF APPEALS

jurisdiction by a superior court to prevent usurpation of jurisdiction by the inferior

court.”).

{¶17} There is a question as to whether this exception relates only to subject-

matter jurisdiction, or includes personal jurisdiction and jurisdiction over the case.

See State ex rel. Sponaugle v. Hein,

,

, ¶ 34-43 (2d Dist.)

(discussing differing decisions of the Ohio Supreme Court on the matter).

{¶18} Several Ohio Supreme Court decisions have applied the exception only

to subject-matter jurisdiction. See, e.g, Ohio High School Athletic Assn. v. Ruehlman,

,

,

, ¶ 6; State ex rel. Welt v.

Doherty, Slip Opinion No.

.

{¶19} But the Ohio Supreme Court has also applied the exception in cases

concerning personal jurisdiction and jurisdiction over the case. See, e.g., State ex rel.

Doe v. Capper,

,

,

, ¶ 15 (granting

the writ of prohibition where the trial judge patently and unambiguously lacked

personal jurisdiction); State ex rel. Moir v. Kovack,

, 2016-Ohio-

158,

(holding that the trial judge patently and unambiguously

lacked jurisdiction to assign magistrates to the case after she recused herself from the

case).

{¶20} In State ex rel. Durrani v. Ruehlman,

, 2016-Ohio-

7740,

, the trial judge, who was not the administrative judge, signed

an order prepared for the administrative judge’s signature consolidating multiple

medical-malpractice cases. The judge then transferred the cases from other judges

onto his own docket. Id. at ¶ 6. The Ohio Supreme Court granted the writ of prohibition

because Judge Ruehlman “patently and unambiguously lacked the authority to order

8 OHIO FIRST DISTRICT COURT OF APPEALS

the consolidation of the underlying malpractice cases.” Id. at ¶ 28. The court stated,

“[T]his case is not about the jurisdiction of the trial court, or even of Judge Ruehlman,

to hear the underlying tort cases. Rather, it is about Judge Ruehlman’s authority to

consolidate the Durrani cases and remove them from the judges to whom they had

been assigned * * *.” Id. at ¶ 24.

{¶21} Limiting the exception to only those cases involving subject-matter

jurisdiction would fail to comport with the purpose of the writ of prohibition—to

prevent an inferior tribunal from abusing or usurping judicial functions. State ex rel.

Staton v. Common Pleas Court,

,

(1965), citing State

ex rel. Burtzlaff v. Vickery,

,

(1929). The “legitimate

scope and purpose” of a writ of prohibition “is to keep inferior courts within the limits

of their own jurisdiction and to prevent them from encroaching upon the jurisdiction

of other tribunals.”

.

{¶22} By issuing her June 1 entry, Judge Russell usurped the authority of

Judge Bender. Because Judge Russell patently and unambiguously lacked jurisdiction

over the case, a peremptory writ of prohibition is appropriate.

Conclusion

{¶23} Judge Russell’s motion for summary judgment is denied. Hare’s motion

for summary judgment is granted and a peremptory writ of prohibition is issued.

Judge Russell’s June 1, 2021 nunc pro tunc entry is vacated and she is hereby

restrained from exercising further judicial authority in this case.

Writ granted.

BERGERON, J., concurs. MYERS, P.J., dissents.

9 OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, P.J., dissenting.

{¶24} Because I conclude that this is not the rare case that requires a writ of

prohibition, I respectfully dissent. I conclude that a writ of prohibition should not lie

because Judge Russell did not patently and unambiguously lack subject-matter

jurisdiction over the case, the exercise of her judicial power in issuing a nunc pro tunc

entry was not unauthorized by law, and Hare has an adequate remedy at law.

{¶25} Recent Supreme Court of Ohio cases have examined the circumstances

under which writs of prohibition should be granted, and have cautioned that they are

a rare and extraordinary remedy. The Supreme Court has also recently examined the

term “jurisdiction” and given us guidance as to the difference between jurisdiction and

authority. This case implicates both concepts.

