State ex rel. Neff v. Corrigan, 95-553

• Court: United States State Supreme Court of Ohio
• Writing for the Court: DOUGLAS; MOYER; COOK; WRIGHT; COOK
• Citation: 75 Ohio St.3d 12,661 N.E.2d 170
• Parties: The STATE ex rel. NEFF, Appellant, v. CORRIGAN, Judge, et al., Appellees.
• Docket Number: No. 95-553,95-553
• Decision Date: 01 March 1996

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75 Ohio St.3d 12 661 N.E.2d 170 The STATE ex rel. NEFF, Appellant,
v.
CORRIGAN, Judge, et al., Appellees. No. 95-553. Supreme Court of Ohio. Submitted Oct. 24, 1995.
Decided March 1, 1996.

Snyder, Neff & Chamberlin and Owen Calvin Neff, pro se.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Gregory B. Rowinski and Carol Shockley, Assistant Prosecuting Attorneys, for appellee Judge Corrigan.

Reminger & Reminger Co., L.P.A., and Clifford C. Masch, Cleveland, for appellee Joan M. Litzow.

[661 N.E.2d 173] DOUGLAS, Justice.

Appellant asserts in his first proposition of law that the court of appeals erred in granting Judge Corrigan's and Litzow's Civ.R. 12(B)(6) motions to dismiss for failure to state a claim upon which relief can be granted and Donahue & Scanlon and Porter's Civ.R. 12(F) motion to strike. In order to dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted, after all factual allegations are presumed true and all reasonable inferences are made in favor of the nonmoving party, it must appear beyond doubt from the complaint that the relator/plaintiff can prove no set of facts warranting relief. State ex rel. Williams Ford Sales, Inc. v. Connor (1995), 72 Ohio St.3d 111, 113, 647 N.E.2d 804, 806.

As to the motion to strike, Civ.R. 12(F) provides that on motion of a party, "the court may order stricken from any pleading any insufficient claim or defense or any redundant, immaterial, impertinent or scandalous matter." The motion to strike attacked the sufficiency of appellant's complaint in its entirety. While an insufficient complaint may be subject to a Civ.R. 12(F) motion to strike, these motions should not be used as a substitute for a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. See, e.g., McCormac, Ohio Civil Rules Practice (2 Ed.1992) 140, Section 6.10. Instead, a Civ.R. 12(B)(6) motion to dismiss is directed to the entire pleading, whereas a Civ.R. 12(F) motion to strike based on insufficiency of a claim should only be used to attack individual claims which are not dispositive of the entire action. See, generally, Browne, Motions to Strike, Ohio Civil Practice Journal (January/February

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1990) 29-30; 1 Klein, Browne & Murtaugh, Baldwin's Ohio Civil Practice (1995) 62, Section T 15.01(A)(1)(b); Staff Note 6 to Civ.R. 12. Nevertheless, a trial court's erroneous use of Civ.R. 12(F) in lieu of Civ.R. 12(B)(6) where the issue is sufficiency of an entire complaint does not constitute reversible error based on a mere misdesignation of the appropriate motion, since the question of sufficiency is adequately raised. See, e.g., State ex rel. Walton v. Hunter (1990), 53 Ohio St.3d 269, 559 N.E.2d 1362 (affirmance of Civ.R. 12[F] motion to strike entire pleading based on its insufficiency). However, the better practice is to use a Civ.R. 12(B)(6) motion, rather than a Civ.R. 12(F) motion, where the sufficiency of the entire complaint is at issue.

Applying the Civ.R. 12(B)(6) standard to the various claims raised in appellant's complaint, we note that appellant placed primary emphasis on extraordinary relief in prohibition and mandamus against Judge Corrigan. Appellant's claim for a writ of prohibition was limited to preventing Judge Corrigan from conducting any further proceedings on attorney fees previously paid to appellant in the Borgh estate. In order to be entitled to a writ of prohibition, appellant has to establish (1) that Judge Corrigan is about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359, 626 N.E.2d 950, 952. Absent a patent and unambiguous lack of jurisdiction, a court having general jurisdiction can determine its own jurisdiction, and a party challenging the court's jurisdiction has an adequate remedy by appeal. State ex rel. Enyart v. O'Neill (1995), 71 Ohio St.3d 655, 656, 646 N.E.2d 1110, 1112.

Appellant contends that Judge Corrigan patently and unambiguously lacked jurisdiction to consider Porter's motion to withdraw consent of the beneficiaries to the Borgh estate to attorney fees paid to appellant. Appellant claims that Judge Corrigan lacked jurisdiction after a prior executor's appeals were dismissed following settlement. Appellant relies on State ex rel. Special Prosecutors v. Judges of Belmont Cty. Court of Common Pleas (1978), 55 Ohio St.2d 94, 9 O.O.3d 88, 378 N.E.2d 162 (writ of prohibition allowed to prevent trial court from proceeding with trial after granting a postsentence motion to withdraw guilty plea after appeal...