[Cite as State ex rel. Kerr v. Kelsey, 2019-Ohio-3215.]




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


State of Ohio, ex rel. Jeremy Kerr                        Court of Appeals No. WD-19-047

        Relator

v.

Judge Reeve Kelsey                                        DECISION AND JUDGMENT

        Respondent                                        Decided: August 6, 2019

                                                    *****

        Jeremy Kerr, pro se.

                                                    *****

        ZMUDA, J.

        {¶ 1} Relator, Jeremy Kerr, proceeding pro se, filed this original action seeking a

writ of prohibition against respondent Judge Reeve Kelsey, retired judge from the Wood

County Court of Common Pleas. Under 6th.Dist.Loc.App.R. 6(B), respondent is only

required to file a responsive pleading or a motion to dismiss in the event we determine

relator properly set forth a claim for relief and issue an alternative writ providing a
deadline for such a response. Because relator’s complaint fails to properly set forth a

claim for relief, we decline to grant an alternative writ and no responsive filing is

required. Relator’s failure to show respondent had a patent and unambiguous lack of

subject-matter jurisdiction, or that he lacked an adequate remedy in the ordinary course of

law, render his claim insufficient and warrant dismissal.

                                      I. Background

       {¶ 2} Relator identifies six interrelated issues on which he seeks relief.1

Complaint at ¶ 20-66. Each of these issues arise from previous civil litigation in Wood

County, Ohio. In the first action, Keith Lenz, a non-party to this request for a writ of

prohibition, filed a civil action against Kerr Building, Inc. in the Wood County Court of

Common Pleas—case No. 2011-CV-0852. Complaint at ¶ 4. Kerr Building, Inc. failed

to file any responsive pleading and respondent entered default judgment against it on

January 27, 2012. Complaint at ¶ 8-10. Lenz subsequently filed a motion to pierce the

corporate veil to seek damages from relator individually. Complaint at ¶ 11. Respondent

denied the motion as relator was not a party to the action but granted leave for Lenz to

file a motion for leave to amend to add relator as a party. Complaint at ¶ 12. Lenz’s

motion for leave to amend was granted and his amended complaint added relator as a

defendant to a claim entitled “Officer’s Liability for Corporate Action.” Complaint at



1
  In dismissing a complaint for writ of prohibition sua sponte, we must presume all facts
alleged in the complaint are true. Barnes v. Beachwood, 8th Dist. Cuyahoga No. 87100,
2006-Ohio-3, ¶ 13-15.




2.
¶ 13. Relator filed a motion to dismiss the amended complaint arguing it was improper

following entry of default against Kerr Building, Inc. Complaint at ¶ 14. Respondent

denied the motion and ultimately entered judgment in Lenz’s favor against both Kerr

Building, Inc. and relator, jointly and severally, for damages in the amount of $234,670.

Complaint at ¶ 15-16.

       {¶ 3} Relator was later named in a separate action involving the transfer of certain

parcels of land—Wood County Court of Common Pleas case No. 213-CV-0643.2

Complaint at ¶ 17-19. There, Lenz alleged relator fraudulently transferred four parcels of

real estate to a development company. Complaint at ¶ 17. Lenz sought to encumber title

to those parcels with a judgment lien from the previous litigation and sought an

injunction preventing the further transfer of the real property. Complaint at ¶ 18.

Respondent granted the injunction. Complaint at ¶ 19. It is on these facts relator seeks a

writ of prohibition from this court.

                                  II. Law and Analysis

       {¶ 4} “In order to obtain a writ of prohibition, relator must prove: (1) that the

court or officer against whom the writ is sought is about to exercise judicial or quasi-

judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that

denying a writ will result in injury for which no other adequate remedy exists in the



2
 Relator makes no separate reference to respondent’s subject-matter jurisdiction in Wood
County case No. 213-CV-0643. As a result, there is no basis for granting the requested
writ in regard to judgment entered in that action.




3.
ordinary course of law.” State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176, 178, 631

N.E.2d 119 (1994). A writ of prohibition can also issue in instances when the lower

court has already exercised judicial power, as is the case here. See State ex rel. T.L.M. v.

Judges of First Dist. Ct. of Appeals, 147 Ohio St.3d 25, 2016-Ohio-1601, 59 N.E.3d

1260, ¶ 9-10. The basis on which a writ of prohibition will be granted for future and past

exercise of judicial power is the same. Id.