{¶26} In Ohio High School Athletic Assn. v. Ruehlman,

,

,

, the Supreme Court of Ohio denied the Ohio High

School Athletic Association’s (“OHSAA”) request for a writ of prohibition against a

judge who had issued a temporary restraining order enjoining application of an

OHSAA rule. The court began by examining the requirements of extraordinary writs:

We reserve the use of extraordinary writs for rare cases. 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,

,

(2001). “In 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,

,

,

. The OHSAA does not contend that it lacks an

10 OHIO FIRST DISTRICT COURT OF APPEALS

adequate remedy at law but, rather, seeks to rely on the narrow

exception that allows us to issue a writ of prohibition “where there is a

patent and unambiguous lack of subject matter jurisdiction.” State

ex rel. Ohio Edison Co. v. Parrott,

,

(1995).

(Emphasis added.) Ruehlman at ¶ 6.

{¶27} The court recognized that in the past, when it had found a patent and

unambiguous lack of jurisdiction, it was almost always because a statute explicitly

removed jurisdiction. Id. at ¶ 9 (delineating cases involving statutes that conferred

exclusive jurisdiction for certain matters in particular courts).

{¶28} The court then engaged in an analysis of the word “jurisdiction,” which

it had expanded upon in recent decisions, as discussed below:

In relying on these cases, the OHSAA fails to account for the varying

manners in which the word “jurisdiction” has been used. See [Bank of

Am., N.A. v.] Kutcha,

,

,

; Pratts v. Hurley,

,

,

, ¶ 33. “ ‘Jurisdiction,’ it has been observed, ‘is a word of

many, too many, meanings.’ ” Steel Co. v. Citizens for a Better

Environment,

,

,

(1998),

quoting United States v. Vanness,

, 318 U.S. App.D.C.

95 (D.C.Cir. 1996), fn.2. The “unspecified use of this polysemic word”

often “lead[s] to confusion and has repeatedly required clarification as

to which type of ‘jurisdiction’ is applicable in various legal analyses.”

Kutcha at ¶ 18. Thus, we have made clear, “There is a distinction

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

11 OHIO FIRST DISTRICT COURT OF APPEALS

court that improperly exercises that subject-matter jurisdiction once

conferred upon it.” Pratts at ¶ 10.

Ruehlman at ¶ 11.

{¶29} The court found that the subject matter in the case fell squarely within

the jurisdiction granted by the Ohio Constitution and the Ohio Revised Code to the

Hamilton County Court of Common Pleas. Id. at ¶ 17. Thus, it denied the writ of

prohibition. Id.

{¶30} Less than a year ago, the Supreme Court had another opportunity to

examine the meaning of a patent and unambiguous lack of jurisdiction. In State ex

rel. Welt v. Doherty, Slip Opinion No.

, a unanimous decision, the

court denied a writ of prohibition against a trial court judge. The court reiterated that

prohibition will generally lie only for an absence of subject-matter jurisdiction.

. It then distinguished subject-matter jurisdiction from jurisdiction over a case:

We have distinguished a court’s subject-matter jurisdiction from

a court’s “jurisdiction over a particular case.” See Bank of Am., N.A. v.

Kuchta,

,

,

. “Subject

matter jurisdiction is the power of a court to entertain and adjudicate a

particular class of cases” and “is determined without regard to the rights

of the individual parties involved in a particular case.” Id. at ¶ 19. A

court’s jurisdiction over a particular case pertains to “the court’s

authority to proceed or rule on a case that is within the court’s subject-

matter jurisdiction.” Id.

A party that contests a court’s jurisdiction over a particular case

does not call into question the subject-matter jurisdiction of the court.

Id. at ¶ 22-23; see also State ex rel. Novak, L.L.P. v. Ambrose,

OHIO FIRST DISTRICT COURT OF APPEALS

St.3d 425,

,

(when a court

possesses general subject-matter jurisdiction, an error in that court’s

exercise of jurisdiction over a particular case may be appealed).

. The Supreme Court affirmed the dismissal of a petition for a writ of

prohibition on the ground that the issue raised by the petitioner did not affect the

subject-matter jurisdiction of the trial court over such claims, and the petitioner had

an adequate remedy by way of appeal. Id. at ¶ 15, 20.

