^^UL 3-1 Z014 CLERK OF COURT IN THE SUPREME COURT OF OHIO STATE OF OHIO EX REL. BERNARD NIEDERST, CASE NO

Transcription

1 IN THE SUPREME COURT OF OHIO STATE OF OHIO EX REL. BERNARD NIEDERST, vs. Relator, RICHARD J. McMONAGLE, JUDGE, Respondent. CASE NO Original Action in Prohibition and Procedendo Arising From Cuyahoga County Common Pleas Court Case No. CV RESPONDENT'S MOTION TO DISMISS MICHAEL R. STAVNICKY ( T. CHRISTOPHER O'CONNELL ( Singerman, Mills, Desberg & Kauntz Co. L.P.A Richmond Road, Suite 370 Beachwood, Ohio Tel: ( mstavnickyg,smdklaw. com Counsel fof Relator Bernard Niederst JON J. PINNEY * ( * Counsel of Record JUSTINE LARA KONICKI ( Kohrman Jackson & Krantz PLL One Cleveland Center - 20th Floor 1375 East Ninth Street Cleveland, Ohio Tel: ( /Fax ( TIMOTHY J. McGINTY, Prosecuting AttorYney of Cuyahoga County, Ohio CHARLES E. HANNAN * ( Assistant Prosecuting Attorney * Counsel of Record The Justice Center, Courts Tower, 8th Floor 1200 Ontario Street Cleveland, Ohio Tel: ( /Fax: ( channan rosecutor.cu aho acount,us Counsel for Respondent, Richard J. McMonagle, Judge Counsel foy Proposed Intervenors Niederst Parties ^^UL 3-1 Z014 CLERK OF COURT I^ `f y t.; r; 2, ;s :,3 ^ ' <:"c :i " ^., ir,/y ^ ; ^^'^F f ^ r / ^ %fe'ie^.tr^^: js ^3: ^f

2 IN THE SUPREME COURT OF OHIO STATE OF OHIO EX REL. BERNARD NIEDERST, vs. Relator, RICHARD J. McMONAGLE, JUDGE, Respondent. CASE NO I 119 Original Action in Prohibition and Procedendo Arising From Cuyahoga County Common Pleas Court Case No, CV RESPONDENT'S MOTION TO DISMISS Pursuant to S.Ct.Prac.R (A(1, respondent Richard J. McMonagle, Judge, respectfully moves this Court for an order that dismisses the Complaint for a Writ of Prohibition and Procedendo and this cause. The grounds in support of this motion are that the Complaint does not state any claim for relief in prohibition or procedendo. A memorandum in support of this motion is attached hereto and incorporated herein. Respectfiilly submitted, TIMOTHY J. McGINTY, Prosecuting Attorney of Cuyahoga County, Ohio By: CHARLES E. HANNAN * ( Assistant Prosecuting Attorney * Counsel of Record The Justice Center, Courts Tower, 8th Floor 1200 Ontario Street Cleveland, Ohio 441 l 3 Tel: ( /Fax: ( channan(a?,prosecutor.cuyahogacounty.us Counsel for Respondent Richard J McMonagle, Judge

3 IN THE SUPREME COURT OF OHIO STATE OF OHIO EX REL. BERNARD NIEDERST, vs. Relator, RICHARD J. McMONAGLE, JUDGE, Respondent. CASE NO Original Action in Prohibition and Procedendo Arising From Cuyahoga County Common Pleas Court Case No. CV MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION TO DISMISS STATEMENT OF FACTS AND PROCEEDINGS In this original action in prohibition and procedendo, relator Bernard Niederst ("relator" contends that respondent Richard J. McMonagle, Judge ("respondent" lacks jurisdiction to conduct further judicial proceedings in a cognovit judgment matter even though the Court of Appeals, in reversing an order that vacated the cognovit judgment, directed that the cause was "reversed to the trial court for further proceedings consistent with this opinion." Niederst v. Niederst, 8th Dist. No , 2014-Ohio-2406, at T 5. But even assuming the truth of the factual allegations contained in relator's Coinplaint for a Writ of Prohibition and Procedendo ("Complaint" for purposes of this motion, respondent respectfully submits that the Complaint does not plead facts that would establish any unauthorized exercise of judicial power, let alone power that was exercised where jurisdiction was patently and unambiguously lacking. Nor does the Complaint plead facts establishing that respondent has refused to enter judgment or unnecessarily delayed proceeding to judgnient. For the reasons that follow, respondent respectfully requests that this Court dismiss the Complaint and this cause pursuant to S.Ct.Prac.R (C.

