State ex rel. Capital One Bank NA v. Karner
| Decision Date | 13 December 2011 |
| Docket Number | No. 96739,96739 |
| Parties | STATE OF OHIO, EX REL. CAPITAL ONE BANK (USA) N.A. RELATOR v. JUDGE CHERYL S. KARNER, ET AL. RESPONDENT |
| Court | Ohio Court of Appeals |
Writ of Mandamus and of Prohibition
ATTORNEYS FOR RELATOR
Kimberly Y. Smith Rivera
James S. Wertheim
McGlinchey Stafford, PLLC
ATTORNEY FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: Charles E. Hannan, Jr.
Assistant County Prosecutor
{¶ 1} On April 29, 2011, the relator, Capital One Bank (USA) N.A. ("Capital One") commenced this prohibition and mandamus action against the respondent, Judge Cheryl Karner. Capital One is asking this court to prevent the judge from taking any action against Capital One for not responding to a subpoena and an order to compel and to have her vacate in its entirety her order granting the motion to compel in the underlying case, Feinerer v. Feinerer, Cuyahoga County Common Pleas Court, Domestic Relations Division Case No. DR-10-332088. Capital One argues that the respondent judge lacks subject matter jurisdiction over it, because as a non-party, non-domiciliary, the bank isbeyond the respondent's subpoena power and service of the subpoena was improper.
{¶ 2} Capital One also sought an alternative writ, which this court granted, prohibiting the respondent from going forward with a hearing for sanctions and attorney's fees until this court resolved this writ action. The court also ordered a briefing schedule. Thus, on May 20, 2011, the respondent moved to dismiss, and on June 10, 2011, Capital One filed its brief in opposition. For the following reasons, this court grants the respondent's motion to dismiss.
{¶ 3} Capital One is a national bank, organized under the National Bank Act, Section 1 et seq., Title 12, U.S. Code. It is located in Virginia, and does not have an Ohio statutory agent.
{¶ 4} In July 2010, in the underlying divorce case, the wife's attorney sought to issue a subpoena on Capital One to obtain information and various records about the husband, such as credit applications, credit reports, records of accounts, funds on deposit, and amount of income. The lawyer sent a subpoena to Capital One via CSC Lawyers Incorporation Service (hereinafter "CSC") and another subpoena to Capital One Services, Inc., also via CSC. CSC sent the lawyer a notice of rejection of service concerning the Capital One subpoena because there was no entity with Capital One's name on file with the Ohio Secretary of State. Capital One Services, Inc. no longer existed, so CSC served that subpoena upon its successor, Capital One Services, LLC, which is related to Capital One, but is a different entity. Capital One Services, LLC was not in possession of the requested records and information, so it forwarded a courtesy copy of the subpoena toCapital One.
{¶ 5} On August 6, 2010, Capital One sent the attorney a letter stating that it was "in receipt of the subpoena" directed to Capital One Services. (Exhibit F to the complaint.) The letter stated that Capital One could not respond to the subpoena because it was the wrong entity; the subpoena was not properly served; the state court exceeded its jurisdiction in trying to serve a subpoena outside of its territory; the attorney did not use the proper means (the Uniform Foreign Depositions Act or R.C. 2319.09) to issue a subpoena in Virginia; and Capital One, under federal law, could only release the requested personal information pursuant to a properly issued and served subpoena. Capital One did not provide any of the requested records or information.
{¶ 6} On October 8, 2010, the wife's attorney filed a motion to compel in the underlying case in which he stated that he had served Capital One and Capital One Services via CSC, their statutory agent; that CSC had sent a rejection of service; and that Capital One acknowledged receipt of a subpoena and tried to explain why it could not comply. The attorney asserted that Capital One was blatantly ignoring its responsibilities and asked the court to issue an order compelling Capital One to release the records and to pay the wife's attorney fees.
{¶ 7} On October 13, 2010, the respondent judge granted the motion to compel and ordered Capital One to respond to the subpoena by October 26, 2010. The respondent passed the issue of sanctions and attorney's fees to the final hearing.
{¶ 8} Capital One maintains that it was not served with this order and did notlearn of it until November 9, 2010. On November 17, 2010, Capital One made a limited appearance to contest jurisdiction over it and to file a motion to vacate the October 13, 2010 order.
{¶ 9} Subsequently, the husband in the underlying action issued a release of his personal information, and Capital One fully provided all of the requested records and information. On April 1, 2011, the respondent judge issued a journal entry vacating the October 13, 2010 order and noted that Capital One produced all the requested documents and would continue to produce requested records if the parties provide the necessary releases. The respondent further ruled that attorney's fees and sanctions would be decided at the final hearing. Capital One then commenced this writ action in prohibition to prevent such a hearing and in mandamus to vacate the order concerning sanctions and attorney's fees.
{¶ 10} 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), 43 Ohio St.3d 160, 540 N.E.2d 239. Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause which it is attempting to adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe (1941), 138 Ohio St. 417, 35 N.E.2d 571, 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 withinits jurisdiction." State ex rel. Sparto v. Juvenile Court of Darke County (1950), 153 Ohio St. 64, 65, 90 N.E.2d 598. 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), 137 Ohio St. 273, 28 N.E.2d 273, and Reiss v. Columbus Municipal Court (App. 1956), 76 Ohio Law Abs. 141, 145 N.E.2d 447.
{¶ 11} 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), 39 Ohio St.3d 174, 529 N.E.2d 1245 and State ex rel. Csank v. Jaffe (1995), 107 Ohio App.3d 387, 668 N.E.2d 996. But 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 appeal from the court's holding that it has jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of Edn. v. Portage County Court of Common Pleas (1997), 78 Ohio St.3d 489, 678 N.E.2d 1365 and State ex rel. Bradford v. Trumbull Cty. Court, 64 Ohio St.3d 502, 1992-Ohio-116, 597 N.E.2d 116. Moreover, the court has discretion in issuing the writ of prohibition. State ex rel. Gilligan v. Hoddinott (1973), 36 Ohio St.2d 127, 304 N.E.2d 382.
{¶ 12} Similarly, the requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief and (3) there must be no adequate remedy atlaw. Additionally, although mandamus may be used to compel a court to exercise judgment or to discharge a function, it may not control judicial discretion, even if that discretion is grossly abused. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Furthermore, mandamus is not a substitute for appeal. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and State ex rel. Pressley v. Indus. Comm. of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, paragraph three of the syllabus. Thus, mandamus does not lie to correct errors and procedural irregularities in the course of a case. State ex rel. Jerninghan v. Gaughan (Sept. 26, 1994), Cuyahoga App. No. 67787. Moreover, mandamus is an extraordinary remedy which is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 Ohio App.3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio Law Abs. 308.
{¶ 13} If a court is without jurisdiction to render a judgment, mandamus will lie to compel the court to vacate its judgment and findings. State ex rel. Ballard v. O'Donnell (1990), 50 Ohio St.3d 182, 553 N.E.2d 650. This is the principle on which Capital One premises its claim for mandamus.
{¶ 14} Like prohibition, the court has discretion in issuing mandamus. In State exrel. Pressley v. Indus. Comm. of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, paragraph seven of the syllabus, the Supreme Court of Ohio ruled that "in considering the allowance or denial of the writ of mandamus on the merits, [the court] will exercise sound, legal and judicial discretion based upon all the facts and circumstances in the individual case and...
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