{¶31} As the majority points out, in State ex rel. Durrani v. Ruehlman,

,

,

, the Supreme Court of Ohio

granted a writ of prohibition ordering a trial judge to refrain from taking any further

action in cases not originally assigned to him and vacated the judge’s order

consolidating the cases. The court held that the judge was patently and

unambiguously “without jurisdiction to take the actions that he did.” Id. at ¶ 17.

{¶32} The Supreme Court acknowledged that the trial judge, as a judge of a

court of common pleas, “has the general jurisdiction” (subject-matter jurisdiction) to

preside over a medical-malpractice case, id. at ¶ 19, but held that the judge lacked the

“judicial power,” id. at ¶ 21, and the “authority” under the Rules of Superintendence

of the Courts, the Civil Rules, and the Hamilton County Local Rules to transfer the

cases to himself from the other judges to whom the cases had originally been assigned

or to consolidate the cases. Id. at ¶ 26. The court acknowledged the trial judge’s

argument that local court rules do not establish a court’s jurisdiction: “But this case

is not about the jurisdiction of the trial court, or even of Judge Ruehlman, to hear the

underlying tort cases. Rather, it is about Judge Ruehlman’s authority to [consolidate

the cases and remove them from their assigned judges].” Id. at ¶ 24. I note that this

13 OHIO FIRST DISTRICT COURT OF APPEALS

case, and its uses of the terms “jurisdiction,” “judicial power,” and “authority,” seems

to run contrary to the Supreme Court’s more recent decisions in Ruehlman and Welt.

{¶33} Finally, in the context of void vs. voidable judgments, the Supreme

Court of Ohio has also clarified the concept of jurisdiction. If a specific action is within

a court’s subject-matter jurisdiction, any error by the court in exercising that

jurisdiction renders the court’s judgment voidable, not void. State v. Harper,

,

,

; State v. Henderson,

,

,

.

{¶34} Against this background, I examine this case and conclude that this is

not the rare case that requires a writ of prohibition. As set forth by the majority, to

demonstrate entitlement to a writ of prohibition, Hare must establish that Judge

Russell either exercised or is about to exercise judicial or quasi-judicial power, the

exercise of that power is unauthorized by law, and a denial of the writ would result in

injury for which no other adequate remedy exists in the ordinary course of law. See

majority opinion at ¶ 6. These latter two elements may be established by showing that

Judge Russell patently and unambiguously lacked jurisdiction.

{¶35} I would determine that a writ of prohibition should not lie because

Judge Russell did not patently and unambiguously lack subject-matter jurisdiction

over the case, the exercise of her judicial power in issuing a nunc pro tunc entry was

not unauthorized by law, and Hare has an adequate remedy at law.

{¶36} First, turning to whether Judge Russell patently and unambiguously

lacked subject-matter jurisdiction, there can be no argument that under R.C.

1901.20(A)(1), Judge Russell, as a Hamilton County Municipal Court judge, had

subject-matter jurisdiction over this case. In fact, she exercised that jurisdiction

without objection, even conducting a trial. And Hare cites to no statute otherwise

14 OHIO FIRST DISTRICT COURT OF APPEALS

denying Judge Russell subject-matter jurisdiction. See Ruehlman,

,

,

, at ¶ 9-10. While I agree with the majority that once

Judge Russell determined she could no longer be fair and recused herself, she

generally lost the authority to act any further in the case, I disagree with its conclusion

that this means she patently lacked jurisdiction to enter a nunc pro tunc entry.

{¶37} The majority relies on State ex rel. Durrani v. Ruehlman,

,

,

, to hold that even though Judge Russell had

subject-matter jurisdiction over the case, she nonetheless patently and unambiguously

lacked jurisdiction because her action usurped the authority of Judge Bender. Even if

I were persuaded that a court can patently and unambiguously lack jurisdiction while

still having subject-matter jurisdiction, which I am not, I would maintain that Judge

Russell did not patently and unambiguously lack jurisdiction in this case to enter a

nunc pro tunc entry, which related back to a time when she clearly had authority and

jurisdiction over the case. In Durrani, the Supreme Court of Ohio found that Judge

Ruehlman lacked the judicial power to consolidate and reassign all the Durrani cases

to himself because his actions violated the Rules of Superintendence, the Civil Rules,

and the Hamilton County Local Rules.