4 The relevant facts as drawn from the Complaint are that relator is the holder of a Cognovit Note ("Note" signed by David Niederst, Michael Niederst, and 25 affiliated entities dated August 31, See Complaint at para. 1.1 The Note, including principal, interest, late fees and other costs, was due and owing without notice and demand upon default of the terms therein. See Complaint at para. 4. The Note provides that, upon an event of default, interest would accrue at the rate of 15% per annum from April 15, See Complaint at para. 5. On January 5, 2013, the Niederst Parties paid relator $250, but did not pay the interest due that amount.ed to approximately $7, See Complaint at para. 6,' According to relator, the Niederst Parties' failure to pay the interest on January 5, 2013 was a default under the Note that entitled relator to obtain judgment without notice or demand for the full remaining balance, plus 15% interest, costs and attorneys' fees. See Complaint at para. 6. Relator alleges that the Niederst Parties committed a series of additional defaults that rendered the Note immediately due and owing without notice or demand. Id. On October 2, 2013, relator filed Cuyahoga County Common Pleas Court Case No. CV , which consisted of a Cognovit Complaint and Answer. See Complaint at para. 7 and Exhibit 3 (Certified copy of the Docket for Case No. CV The case was randomly assigned to the Honorable Timothy McCormick but, because the case was designated for placement on the court's commercial docket, the case was reassigned to respondent Judge 1 On July 29, 2014, twenty-five (25 parties identifying tliemselves collectively as the "Niederst Parties" moved to intervene in this original action. Those prospective intervenors will likewise be referred to herein as the "Niederst Parties." 2 Although it may be outside the scope of this motion, the Niederst Parties say that there was confusion over the amount and due date of the interest payable and that they in fact paid the interest totaling $6, less than one (1 month later. See Motion to Intervene as Respondent at p. 3; Answer at para. 6. 2

5 McMonagle.3 As had been the practice in the Cuyahoga County Court of Common Pleas to expedite the disposition of such matters, the pleadings and proposed judgment entry were delivered directly to Administrative Judge the Honorable Nancy A. Fuerst, who issued a judgment entry that same day in the amount of $750,000.00, plus interest at the rate of 15% per annum from April 15, 2011 and attorneys' fees and costs. See Complaint at paras. 7 and 8 and Exhibit 4. On October 9, 2013, respondent Judge McMonagle vacated the cognovit judgment rendered by Judge Fuerst. See Complaint at paras. 9, 10. The Niederst Parties had not filed a motion for relief from judgment. See Complaint at paras. 9, 10,4 On November 8, 2013, relator filed an accelerated appeal to the Eighth District Court of Appeals, in the appeal docketed as Case No. CA See Complaint at para. 11. On June 5, 2014, the Court of Appeals issued its decision in Niederst v. Niederst, 8th Dist. No , 2014-Ohio See Complaint at para. 12 and Exhibit 6. Noting that its disposition of the appeal was "dictated by the sparse record on appeal," the Court of Appeals held that the trial court erred in vacating the cognovit judgment because no written motion for relief from judgment had been filed in conformity with Ohio Civil Rule 60(B. Id. at 3-4 The Court of Appeals concluded: "This cause is reversed to the trial court for further proceedings consistent with this opinion." Id. at 5. For his part, relator insists that the Court of Appeals reversed the trial court's decision but "did not remand to the trial court." See Complaint at para. 13. See also Complaint at para. 14. ' Judge McMonagle had presided over previous litigation between these same parties, in the case docketed as Cuyahoga County Common Pleas Court Case No. CV Although relator alleges that respondent vacated the judgment "without any motion, evidence, testimony or a hearing," see Complaint at para. 10, the judgment entry itself stated that as a result of the hearing held that day, the cognovit judgment was vacated and relator's motion to reconsider was scheduled for hearing on October 18, 2013.

