State ex rel. Suburban Construction Co. v. Skok

• Citation: 85 Ohio St.3d 645,710 N.E.2d 710
• Decision Date: 16 June 1999
• Docket Number: No. 98-2704,98-2704
• Parties: The STATE ex rel. SUBURBAN CONSTRUCTION COMPANY., Appellant, v. SKOK, Judge, Appellee.
• Court: United States State Supreme Court of Ohio

Page 645

85 Ohio St.3d 645

710 N.E.2d 710

The STATE ex rel. SUBURBAN CONSTRUCTION COMPANY., Appellant, v. SKOK, Judge, Appellee.

No. 98-2704.

Supreme Court of Ohio.

Submitted May 18, 1999.

Decided June 16, 1999.

In September 1997, the city of Mentor, Ohio, filed two appropriation petitions in the Lake County Court of Common Pleas, Probate Division. Mentor sought to appropriate parcels located in the city that were owned by appellant, Suburban Construction Co. ("Suburban"). The dockets of the two cases noted that summonses on the petitions were issued in December 1997.

In February 1998, Mentor moved for default judgment against Suburban, claiming that Suburban had been served with copies of the petitions by ordinary mail. Suburban opposed the city's motions for default judgment by submitting an affidavit of its counsel, Albert C. Nozik. In his affidavit, Nozik stated that the December 1997 summonses were sent to his office address, but that he had closed his office for that entire month, with all mail being forwarded to his Florida address. Nozik claimed that neither he nor his co-counsel received any summons in the two appropriation cases. Appellee, Judge Fred V. Skok, granted the city's motions for default judgment on May 13, 1998 and scheduled the cases for trial on valuation on May 26, 1998. According to Suburban, Judge Skok's magistrate informed it that the judge intended to direct a verdict regarding valuation of the property.

In May 1998, Suburban filed a complaint in the Court of Appeals for Lake County for a writ of prohibition to prevent Judge Skok from further proceeding in the appropriation cases. Suburban claimed that Judge Skok lacked jurisdiction over the appropriation cases because (1) Suburban was not properly served with the appropriation petitions, (2) Judge Skok intended to direct a verdict on the value of the properties to be appropriated by the city, and (3) Judge Skok did not give Suburban adequate notice of the trial date in the appropriation cases. After the court of appeals issued an alternative writ, Judge Skok filed a Civ.R. 12(B)(6) motion to dismiss Suburban's complaint for failure to state a claim upon which relief can be granted. The court of appeals granted Judge Skok's motion and dismissed the complaint.

This cause is now before the court upon an appeal as of right.

Grendell & Targove, L.L.P., and Timothy J. Grendell, Independence; Albert C. Nozik, Mentor, for appellant.

Charles E. Coulson, Lake County Prosecuting Attorney, and William L. Sheroke, Assistant Prosecuting Attorney, for appellee.

PER CURIAM.

Suburban asserts in its propositions of law that the court of appeals erred in dismissing its prohibition complaint. The court of appeals' dismissal of Suburban's complaint for failure to state a claim upon which relief can be granted is appropriate if, after all factual allegations of the complaint are presumed true and all reasonable inferences are made in Suburban's favor, it appears beyond doubt that Suburban can prove no set of facts warranting relief. Clark v. Connor (1998), 82 Ohio St.3d 309, 311, 695 N.E.2d 751, 754.

In order to be entitled to the requested extraordinary relief in prohibition, Suburban must establish that (1) Judge Skok is about to exercise judicial power, (2) Judge Skok's exercise of judicial power is legally unauthorized, and (3) the denial of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335, 336, 686 N.E.2d 267, 268. Here, Suburban sufficiently alleged that Judge Skok is exercising judicial power in the appropriation cases. At issue is whether the judge's exercise of this power is unauthorized and causes injury to Suburban for which it has no other adequate legal remedy.

Regarding these remaining requirements for a writ of prohibition, 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 the court's jurisdiction has an adequate legal remedy by appeal. State ex rel. Red Head Brass, Inc. v. Holmes Cty. Court of Common Pleas (1997), 80 Ohio St.3d 149, 152, 684 N.E.2d 1234, 1237.

Suburban initially claims that Judge Skok patently and unambiguously lacks personal jurisdiction to proceed in the appropriation cases because service was never perfected on it in these cases.

Suburban's claim is not cognizable in prohibition. If contested allegations of defective service of process are not premised upon a complete failure to comply with the minimum-contacts requirement of constitutional due process, prohibition does not lie. See State ex rel. Gelman v. Lorain Cty. Court of Common Pleas (1961), 172 Ohio St. 73, 74, 15 O.O.2d 132, 133, 173 N.E.2d 344, 345; State ex rel. Ruessman v. Flanagan (1992), 65 Ohio St.3d 464, 467-468, 605 N.E.2d 31, 35.

In Gelman, we denied a writ of prohibition where relator's complaint alleged that service was defective and that the trial court erred in overruling a motion to quash service, and the trial court claimed in its answer that service had been properly perfected.

We similarly denied a writ of prohibition in Ruessman, where the relator contended "that respondents lack personal jurisdiction because [relator] has not been served with a copy of the petition below." 65 Ohio St.3d at 467, 605 N.E.2d at 35. We stated that "a patent and unambiguous lack of jurisdiction is not present in the case before us. Here, respondents assert that...