. Unlike Judge Ruehlman’s

actions, the actions of Judge Russell in entering a nunc pro tunc entry were not in

violation of any statutes or rules, and she did not lack authority (as discussed in more

detail below) to enter the nunc pro tunc order.

{¶38} Because I find no patent and unambiguous lack of jurisdiction, I must

examine whether Hare is otherwise entitled to a writ of prohibition. In doing so, I find

that Judge Russell’s exercise of her judicial power to issue a nunc pro tunc entry was

not unauthorized by law. Judge Russell believed she was simply entering a nunc pro

15 OHIO FIRST DISTRICT COURT OF APPEALS

tunc entry to correct a clerical error or omission to properly reflect her granting of a

mistrial.

{¶39} The majority concludes that writs of prohibition should lie even where

subject-matter jurisdiction exists, so as to prevent an inferior court from usurping a

superior court’s judicial functions. Majority opinion at ¶ 21. They conclude that “by

issuing her June 1 entry, Judge Russell usurped the authority of Judge Bender.”

However, I conclude that Judge Russell had the authority to put on a proper nunc pro

tunc entry and that it applied retroactively to the time that she still had authority over

the case.

{¶40} Crim.R. 36 provides: “Clerical mistakes in judgments, orders, or other

parts of the record, and errors in the record arising from oversight or omission, may

be corrected by the court at any time.” The majority writes that “it would be incorrect

to say that Crim.R. 36 confers jurisdiction on a judge when she has none.” Majority

opinion at ¶ 14. I agree that the rule does not “confer” jurisdiction. Rather, the rule

simply reflects that a court may always correct nonsubstantive omissions in its entries.

{¶41} “An order issued ‘nunc pro tunc’—Latin for ‘now for then’—is defined as

‘[h]aving retroactive legal effect through a court’s inherent power.’ ” In re E.B., 1st

Dist. Hamilton No. C-150351,

(“E.B. III”), quoting Black’s Law

Dictionary 1100 (8th Ed. 2004). It “must reflect ‘what the court actually decided, not

what the court might or should have decided or what the court intended to decide.’ ”

quoting State ex rel. Fogle v. Steiner,

,

(1995). It is given retrospective operation.

{¶42} The Supreme Court of Ohio has said, “It is well settled that courts

possess the authority to correct errors in judgment entries so that the record speaks

the truth.” State v. Lester,

,

,

.

16 OHIO FIRST DISTRICT COURT OF APPEALS

A court may correct a “clerical error, mistake, or omission that is mechanical in nature

and apparent on the record[.]”

“ ‘It is a simple device by which a court may make

its journal speak the truth * * * by correcting a judicial record that fails to show an

order or a judgment of the court because the order or judgment was not recorded at

all in the first instance.’ ” Id. at ¶ 19, quoting State v. Breedlove,

,

(1st Dist. 1988), quoting Natl. Life Ins. Co. v. Kohn,

,

(1937).

{¶43} In State v. Lester, the trial court filed a nunc pro tunc judgment entry

that supplemented the wording of the original resentencing entry to add that the

defendant’s conviction occurred pursuant to a jury trial.

. The Supreme

Court held that “the sole purpose of the nunc pro tunc entry was to correctly state that

the appellant’s original conviction was based on a jury verdict, a fact that was obvious

to the court and all the parties.” Id. at ¶ 20. The entry “merely corrected a clerical

omission in the resentencing order and made the entry reflect what had already

happened, which was appellant’s conviction by jury verdict.” Id. The Supreme Court

stated that “[t]he trial court’s addition indicating how appellant’s conviction was

effected affected only the form of the entry and made no substantive changes.” Id.

{¶44} In this case, Judge Russell stated at the May 3 trial:

You know what? I’m going to recuse from this case. I’m going to call a

mistrial because, quite frankly, I don’t like you telling me what you have

to do and don’t have to do. I was politely issuing some suggestions and

some guidance. We are not managing very well here -- * * * -- together

and so I am calling a mistrial and you can re-roll it.

17 OHIO FIRST DISTRICT COURT OF APPEALS

Looking at what occurred, Judge Russell (1) recused from the case and (2) declared a

mistrial because of (3) defense counsel’s telling the court what defense counsel had to

do and did not have to do, and (4) said the case could be re-rolled.