       {¶ 5} The purpose of a writ of prohibition is to restrain inferior courts from

exceeding their jurisdiction. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 73, 701

N.E.2d 1002 (1998). It is an “extraordinary remedy which is customarily granted with

caution and restraint, and is issued only in cases of necessity arising from the inadequacy

of other remedies.” Id., citing State ex rel. Henry v. Britt, 67 Ohio St.2d 71, 73, 424

N.E.2d 297 (1981). It is intended to determine “solely and only” the lower court’s

subject-matter jurisdiction. Id., citing State ex rel. Eaton Corp v. Lancaster, 40 Ohio

St.3d 404, 409, 534 N.E.2d 46 (1988). If the lower court does not patently and

unambiguously lack jurisdiction, it has the ability to determine its own jurisdiction. State

ex rel. Bradford v. Trumbull Cty. Court, 64 Ohio St.3d 502, 597 N.E.2d 116 (1992). A

writ of prohibition will not issue without a patent and unambiguous lack of jurisdiction

and a lower court’s holding that it has jurisdiction following a challenge to the same must

be addressed through an appeal. Id. Put simply, if there is not a patent and unambiguous

lack of jurisdiction, relator’s objections to the trial court’s actions must be raised on

appeal and his request for a writ of prohibition will be denied. Id.




4.
       {¶ 6} Initially, we note that sua sponte dismissal of a complaint for a writ of

prohibition is generally inappropriate. State ex rel. Jones v. Garfield Hts. Mun. Ct., 77

Ohio St.3d 447, 447-448, 674 N.E.2d 1381 (1997), citing State ex rel. Cossett v.

Executive State Governors Federalism Summit, 74 Ohio St.3d 1416, 655 N.E.2d 737

(1995). However, dismissal is warranted when the complaint is frivolous or the claimant

cannot prevail on the facts alleged in the complaint. Id. Here, we find relator is unable to

prevail on the facts alleged in the complaint as all issues raised could have been

addressed on direct appeal from the trial court’s judgment, providing relator with an

adequate remedy at law. We recognize that relator is not required to establish the lack of

an adequate remedy if there is a patent and unambiguous lack of subject-matter

jurisdiction exercised by respondent. State ex rel. Sapp v. Franklin Cty. Court of

Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15. The facts alleged

in relator’s complaint fail to support any such lack of jurisdiction to relieve him of this

requirement.

       {¶ 7} Relator’s complaint identifies what he believes to be multiple errors by

respondent. These include granting a default judgment against a “non-legal entity”

(Count 1), a lack of personal jurisdiction over Kerr Building, Inc. due to lack of service

(Count 2), and various allegations regarding respondent’s granting of leave to amend a

pleading to add a claim against relator (Counts 3-6). Each issue identified by relator

constitutes an issue of law unrelated to subject-matter jurisdiction.




5.
       {¶ 8} Subject-matter jurisdiction is the power of a court to entertain and adjudicate

a particular class of cases. Bank of Am. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275,

21 N.E.3d 1040, ¶ 19 (internal citations omitted). A court’s subject-matter jurisdiction is

determined without regard to the rights of the individual parties involved in a particular

case. Id. Relator’s complaint makes no reference to the type of claim underlying the

judgments he seeks to render void. Instead, he references only perceived errors in

respondent’s determination with regard to the rights of individual litigants. These do not

support a patent and unambiguous lack of subject-matter jurisdiction over the underlying

claims.

       {¶ 9} First, Count 1 of relator’s complaint argues that Kerr Building, Inc. is a non-

legal entity and therefore not subject to the default judgment entered against it. 3 Relator

makes no reference to the nature of the claim alleged against Kerr Building, Inc. Instead,

relator attached a January 2, 2014 affidavit from then-Ohio Secretary of State, John

Husted, indicating his office had no record of any documents having been filed by Kerr

Building, Inc. Complaint at ¶ 5, Exhibit 1. Accepting this affidavit on its face, it does

not indicate respondent patently and unambiguously lacked subject-matter jurisdiction

over claims against Kerr Building, Inc. by virtue of it not being registered with the

Secretary of State. R.C. 1329.10(C) specifically authorizes an action to “be commenced



3
  It is unclear how an improper granting of default judgment against a separate entity
would render judgment against relator void when he appeared and defended himself in
the action.




6.
or maintained against the user of a trade name or fictitious name whether or not the name

has been registered or reported” to the secretary of state. R.C. 1329.10(C), see also

Family Medicine Foundation, Inc. v. Bright, 96 Ohio St.3d 183, 772 N.E.2d 1177 (2002)

(holding commencement and maintenance of a civil action against the user of a trade or

fictitious name is not invalid on its face). The allegations in Count 1 of relator’s

complaint only show that Kerr Building, Inc. was not registered with the Secretary of

State, not that respondent lacked subject-matter jurisdiction over the type of claim alleged

against it.