6 While it is true that the Court of Appeals did not expressly state that the case was being remanded to the trial court, relator does not acknowledge, address, or even attempt to explain the significance of the appellate court's express directive at 5 that the cause was being "reversed to the trial court for further proceedings consistent with this opinion." This will be addressed more fully within the body of the argument that follows. At any rate, relator complains that following the appellate court's decision, respondent has continued to exercise jurisdiction over the matter and the Court of Appeal's judgment. See Complaint at para. 14. On June 12, 2014, the Niederst Parties filed in the trial court a Civil Rule 60(B motion for relief from judgment. See Complaint at para. 23 and Exhibit 3. On June 18, 2014, the Niederst Parties filed in the trial court a motion to stay execution on the cognovit judgment. See Complaint at para. 15. On June 24, 2014, respondent granted the motion to stay execution on the judgment. See Complaint at paras That same day, relator filed a motion to transfer the case to Judge Fuerst's docket.5 R.espondent scheduled a hearing for July 7, See Complaint at para. 23. Before that hearing could occur, relator filed this original action. in prohibition and procedendo in the Supreme Court of Ohio on July 3, The Court should be aware that on July 15, 2014, the Niederst Parties filed a notice of appeal in the Suprerne Court of Ohio from the Court of Appeals' June 5, 2014 decision in Niederst v. Niederst, 8th Dist. No , 2014-Ohio The Niederst Parties' jurisdictional appeal is docketed here as Ohio Supreme Court Case N Judge Fuerst is no longer the Administrative Judge. 4

7 ARGUMENT AND LAW Relator contends that he is entitled to extraordinary writs of prohibition and procedendo based on the Court of Appeals' June 5, 2014 decision reversing the trial court's judgment that vacated the cognovit judgment where no written Civil Rule 60(B motion for relief from judgment had been filed. But contrary to relator's contention, the Court of Appeals' determination of the appeal did not terminate the case or operate to preclude the trial court from conducting further proceedings. Indeed, the Court of Appeals reversed the case "to the trial court for further proceedings consistent with this opinion." Because the Court of Appeals' decision did not preclude respondent from exercising judicial power but rather commanded him to do so, there can be no proper grounds to issue writs of prohibition or procedendo in this case. Respondent accordingly urges this Court to dismiss the Complaint and this cause. 1. Relator's Complaint fails to state grounds for extraordinary relief in prohibition. Under Ohio law, an action in prohibition tests only the jurisdiction of the lower court. See State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 2001-Ohio-15, 740 N.E.2d 265; State ex rel. Staton v. Common Pleas Court, 5 Ohio St.2d 17, 21, 213 N.E.2d 164 (1965. To be entitled to the writ, the relator must show that (1 the respondent Court was exercising or about to exercise judicial or quasi-judicial power; (2 the exercise of that power was unauthorized by law; and (3 denial of the writ would cause injury for which no other adequate remedy exists in the ordinary course of the law. See State ex rel. Westlake v. Corrigan, 112 Ohio St.3d 463, Ohio-375, 860 N.E.2d 1017, at 12. "In the absence of a patent and unainbiguous lack ofjurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal." Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-

8 Ohio-1195, 843 N.E.2d 1202, at 12. "Prohibition will not issue as a substitute for appeal to review mere errors in judgment." State e_x rel. 1Valls v. Russo, 96 Ohio St.3d 410, 2002-Ohio- 4907, 775 N.E.2d 522 at T 28. Thus "[a]ppeal, not prohibition, is the remedy for the correction of errors or irregularities of a court having proper jurisdiction." Smith v. Warren, 89 Ohio St.3d 467, 468, 732 N.E.2d 992 (2000. In reviewing this Complaint, the Court need not determine the merits of relator's jurisdictional contentions, for its "duty in prohibition cases is limited to determining whether jurisdiction is patently and unambiguously lacking." State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N,E.2d 224, at 12. See also State ex rel. Shimko v. MciVonagle, 92 Ohio St.3d 426, 431, 751 N.E.2d 472 (2001. In this case, relator cannot dispute that the common pleas court possesses the basic statutory jurisdiction to hear an action on a cognovit note. Under R.C , Ohio common pleas courts have original jurisdiction in all cases in which the sum or matter in dispute exceeds the exclusive jurisdiction of county courts. In Schztcker v. Metcalf, 22 Ohio St.3d 33, 488 N.E.2d 210 (1986, the court observed: "The court of common pleas is a court of general jurisdiction. It embraces all matters at law and in equity that are not denied to it." Id. at 34, 488 N.E.2d 210. Relator here assuredly cannot say that the common pleas court lacks authority to hear relator's action on the cognovit note. Nor can relator say that the common pleas court lacks authority to hear a Civil Rule 60(B motion for relief from a cognovit judgment. See ABL Wholesale Distribs., Inc. v. Gas, 8th Dist. No , 2014-Ohio-2268, at T 9 ("Cognovit judgments are subject to Civ.R. 60(B relief from judgment, however." Relator nevertheless insists that because the Court of Appeals reversed the trial court's judgment but did not expressly remand the case back to the trial court, the Court of Appeals' 6

