Opinion
No. 108903
03-06-2020
COLLEGIATE COMMUNITIES LLC, Relator, v. HONORABLE ASHLEY KILBANE, ET AL., Respondents.
Appearances: Whitmer & Ehrman LLC, Mary K. Whitmer, James W. Ehrman, and Robert M. Stefancin, for relator. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Charles E. Hannan, Assistant Prosecuting Attorney, for respondent, Honorable Ashley Kilbane. The Gertsburg Law Firm, Co., LPA, Alexander E. Gertsburg, Mark M. Turner, and Maximilian A. Julian, for respondent, MRI Software, LLC.
JOURNAL ENTRY AND OPINION JUDGMENT: COMPLAINT DISMISSED Writ of Prohibition
Motion Nos. 531163 and 532102
Order No. 535995
Appearances:
Whitmer & Ehrman LLC, Mary K. Whitmer, James W. Ehrman, and Robert M. Stefancin, for relator. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Charles E. Hannan, Assistant Prosecuting Attorney, for respondent, Honorable Ashley Kilbane. The Gertsburg Law Firm, Co., LPA, Alexander E. Gertsburg, Mark M. Turner, and Maximilian A. Julian, for respondent, MRI Software, LLC. RAYMOND C. HEADEN, J.:
{¶ 1} On August 14, 2019, the relator, Collegiate Communities LLC (hereinafter "Collegiate"), commenced this prohibition action against the respondents, Judge Ashley Kilbane and MRI Software LLC, to prohibit the judge from further adjudicating the underlying case, MRI Software LLC v. Collegiate Communities LLC, Cuyahoga C.P. No. CV-17-877630. Collegiate argues that MRI Software's dismissal without prejudice of its remaining claim and the respondent judge's order recognizing that dismissal terminated the judge's jurisdiction. Collegiate also sought an alternative writ. On September 19, 2019, the respondent judge moved to dismiss, and Collegiate filed its brief in opposition on October 15, 2019. The parties, including MRI Software, also filed briefs on the alternative writ. For the following reasons, this court grants the respondent judge's motion to dismiss and denies the application for an alternative writ and dismisses the application for a writ of prohibition.
{¶ 2} As gleaned from the filings of the instant case and the underlying case, Collegiate and MRI Software entered into a five-year contract for real estate management software and related services. The contract specified how notice of nonrenewal of the contract was to be given. When Collegiate did not give proper nonrenewal notice, MRI Software renewed the contract and billed Collegiate. When Collegiate did not pay, MRI Software commenced the underlying case and asserted claims for breach of contract and quantum meruit.
{¶ 3} On November 18, 2018, the trial court granted MRI Software's motion for summary judgment on the breach of contract claim only. The court awarded $174,058.20 in damages but reserved the issues of attorney fees and costs. The court specified that count two for quantum meruit remained outstanding and did not certify no just reason for delay under Civ.R. 54(B). On May 16, 2019, the respondent judge resolved the outstanding issues on the breach of contract claim by awarding MRI Software attorney fees and costs in the amount of $71,185.68. On May 28, 2019, MRI Software dismissed its second claim for quantum meruit without prejudice, and on June 4, 2019, the respondent judge issued the following journal entry: "Plaintiff having filed a notice of dismissal, case dismissed without prejudice. Court costs assessed to the defendant(s)."
{¶ 4} Collegiate timely appealed on June 25, 2019, Collegiate Communities LLC v. MRI Software LLC, 8th Dist. Cuyahoga No. 108722. However, on July 2, 2019, this court dismissed the appeal as follows:
Sua sponte, appeal is dismissed for lack of a final appealable order. R.C. 2505.02 and Civ.R. 54(B). In Pattison v. W.W. Granger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, 897 N.E.2d 126, the Ohio Supreme Court held that a party may not create a final appealable order by voluntarily dismissing a claim without prejudice. In the present case, appellant dismissed the unjust enrichment/quantum meruit claim without prejudice. Thus, the claim is not resolved for purposes of a final, appealable order. If the parties obtain a final appealable order within 30 days of this judgment entry, the appellant may move to reinstate the appeal.
{¶ 5} On remand the respondent judge pursuant to this court's order stated that MRI Software's dismissal without prejudice was a legal nullity and the second claim remained pending. The judge then ordered MRI Software to file a notice of intent to proceed or the court would dismiss the second claim with prejudice. MRI Software moved the trial court to dismiss the remaining claim pursuant to its equitable powers, as compared to MRI Software just dismissing the claim with prejudice. MRI Software reasoned that if the trial court dismissed the claim, then in the event the court of appeals ruled there was no valid contract, MRI Software could still proceed on a claim of quantum meruit. Collegiate opposed MRI Software's motion on the grounds that the trial court did not have jurisdiction because the case had terminated. Collegiate then filed this prohibition action.
