State ex rel. Fowler v. Smith

Citation68 Ohio St.3d 357,626 N.E.2d 950
Decision Date23 February 1994
Docket NumberNo. 92-2611,92-2611
PartiesThe STATE ex rel. FOWLER, Appellant, v. SMITH, Judge, et al., Appellees.
CourtUnited States State Supreme Court of Ohio

Lester S. Potash, Cleveland, for appellant.

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., and Patrick J. Murphy, Asst. Pros. Atty., for appellees.

PER CURIAM.

Appellant's first proposition of law asserts that the parties to a parentage action may stipulate the dismissal of the litigation pursuant to Civ.R. 41(A)(1)(b), and appellant's second proposition of law asserts that a stipulation for dismissal, once filed, divests the trial court of jurisdiction in the dismissed matter. Both propositions attack the court of appeals' determination that appellant was not entitled to a writ of prohibition against Judge Smith to prevent him from exercising jurisdiction in the underlying parentage action.

To obtain a writ of prohibition, relator must prove (1) that the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying a writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 334, 336-337, 617 N.E.2d 1120, 1123, at fn. 2. When a court patently and unambiguously lacks jurisdiction to consider a matter, a writ of prohibition will issue to prevent assumption of jurisdiction regardless of whether the lower court has ruled on the question of its jurisdiction. State ex rel. Rice v. McGrath (1991), 62 Ohio St.3d 70, 71, 577 N.E.2d 1100, 1101.

Appellant claims that the January 16, 1992 dismissal, which predated the journalization of the adjudication of paternity, was properly filed pursuant to Civ.R. 41(A)(1)(b) and ended Judge Smith's jurisdiction over the case. Civ.R. 41(A) provides:

"(1) By plaintiff; by stipulation. * * * [A]n action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial * * * or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice * * *.

"(2) By order of court. Except as provided in subsection (1) an action shall not be dismissed at the plaintiff's instance except upon order of the court and upon such terms and conditions as the court deems proper."

Appellant initially claims that the stipulated dismissal was pursuant to Civ.R. 41(A)(1)(b), which does not require court approval, although the filed stipulation expressly stated that it was "pursuant to Civil Rule 41(A)(2)," which requires court approval prior to dismissal. Judge Smith noted in his journal entry which "overruled" the stipulated dismissal that it was based on Civ.R. 41(A)(2). Under the invited-error doctrine, a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make. Center Ridge Ganley, Inc. v. Stinn (1987), 31 Ohio St.3d 310, 313, 31 OBR 587, 590, 511 N.E.2d 106, 109. Since any error in the court's not honoring the particular dismissal provision being relied upon by appellant was induced by his own assent to the wording of the stipulation of dismissal, he arguably cannot now claim in an extraordinary writ case that it was actually a Civ.R. 41(A)(1)(b) dismissal.

However, the juvenile court has never entered a final order in the paternity action--apparently the issue of past child support remains pending--and Civ.R. 41(A)(1)(b) allows a dismissal by stipulation at any time before final judgment is rendered. McCormac, Ohio Civil Rules Practice (2 Ed.1992) 354, Section 13.05. Therefore, appellant apprised the trial court of the parties' actual basis for dismissal in a timely fashion, i.e., prior to its entry of final judgment in the paternity action. Under these circumstances, and emphasizing the court of appeals' nonreliance on the invited-error doctrine, we find that appellant timely asserted and did not waive a right to dismiss under Civ.R. 41(A)(1)(b). Civ.R. 1(C)(7) provides that the Rules of Civil Procedure shall not apply to special statutory proceedings to the extent that they would by their nature be clearly inapplicable. Proceedings in the juvenile division, including parentage actions, are special statutory proceedings pursuant to Civ.R. 1(C)(7). See, e.g., DeSalvo v. Sukalski (1983), 8 Ohio App.3d 337, 8 OBR 448, 457 N.E.2d 349; Abbott v. Potter (1992), 78 Ohio App.3d 335, 604 N.E.2d 804; 4 Harper, Anderson's Ohio Civil Practice (1987) 57, Section 147.04(g) (proceedings in the juvenile division are the least amenable to coverage by the Civil Rules). Therefore, the Rules of Civil Procedure apply except to the extent they would be clearly inapplicable.

Parentage actions are "governed by the Rules of Civil Procedure unless a different procedure is specifically provided by" R.C. 3111.01 to 3111.19. R.C. 3111.08(A); Baldwin's Ohio Domestic Relations Law (1992) 55, Section T 3.04(C). R.C. 3111.19 allows parties to a parentage action to enter a compromise agreement, but only under specified circumstances. See Nelson v. Pleasant (1991), 73 Ohio App.3d 479, 483, 597 N.E.2d 1137, 1139, fn. 4. It provided:

"After an action has been brought and before judgment, the alleged father and mother may, subject to approval of the court, compromise the action by an agreement in which the parent and child relationship is not determined but in which a specific economic obligation is undertaken by the alleged parent in favor of the child. In reviewing the obligation undertaken by the alleged parent, the court shall consider the interest of the child, the factors set forth in division (E) of section 3111.13 of the Revised Code [now R.C. 3113.215(B)(3)], and the probability of establishing the existence of a parent and child relationship in a trial." (Emphasis added.) Am.Sub.H.B. No. 245, 139 Ohio Laws, Part I, 2170, 2190.

Appellant relies on James v. Elward (Jan. 22, 1991), Ross App. No. 1630, unreported, 1991 WL 13822, in support of his contention that R.C. 3111.19 does not prevent the parties from stipulating to dismissal of the parentage action pursuant to Civ.R. 41(A)(1)(b). However, the James court failed to consider the interplay between Civ.R. 1(C)(7), R.C. 3111.08(A), Civ.R. 41(A)(1)(b) and R.C. 3111.19. Conversely, the court of...

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