9 decision effectively terminated the case and precludes respondent from exercising further judicial power in this matter. For the reasons that follow, relator's contention is not well taken. Rute 12 of the Ohio Rules of Appellate Procedure addresses the determination of appeals as rendered by Ohio's courts of appeals. As is most pertinent to this case, Appellate Rule 12(B reads as follows in relevant part: When the court of appeals detertnines that the trial court committed error prejudicial to the appellant and that the appellant is entitled to have judgment or final order rendered in his favor as a matter of law, the court of appeals shall reverse the judgment or final order of the trial court and render the judgment or final order that the trial court should have rendered, or remand the cause to the court with instructions to render such judgment or final order. *** App.R. 12(B. Appellate Rule 12(D reads as follows: App.R. 12(D. In all other cases where the court of appeals finds error prejudicial to the appellant, the judgment or final order of the trial court shall be reversed and the cause shall be remanded to the trial court for further proceedings. As it relates to the matter at hand, the Court of Appeals, in determining relator's appeal in Case No. CA , found that the trial court committed error prejudicial to relator by vacating the cognovit judgment with no written Civil Rule 60(B motion for relief from judgment having been filed. Contrary to relator's contention, however, the Court of Appeals did not determine that relator was thereby entitled to have judgment or final order rendered in his favor as a matter of law pursuant to App. R. 12(B. Had the Court of Appeals determined that relator was entitled to have judgment rendered in his favor as a matter of law, the Court of Appeals could have reversed the trial court's judgment and rendered the judgment or final order that the trial court should have rendered, as is expressly authorized by App.R 12(B. The Court of Appeals did not do that. Alternatively, the Court of Appeals could have reversed the trial court's judgment and remanded the case to the 7

10 court with instructions to render such judgment or final order that should have been rendered, as is likewise expressly authorized by App.R. 12(B. The Court of Appeals did not do that, either. Instead, the Court of Appeals' opinion recited that "[t]his cause is reversed to the trial court for further proceedings consistent with this opinion." While this disposition did not expressly remand the case to the trial court, the finding of prejudicial error and direction for the trial court to conduct "further proceedings consistent with this opinion" is itself consistent with the remand disposition authorized by App.R. 12(D. The fact that the appellate court's opinion. did not expressly remand the case for further proceedings is not dispositive. In O'Neill v. lvayberry, 6th Dist. No. WD , 2009-Ohio- 1123, the relator sought a writ of prohibition against the trial court judge because a prior appellate court decision did not contain language expressly remanding the case to the trial court. Rejecting that contention, the Court of Appeals stated: [T]he absence of language specifically remanding the case to the trial court was a technical mistake and indicated nothing with respect to the trial court's jurisdiction. App.R. 12 *** provides in "in all other cases," other than those reversed as against the manifest weight of the evidence, where prejudicial error is found, "the judgment or final order of the trial court shall be reversed and the cause shall be remanded to the trial court for further proceedings." App.R. 12(D. The judgment, which constituted the mandate pursuant to App.R. 27, stated: "Judginent affirtned in part and reversed in part." Pursuant to App.R. 12(D, then, the matter should have beeii specifically remanded. (Emphasis sic. Id. at 18. The court there issued an order of errata that corrected the prior appellate decision. Id. at 19. It is axiomatic that upon remand from an appellate court, the lower court is required to proceed from the point at which the error occurred. See State ex rel. Douglas v. Burlew, 106 Ohio St.3d 180, 2005-Ohio-4382, 833 N.E.2d 293, 11; State ex rel. Stevenson v. Murray, 69 Ohio St.2d 112, 113, 431 N.E.2d 324 (1982. In this case, the Court of Appeals' opinion found