{¶45} However, Judge Russell’s May 3 entry (judge’s sheet) merely stated,

“Court recuses – rerolls.” On the other hand, Judge Russell’s June 1 nunc pro tunc

entry stated, “Based on defense attorney’s statements, the court declares a mistrial,

recuses, and requests that the case be re-rolled.” These are the same exact four

elements that the judge discussed on the record in front of the parties at the May 3

trial. The sole purpose of Judge Russell’s nunc pro tunc entry was to correctly state

that, based on defense counsel’s statements, she had declared a mistrial, recused

herself, and requested that the case be re-rolled. Just like the nunc pro tunc entry in

Lester, the facts stated by Judge Russell in her nunc pro tunc entry were “obvious to

the court and all the parties.” See Lester,

,

,

. And just like in Lester, Judge Russell’s nunc pro tunc entry

“merely corrected a clerical omission * * * and made the entry reflect what had already

happened.” See

Importantly, like the entry in Lester, Judge Russell’s nunc pro

tunc entry “affected only the form of the entry and made no substantive changes.” See

{¶46} Hare contends that the nunc pro tunc entry “went beyond the state’s

requested relief” and “supplemented the court’s entry with additional findings.” First,

as I pointed out, the judge’s nunc pro tunc entry merely reflected what had already

happened and was obvious to the parties, so the entry was not supplemented with any

findings. Second, in the state’s motion requesting a nunc pro tunc entry, the state

noted that Judge Russell “indicated audibly that a mistrial was declared,” and set forth

Judge Russell’s verbal reasoning, as I set forth above. The state requested “an entry

18 OHIO FIRST DISTRICT COURT OF APPEALS

clarifying, formally, that a mistrial was declared, which is consistent with the record

of the proceedings.” That is exactly what Judge Russell did. She recited the exact same

four statements in her judgment entry that she verbally recited at the trial. Contrary

to Hare’s assertion, there were no “additional findings.”

{¶47} The majority at paragraph ¶ 13, cites this court’s decision in E.B. III, 1st

Dist. Hamilton No. C-150351,

, where we set forth the case’s rather

confusing procedural history. In that case, the trial court imposed a one-year sentence

on an aggravated robbery and a three-year sentence on a firearm specification, but its

entry “flipped the sentence: it recited three years for the aggravated robbery and one

year for the firearm specification.” E.B. III at ¶ 4. We affirmed the court’s judgment.

In re E.B., 1st Dist. Hamilton Nos. C-120650 and C-120651 (Jun. 19, 2013) (“E.B. I”).

{¶48} While the appeal in E.B. I was pending, the trial court realized its error

and issued a nunc pro tunc entry to correct its sentencing entry to reflect what had

actually happened during the disposition hearing—the imposition of a one-year term

for aggravated robbery and a three-year term for the specification. Id. at ¶ 6. E.B. filed

a motion to vacate the judgment, the trial court denied it, and E.B. appealed. Id. “We

declined to address E.B.’s assignment of error, concluding that the court’s nunc pro

tunc order—and, consequently his motion requesting relief from that order—was a

nullity because the trial court had had no jurisdiction to enter the order while the

matter was on appeal.” Id., citing In re E.B., 1st Dist. Hamilton No. C-140440 (Mar.

20, 2015) (“E.B. II”).

{¶49} In considering the issue in E.B. III, we first noted: “Following our

judgment entry in E.B. II, the trial court entered a second nunc pro tunc order, again

seeking to correct the error in the original sentencing entry.” Id. at ¶ 7. The trial court

used its second nunc pro tunc entry to accomplish the same thing it did with its first

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nunc pro tunc entry, which was to correct its sentencing entry to reflect that E.B. was

to serve one year for the aggravated robbery and three years for the gun specification.

See E.B. III at ¶ 6 and 7. We held that the second nunc pro tunc entry was proper

because the trial court “did not modify E.B.’s original sentence. Rather, it corrected

the entry so that it reflected what had actually happened during the disposition

hearing—the court sentenced E.B. to one year for aggravated robbery and three years

for the gun specification.” Id. at ¶ 9.

