State of Ohio, ex rel Left Fork Mining Co. v. Honorable Nancy Fuerst, Judge, Court of Common Pleas and Court of Common Pleas of Cuyahoga County, Ohio, Case

• Decision Date: 21 December 1999
• Docket Number: 77405,99-LW-6085
• Parties: STATE OF OHIO, ex rel LEFT FORK MINING COMPANY, et al, Relators v. HONORABLE NANCY FUERST, JUDGE, COURT OF COMMON PLEAS and COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, OHIO, Respondents CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, ex rel LEFT FORK MINING COMPANY, et al, Relators v. HONORABLE NANCY FUERST, JUDGE, COURT OF COMMON PLEAS

and

No. 77405.

99-LW-6085 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

December 21, 1999

WRIT OF PROHIBITION (Motion No. 13009).

For relator Left Fork Mining Company: HILARY S. TAYLOR, Attorney at Law, Weston Hurd Fallon Paisley & Howley, L.L.P., 2500 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113-2241.

For plaintiff Jeffrey Mining Products, L.P.: MICHAEL H. DIAMANT STUART L. LARSEN, HOWARD G. STRAIN, Attorneys at Law, Kahn Kleinman, Yanowitz & Arnson, L.P.A., 2600 Tower Erieview Cleveland, Ohio 44114-1824.

For third-party defendants Global Industrial Technologies, Harbison-Walker Refractories and TMPSC, Inc.: BRENT C. TAGGERT, Attorney at Law, Vorys, Sater, Seymour & Pease, 52 East Gay Street

Columbus, Ohio 43216-1008; W. BRECK WEIGEL, Attorney at Law, Vorys, Sater, Seymour & Pease, LLP, Atrium Two, Suite 2100, 221 East Fourth Street, Post Office Box 0236, Cincinnati, Ohio 34201-0236.

For respondent Honorable Nancy Fuerst and Court of Common Pleas of Cuyahoga County: WILLIAM D. MASON, Cuyahoga County Prosecutor, ____________, Assistant, Justice Center, Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.

OPINION

KENNETH A. ROCCO, P.J.

On December 20, 1999, the relator, Left Fork Mining Co. commenced this prohibition action against the respondents, Judge Nancy Fuerst and the Court of Common Pleas of Cuyahoga County, to prohibit the respondents from enforcing an order issued by the judge that prohibited the parties in the underlying case, Jeffrey Mining Products, L.P. v. Left Fork Mining Company, Cuyahoga County Common Pleas Court Case No. 336559, from filing any motions without the prior oral permission of the judge. Left Fork Mining also applied for an alternative writ and moved to advance the case on the docket. For the following reasons, this court, sua sponte, denies the applications for a writ of prohibition and an alternative writ and denies the motion to advance as moot.

In its pleadings and attachments, Left Fork Mining alleges the following: In June 1997, Jeffrey Mining Products commenced the underlying case by suing Left Fork Mining, which filed counterclaims, cross-claims and third-party complaints against various parties. Three of these parties Left Fork mining refers to as the "Global Group." Apparently, Jeffrey mining was a subsidiary of or in the Global Group.^[1] Throughout discovery, Jeffrey Mining and the Global Group insisted that various records did not exist. Left Fork Mining submits that these parties concealed the records in bad faith. During 1999, the formal period for discovery ended. In August 1999, Jeffrey Mining and the Global Group moved for summary judgment. In response, Left Fork Mining argued, inter alia, the spoliation of evidence and for certain presumptions resulting from the dearth of discovery. In early November 1999, in response to these arguments, Jeffery Mining and the Global Group revealed, for the first time, the existence of the long-sought records. Further inquiry revealed that there are over 4,000 boxes of records that Left Fork Mining never had the opportunity to inspect. Initial review of the records revealed evidence that Jeffrey Mining and the Global Group knew that the 102 systems were defective; one system was so poorly designed that it would destroy the accompanying machinery and was impossible to maintain. On November 22, 1999, Left Fork Mining moved for a status conference. The trial judge held a tele-phone conference on November 23, 1999, and granted the parties leave to file an additional brief and response to that brief. On November 29, 1999, the trial judge ordered all parties to obtain prior oral permission to submit any additional motions; failure to obey would result in sanctions. The trial judge had set the final pretrial for 11:00 a.m. on December 21, 1999, and trial for January 2000.

On December 17, 1999, Left Fork Mining hand-delivered three motions to the trial judge's law clerk to seek oral permission for their filing. These motions were (1) motion to dismiss the claims of Jeffrey Mining and for default judgment against the Global Group for abuse of discovery, (2) motion for leave to file a motion for continuance under Civ.R. 56(F), and (3) motion for leave to file instanter the motion for dismissal and default judgment. At approximately 3:30 p.m. on December 17, the law clerk informed Left Fork Mining telephonically that the trial judge had denied permission to file those motions. Left Fork Mining then filed this prohibition action.

Left Fork Mining argues the trial judge usurped her judicial power because the November 29, 1999 order violates various constitutional provisions. The order precludes the parties from presenting the trial court with the relevant facts and further precludes the parties from even making a record. Aside from the authorities stating the general principles of prohibition, Left Fork Mining relies exclusively upon State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, for the proposition that a court may use the writ of prohibition to counter an unconstitutional usurpation of judicial power.

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. Largrent v. Fisher (1989), 43 Ohio St.3d 160, 540 N.E.2d 239. Furthermore, if a petitioner had an adequate remedy, relief in prohibition is precluded, even if the remedy were not used. State ex rel. Lesher v. Kainrad (1981), 65 Ohio St.2d 68, 417 N.E.2d 1382, certiorari denied (1981), 454 U.S. 845; Cf. State ex rel. Sibarco Corp. v. City of Berea (1966) 7 Ohio St.2d 85, 218 N.E.2d 428, certiorari denied (1967), 386 U.S. 957. Prohibition will not lie unless it clearly appears that the court has no jurisdiction over the cause that 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 within its 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; Reiss v. Columbus Municipal Court (App. 1956), 76 Ohio Law Abs. 141, 145 N.E.2d 447. 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. TilFork 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. 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. A party ...