{¶ 6} 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, 43 Ohio St.3d 160, 540 N.E.2d 239 (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, 138 Ohio St. 417, 35 N.E.2d 571 (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., 153 Ohio St. 64, 65, 90 N.E.2d 598 (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, 137 Ohio St. 273, 28 N.E.2d 641 (1940); and Reiss v. Columbus Mun. Court, 76 Ohio Law Abs. 141, 145 N.E.2d 447 (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, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988); and State ex rel. Csank v. Jaffe, 107 Ohio App.3d 387, 668 N.E.2d 996 (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. State ex rel. Adkins v. Shanahan, 132 Ohio St.3d 519, 2012-Ohio-3833, 974 N.E.2d 1196 and State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181. 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, 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997). Moreover, this court has discretion in issuing the writ of prohibition. State ex rel. Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).
{¶ 7} Collegiate argues that MRI Software's dismissal of the second claim without prejudice terminated the case; both claims were resolved. The complete resolution of a case, including a voluntary dismissal of an action under Civ.R. 41(A)(1) without prejudice is effective upon filing and immediately divests the trial court of jurisdiction, except for some ancillary matters, such as contempt and sanctions. State ex rel. Richard v. Cuyahoga Cty. Bd. of Commrs., 100 Ohio App.3d 592, 654 N.E.2d 443 (8th Dist.1995). Indeed, the writ of prohibition will lie against a judge who has dismissed a case without prejudice. State ex rel. Easterday v. Zieba, 58 Ohio St.3d 251, 569 N.E.2d 1028 (1991); State ex rel. Rice v. McGrath, 62 Ohio St.3d 70, 577 N.E.2d 1100 (1991). In State ex rel. Hunt v. Thompson, 63 Ohio St.3d 182, 586 N.E.2d 107 (1992), the Supreme Court of Ohio issued the writ of prohibition when the plaintiffs dismissed their case under Civ.R. 41(A)(1). Thus, Collegiate maintains that when MRI Software dismissed its remaining claim under Civ.R. 41(A)(1), the case was resolved and the respondent judge lost jurisdiction over the case.
{¶ 8} However, in Pattison v. W.W. Granger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, 897 N.E.2d 126, ¶ 1, the Supreme Court of Ohio held "that when a plaintiff has asserted multiple claims against one defendant, and some of those claims have been ruled upon but not converted into a final order through Civ.R. 54(B), the plaintiff may not create a final order by voluntarily dismissing pursuant to Civ.R. 41(A) the remaining claims against the same defendant." The instant case is fully analogous to Pattison v. Granger. In each case, the plaintiff brought two claims. When a motion for summary judgment resolved the first claim, the plaintiff dismissed the second claim without prejudice in an effort to create a final, appealable order; the trial court memorialized the dismissal in its own entry. Thus, this court must address the ramifications of Pattison as they relate to the termination of jurisdiction principle.
{¶ 9} In Pattison, the Supreme Court of Ohio ruled that because Civ.R. 41(A)(1) provides that a plaintiff may dismiss all claims against a defendant, the rule prohibits the dismissal of just some claims, even when the other claims have been adjudicated. This rule has the beneficial effect of banishing the specter of piecemeal litigation. The Ohio Supreme Court also stated that an attempt to dismiss any remaining claims without prejudice is a nullity and that the claims remain unadjudicated. 2008-Ohio-5276, ¶ 19, quoting Kidlow v. Home Town Improvements, 5th Dist. Muskingum No. CT2001-9957, 2002-Ohio-3824, ¶ 11. Black's Law Dictionary (Rev. 4th Ed.), defines "nullity" as an act in a cause that has "absolutely no legal force or effect." It is to be treated as though it had not taken place. The corollary to a dismissal that is a nullity is that the claim is still pending, and the trial court has jurisdiction to resolve the case. The dismissal without prejudice of the claim did not terminate the case. The respondent judge has jurisdiction over the case.
Accordingly, this court grants the judge's motion to dismiss, denies the application for an alternative writ, and dismisses the application for a writ of prohibition. Relator to pay costs. This court directs the clerk of courts to serve all parties notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶ 10} Writ dismissed. /s/_________
RAYMOND C. HEADEN, JUDGE FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR