[Cite as State ex rel. Kerr v. Pollex, 2019-Ohio-1725.]




                              IN THE COURT OF APPEALS OF OHIO
                                  SIXTH APPELLATE DISTRICT
                                        WOOD COUNTY


State of Ohio, ex rel. Jeremy Kerr                        Court of Appeals No. WD-19-005

        Relator

v.

Judge Robert Pollex (retired)
and Judge Matthew Reger                                   DECISION AND JUDGMENT

        Respondents                                       Decided: May 3, 2019

                                                    *****

        Jeremy Kerr, pro se.

                                                    *****

        OSOWIK, J.

        {¶ 1} In this original action, relator Jeremy Kerr has filed a writ of prohibition to

vacate his order of conviction in State v. Kerr, Wood C.P. No. 2012-CR-0389. Hon.

Robert Pollex presided over Kerr’s criminal trial and has since retired. Kerr’s case is

now assigned to Hon. Matthew Reger. For the reasons set forth below, we dismiss Kerr’s

petition, sua sponte.
                                        Background

       {¶ 2} According to the petition and its attachments, Kerr owned real property in

Weston, Ohio, that was the subject of several judgment liens. The state alleged that Kerr

created four releases with forged signatures of lienholders and caused the releases to be

presented to the Wood County Clerk of Courts for filing. The releases purported to

remove the liens, despite the absence of payment by Kerr to satisfy the judgments. Kerr

was convicted of four counts of forgery, in violation of R.C. 2913.31, and four counts of

tampering with evidence, in violation of R.C. 2921.12. On June 11, 2013, Kerr was

sentenced to serve seven years and eight months in prison. Kerr appealed, alleging that

the trial court erred in overruling his Crim.R. 29 motion for an acquittal because the state

failed to present legally sufficient evidence in support of the offenses and failed to

establish venue in Wood County. Kerr also alleged that his convictions were against the

manifest weight of the evidence. We affirmed the convictions and sentence in State v.

Kerr, 6th Dist. Wood No. WD-13-047, 2014-Ohio-5455.

       {¶ 3} On August 28, 2017, Kerr filed a “Motion to Vacate Void Judgment of

Conviction,” based upon his claim that the state failed to establish venue. The trial court

denied Kerr’s motion, and we dismissed his appeal as untimely in State v. Kerr, 6th Dist.

Wood No. WD-18-022 (Apr. 19, 2018). In addition, Kerr has argued “no proof of venue”

in five distinct original actions (excluding this case). See Kerr’s “Affidavit Pursuant to

R.C. 2969.25 Civil Complaints and Civil Appeals Filed Within The Last Five Years.”




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Four were filed directly in the Ohio Supreme Court, and one was filed in federal court.

Each was dismissed except for one that is pending in the Ohio Supreme Court.

                            Kerr’s Complaint in Prohibition

       {¶ 4} The complaint before this court consists of seven counts; two of them

pertain to venue. Thus, in Count 5, Kerr alleges that “[Respondent] Pollex was [without]

legal authority to render a judgment of conviction against [him] because venue was not

established.” In Count 6, Kerr alleges that there was no evidence that he “committed any

element of the charges in Ohio.” The gist of Kerr’s argument is that the state failed to

demonstrate that he had “physical possession, or transferred physical possession, of the

forged Release of Liens in Wood County, Ohio” and/or that he “made, used, or presented

the forged Release of Liens to the Clerk of Court in Wood County, Ohio.” We addressed

these same arguments in our decision affirming Kerr’s conviction and sentence. State v.

Kerr at ¶ 19-23.

       {¶ 5} In the remaining five counts, Kerr alleges that two exhibits were improperly

admitted under the business records exception to the hearsay rule (Count 1); that no

evidence was presented that Kerr ever had possession of the forged releases or that he

presented the forgeries to the clerk of courts (Count 2); that the “record is wholly devoid

of any evidence that [he] committed an element of the charges” (Count 3); that the state

failed to prove that he “emailed four forged documents from [a particular address in]

Bowling Green, Ohio” and/or that he emailed the releases to the title company (Count 4);

and finally, that the state committed prosecutorial misconduct by referring to




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inadmissible evidence, i.e., the business records that are the subject of Count 1 (Count 7).

In his prayer for relief, Kerr requests that we order respondent Reger to vacate the order

of conviction against him.

                                     Law and Analysis

       {¶ 6} Prohibition is “an extraordinary writ and [this court does] not grant it

routinely or easily.” State ex rel. Barclays Bank, P.L.C. v. Hamilton Cty. Court of

Common Pleas, 74 Ohio St.3d 536, 540, 660 N.E.2d 458 (1996). To be entitled to the

requested writ of prohibition, Kerr must show that (1) Judge Reger is about to exercise or

has exercised judicial power, (2) the exercise of that power is unauthorized by law, and

(3) denying the writ would result in injury for which no other adequate remedy exists in

the ordinary course of the law. State ex rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-

Ohio-3628, 40 N.E.3d 1138, ¶ 13.

       {¶ 7} Kerr is not seeking to prohibit any future action by the trial court; rather he

takes issue with a past ruling, i.e., his judgment of conviction in case No. 2012-CR-0389.

A writ of prohibition in such circumstances is permissible only “[w]here there is a total

want of jurisdiction on the part of a court,” in which case the writ will be “allowed to

arrest the continuing effect of an order previously issued by such court.” State ex rel.

Elder v. Collins, 11th Dist. Lake No. 2015-L-066, 2015-Ohio-3418, ¶ 7 quoting State

ex rel. Adams v. Gusweiler, 30 Ohio St.2d 326, 285 N.E.2d 22 (1972), paragraph two of

the syllabus.




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       {¶ 8} The trial court’s subject-matter jurisdiction over Kerr’s criminal prosecution

is clear. R.C. 2931.03 grants common pleas courts general original subject-matter

jurisdiction over the prosecution of “all crimes and offenses,” excluding “minor offenses”

which are vested in inferior courts. See, e.g., State ex rel. Pruitt v. Donnelly, 129 Ohio

St.3d 498, 2011-Ohio-4203, 954 N.E.2d 117, ¶ 2. Kerr does not argue a lack of subject-

matter jurisdiction, notwithstanding his frequent substitution of that term for “venue.”

The two are distinct. “Subject-matter jurisdiction of a court connotes the power to hear

and decide a case upon its merits, while venue connotes the locality where the suit should

be heard.” Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972). Given the

trial court’s obvious authority to hear Kerr’s case and in the absence of any indication

that Judge Reger is about to exercise judicial power that is unauthorized by law, a writ of

prohibition is improper.

       {¶ 9} Kerr’s complaint in prohibition raises the sufficiency and credibility of the

evidence on which his convictions are based, the admissibility of certain evidence, and

whether venue in the Wood County Court of Common Pleas was proper. Kerr raised

these same arguments in his direct appeal. Thus, Kerr had an adequate remedy, and

indeed exercised that remedy, in the ordinary course of the law. He is not, therefore,

entitled to a writ of prohibition. Shoop v. State, 144 Ohio St.3d 374, 2015-Ohio-2068, 43

N.E.3d 432, ¶ 8 (“An appeal is generally considered an adequate remedy in the ordinary

course of law sufficient to preclude a writ.”). The fact that Kerr’s prior appeal was

unsuccessful or even wrongly decided does not mean that it was not an adequate remedy.




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See State ex rel. Walker v. State, 142 Ohio St.3d 365, 2015-Ohio-1481, 30 N.E.3d 947,

¶ 14; State ex rel. Barr v. Pittman, 127 Ohio St.3d 32, 2010-Ohio-4989, 936 N.E.2d 43,

¶ 1.

       {¶ 10} Kerr’s claims are also barred by application of the res judicata doctrine.

The doctrine encompasses two related concepts. Claim preclusion (also known as

res judicata) prevents subsequent actions, by the same parties or their privies, based upon

any claim arising out of a transaction that was the subject matter of a previous action.

State ex rel. Peterson v. McClelland, 8th Dist. Cuyahoga No. 103918, 2016-Ohio-1549,

¶ 11. Issue preclusion (also known as collateral estoppel) serves to prevent relitigation

of any fact or point that was determined by a court of competent jurisdiction in a previous

action between the same parties or their privies. Issue preclusion applies even if the

causes of action differ. Id., see also Kelly v. Georgia Pacific, 46 Ohio St.3d 134, 137,

545 N.E.2d 1244 (1989) (“It would appear that the essential difference between res

judicata and [collateral estoppel] is that in the former there must be an exact identity in

parties and in causes of action, whereas the doctrine of [collateral] estoppel may apply

where the cause of action in the subsequent suit is different. In the former situation, the

preceding action is dispositive not only of issues which were actually litigated but also of

those which could have been litigated).

       Both claim and issue preclusion apply to this case. Because Kerr has already (and

repeatedly) brought suit against Judge Reger, Kerr is precluded from relitigating the

claim(s) brought against him (i.e. “no proof of venue”) nor may he add new claims




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arising out of his trial.1 “Res judicata requires a plaintiff to present every ground for

relief in the first action or be forever barred from asserting it.” State ex rel. Robinson v.

Huron County Court of Common Pleas, 143 Ohio St.3d 127, 2015-Ohio-1553, 34 N.E.3d

903, ¶ 8. Kerr may also be said to be collaterally estopped from bringing his venue

claims because they have been previously raised, and found to lack merit, by way of

multiple judgments, including the trial court’s order denying Kerr’s motion to vacate void

judgment (on venue grounds), this court’s decision affirming Kerr’s conviction and

sentence, and the Ohio Supreme Court’s orders dismissing Kerr’s applications in

mandamus and prohibition. “Allowing another collateral attack like this would

undermine the finality of all criminal judgments by permitting the endless relitigation [on

the issue of venue] when the offender has already had a full and fair opportunity to be

heard [on this issue].” State ex rel. Peoples v. Johnson, 152 Ohio St.3d 418, 2017-Ohio-

9140, 97 N.E.3d 426, ¶ 13.

       {¶ 11} Dismissal of an original action is “appropriate if after presuming the truth

of all material factual allegations of [relators’] petition and making all reasonable

inferences in their favor, it appear[s] beyond doubt that they could prove no set of facts

entitling them to the requested extraordinary relief.” State ex rel. Scott v. Cleveland, 112

Ohio St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923, ¶ 14. We find such circumstances



1
 See State ex rel. Kerr v. Reger, Ohio Supreme Court case No. 2017-1502 (mandamus
action asserting “no proof of venue); State ex rel. Kerr v. Reger, Ohio Supreme Court
case No. 2018-0425 (prohibition action asserting “no proof of venue”).




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present here, and we therefore dismiss, sua sponte, Kerr’s complaint for a writ of

prohibition. His request for an alternative writ, filed on April 4, 2019, is denied as moot.

Costs are taxed against Kerr. Clerk to serve notice upon the parties as provided by the

Civil Rules.


                                                                                Writ denied.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Christine E. Mayle, P.J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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