11 that it was error for the trial court to vacate the cognovit judgment because no written Civil Rule 60(B motion for relief from judgment had been filed in the trial court. Consequently, the respondent here resumed proceedings from the point at which the error occur-red on October 9, naanely, the cognovit judgrnent rendered previously on October 2, Following the Court of Appeals' ruling, relator acknowledges that the Niederst parties filed a motion for relief from judgment on June 12, See Complaint at para. 23 and Exhibit 3. Consequently, respondent is not exercising judicial power that is not authorized by law - indeed, he is exercising judicial power that the Court of Appeals effectively ordered him to exercise. In short, the trial court is not exercising judicial power here that is not unauthorized by law. Moreover, relator's Complaint does not plead any facts that suggesting that respondent patently and unambiguously lacks jurisdiction. As a court of general jurisdiction, respondent can determine his own jurisdiction to proceed. Appeal is a plain and adequate remedy available in the ordinary course of the law to address any claimed lack of jurisdiction. See Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, at 12. Prohibition is an extraordinary remedy that requires caution and restraint, a clear and undoubted right to relief, and the absence of any adequate legal remedies. See State ex rel. Henry v. Britt, 67 Ohio St.2d 71, 73, 424 N.E.2d 297 (1981; State ex Nel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941, syllabus at paragraph three; State ex rel. 1b?erion v. Court of Common Pleas of Tuscarawas Cty., 137 Ohio St. 273, 277, 28 N.E.2d 641 (1940. In this case, relator's Complaint fails to plead any facts establishing that the respondent patently and unambiguously lacks jurisdiction to conduct proceedings in this cognovit judgment controversy. The trial court has the basic statutory jurisdiction to hear such actions, and nothing in relator's Complaint pleads any facts that would lead to a different conclusion. 9

12 Relator's Complaint accordingly fails to state any claim for extraordinary relief in prohibition and should be dismissed. II. Relator's Complaint does not state any claim for extraordinary relief in proceclendo Procedendo is an order from a court of superior jurisdiction directing a lower court to proceed to judgment. State ex rel. Miley v. Parrott, 77 Ohio St.3d 64, 67, 671 N.E.2d 24 ( 1996; State ex rel. Sherrills v. Cz.tyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d 899 (1995. See also State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 106, 637 N.E.2d 319 (1994 ("A writ of procedendo is an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment, but one that never attempts to control how the inferior court rules." (internal. punctuation omitted. For a writ of procedendo to issue, the relator must show a clear legal right to require the court to proceed, a clear legal duty on the part of the court to proceed, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Williams v. Hunter, 138 Ohio St.3d 511, 2014-Ohio-1022, 8 N.E.3d 918, 8; State ex rel. Brown v. Logan, , Ohio-769, 6 N.E.3d 42, 13. A writ of procedendo is proper when. a court has refused to enter judgment or has unnecessarily delayed proceeding to judgment. State ex i el. Williams v. Hisnter, 138 Ohio St.3d 511, 2014-Ohio-1022, 8 N.E.3d 918, 8; State ex rel. Brown v. Logan, , 2014-Ohio-769, 6 N.E.3d 42, 13. In this case, relator's Complaint does not plead any facts that could remotely state a claim for relief in procedendo. There are no facts suggesting that respondent has refused to enter judgment or has unnecessarily delayed proceeding to judgment. Conducting judicial proceedings on a pending motion for relief from judgment under Civil Rule 60(B can hardly provide grounds 10

13 for extraordinary relief in procedendo. Indeed, to the extent relator seeks a writ of prohibition to prevent respondent from proceeding further, his action in prohibition is at war with his action in procedendo. Because relator's Complaint fails to plead any facts that would state a cognizable claim for extraordinary relief in procedendo, it should be dismissed. CONCLUSION Because relator's Complaint fails to state claims for relief in prohibition and/or procedendo, Respondent the Honorable Richard J. McMonagle respectfully requests that this Court dismiss the Complaint and this cause pursuant to S. Ct. Prac. R (C. Respectfully submitted, TIMOTHY J. McGINTY, Prosecuting Attorney of Cuyahoga County, Ohio By: ^ CHARLES E. HANNAN * ( Assistant Prosecuting Attorney "`Counse,l of RecoNd The Justice Center, Courts Tower, 8th Floor 1200 Ontario Street Cleveland, Ohio Tel: ( !Fax: ( channan.(^a rosecutor.cuyaho acount-zus Counsel for Respondent Richard J. McMonagle, Judge 11

14 PROOF OF SERVICE A true copy of the foregoing Respondent's Motion to Dismiss was served this 30 th day of July 2014 by regular U.S. Mail, postage prepaid, upon: Michael R. Stavnicky T. Christopher O'Connell Singerman, Mills, Desberg & Kauntz Co., L.P.A Richmond Road, Suite 370 Beachwood, Ohio44122 Counsel for Relator Bernard Niederst Jon J. Pinney Justine Lara Konicki Kohrman Jackson & Krantz PLL One Cleveland Center - 20th Floor 1375 East Ninth Street Cleveland, Ohio Counsel for Prospective Intervenors Niederst Parties v CHARLES E. HANNAN * Assistant Prosecuting Attorney * Counsel of Record 12