{¶50} “Because a nunc pro tunc order is an order done ‘now for then,’ ‘by its

very nature[,] it applies retrospectively to the judgment it corrects.’ ” Id. at ¶ 10, citing

Lester,

,

,

. Like the nunc

pro tunc entries in E.B. III, Judge Russell’s June 1 nunc pro tunc entry merely

corrected her entry to reflect what had actually happened during the trial. Because the

entry was proper, it applied retroactively to the time that she still had authority over

the case.

{¶51} In Doe v. Catholic Diocese,

,

,

(8th Dist.), the plaintiff appealed the trial court’s transfer and

reassignment of her case to two different judges, claiming that the orders transferring

the case failed to state the reason for the transfers. Doe at ¶ 1. She also appealed two

nunc pro tunc journal entries, wherein the administrative judge provided reasons for

the reassignments and the denial of the plaintiff’s motion for relief from judgment. Id.

{¶52} The first assigned judge recused herself because defense counsel had an

attorney-client relationship with the judge’s husband and his law firm. Id. at ¶ 3. The

administrative judge reassigned the case to a second judge “for good cause.” Id. When

the second judge also recused, the administrative judge’s entry reassigning to a third

judge stated the transfer was “for good cause.” Id.

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{¶53} The third judge granted the defendant’s motion to dismiss, which the

plaintiff appealed. Id. at ¶ 4. The Eighth District, however, remanded the case to allow

a ruling on the plaintiff’s Civ.R. 60(B)(5) motion, which she had filed with the

administrative judge. Id. The administrative judge entered nunc pro tunc entries

providing specific reasons for the previous reassignments. Id. at ¶ 5. The third judge

filed an entry striking the plaintiff’s motion. Id. The plaintiff appealed the

administrative judge’s entries and the third judge’s order. Id. at ¶ 6.

{¶54} On appeal, the plaintiff argued that the administrative judge erred when

he issued nunc pro tunc entries providing explanations for the previously entered

orders reassigning the case because her appeal had divested him of jurisdiction and

because the entries had made substantive changes. Doe,

, 2004-

Ohio-3470,

, at ¶ 8.

{¶55} The Eighth District relied on App.R. 9(E) and Civ.R. 60(A), the civil

counterpart of Crim.R. 36, that allows a court to correct “[c]lerical mistakes in

judgments, orders or other parts of the record and errors therein arising from

oversight or omission” at any time. Id. at ¶ 11-17. The court noted that, even when a

case is pending on appeal, the trial judge “retains jurisdiction to enter nunc pro tunc

orders so that the record will conform to what occurred in the trial court.” Id. at ¶ 18.

The court held that the nunc pro tunc entries were properly entered because they did

not change the substance of the previous orders and “simply add[ed] additional

information concerning what happened in the trial court that necessitated the

reassignments.” Id. at ¶ 19.

{¶56} Just like in Doe, where the nunc pro tunc entries added information

concerning what happened in the trial court to necessitate the reassignments, Judge

Russell’s nunc pro tunc entry added information concerning what happened in open

21 OHIO FIRST DISTRICT COURT OF APPEALS

court to necessitate her actions. And who, if not the original trial judge, is in a position

to do this? I would therefore hold that Judge Russell’s exercise of her judicial power

to issue a nunc pro tunc entry was not unauthorized by law.

{¶57} Even assuming Judge Russell lacked authority to enter the nunc pro

tunc entry, I would further deny the writ because I would hold that Hare has an

adequate remedy at law. He simply could ask the new trial judge to strike the entry.

{¶58} Finally, I note that there is no indication that Judge Russell has

attempted or will attempt to do anything other than correct an entry that she thought

was needed to accurately reflect what occurred (even if she was mistaken as to her

authority). Thus, there is no reason to prohibit her from acting in the future.

{¶59} In short, I would find that the court did not patently lack jurisdiction,

that Judge Russell’s action was not unauthorized by law, and that Hare has an

adequate remedy at law. Writs of prohibition are extraordinary remedies that are to

be granted only in limited circumstances and with great caution and restraint.

Ruehlman,

,

,

, at ¶ 6. This is not

that rare case where an extraordinary writ should be issued. I would deny Hare’s

motion for summary judgment and grant Judge Russell’s cross-motion for summary

judgment, and I would deny the petition for a writ of prohibition.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

22