       {¶ 10} Further, to the extent respondent’s judgment impacted relator, he had an

adequate remedy at law to challenge any judgment against him both at trial and through

appeal of any adverse judgment. Relator chose to exercise this option by appearing and

defending the claims against him at the trial court. Complaint at ¶ 14-15. While his

complaint is silent as to whether the judgment against him was appealed, that action, or

inaction, is irrelevant to determining whether he had an adequate remedy at law.

Allowing the time for appeal to lapse does not deprive relator of an adequate remedy at

law to satisfy the requirements for granting the requested writ. See State ex rel. Tran v.

McGrath, 78 Ohio St.3d 45, 47, 676 N.E.2d 108 (1997).

       {¶ 11} Assuming all allegations in Count 1 of his complaint are true, relator can

only succeed in showing that Kerr Building, Inc. is not a registered entity in the state of

Ohio. This alone does not preclude judgment against it and does not provide any

indication as to why the underlying claims were outside those the trial court was




7.
authorized to hear under existing law. In the event this judgment against a separate entity

did impact relator, he appeared and defended himself in that same action and had an

adequate remedy at law to appeal the adverse judgment. Therefore, Count 1 of the

complaint fails to support any of the elements necessary for the granting of the requested

writ.

        {¶ 12} Count 2 alleges respondent “lacks personal jurisdiction over ‘Kerr

Building, Inc.’” due to lack of service. Complaint at ¶ 36. Personal jurisdiction is the

power of a court to enter a valid judgment against a person. In re. Shepard, 4th Dist.

Highland No. 00CA12, 2001 WL 802209 (Mar. 26, 2001), citing Meadows v. Meadows,

73 Ohio App.3d 316, 596 N.E.2d 1146 (3d Dist.1992). Lack of personal jurisdiction is

an affirmative defense established in Civ.R. 12(B)(2). “It is axiomatic that Ohio courts

can exercise jurisdiction over a person who is a resident of Ohio.” Prouse, Dash &

Crouch, LLP v. DiMarco, 116 Ohio St.3d 167, 2007-Ohio-5753, 876 N.E.2d 1226, ¶ 5.

Relator makes no allegation that Kerr Building, Inc. is not a resident of Ohio for purposes

of personal jurisdiction. Instead, relator makes the related, but distinct claim that Kerr

Building, Inc. was not properly served in the underlying action. Complaint at ¶ 36,

Civ.R. 12(B)(5). Essentially, relator claims that the underlying action was never properly

commenced against Kerr Building, Inc. in accordance with Ohio Civ.R. 3(A) and

therefore the judgments against him were void. This claim is unrelated to subject-matter

jurisdiction.




8.
       {¶ 13} A lack of service defense is an issue of law subject to de novo review by

appellate courts. See Hubiak v. Ohio Family Practice Center, 2014-Ohio-3116, 15

N.E.3d 1238, ¶ 7-11 (9th Dist.). Commencement of an action requires the filing of a

complaint and service upon a named defendant within a year from such filing. Civ.R.

3(A).4 Whether the action was properly commenced against Kerr Building, Inc. is a

defense which could have been raised by the entity itself. Civ.R. 12(B)(5). Count 2 of

relator’s complaint fails to identify any facts under which the granting of judgment

against Kerr Building, Inc. divested respondent of subject-matter jurisdiction over claims

against relator individually. Assuming relator’s claim is that vacating the judgment

against the corporate entity would likewise vacate the judgment against him, lack of

service against the entity merely constitutes an affirmative defense to be raised at trial

and is unrelated to subject-matter jurisdiction. Id., Civ.R. 12(B).

       {¶ 14} Additionally, relator fails to allege any facts in Count 2 of his complaint

which support his legal conclusion that this affirmative defense, presumed to be true for

purposes of this decision, somehow renders the judgment against him void. Complaint at

¶ 36-37. Relator appeared and defended himself in the underlying actions. Complaint at

¶ 14-16. Any errors by respondent with regard to lack of service on Kerr Building, Inc.,

to the extent it impacted the judgment against relator, are issues of law relator could have



4
 Notably, despite challenging respondent’s decision to permit relator to be added to the
underlying action, relator does not allege he himself was not properly served in the
underlying action.




9.
raised on appeal. Hubiak at ¶ 7-11. The ability to appeal the judgment against him

provided relator with an adequate remedy at law. Therefore, relator cannot succeed in

satisfying the elements necessary for issuance of the requested writ under Count 2 of his

complaint.

       {¶ 15} Counts 3 through 6 identify discretionary rulings made by respondent in the

first civil action as the basis for relator seeking the writ of prohibition. Each count

alleges respondent improperly granted Lenz leave to file an amended complaint. The

basis for these arguments are procedural in nature with regard to the prior entry of default

or an alleged misapplication of Civ.R. 15. None of these arguments suggest a patent and

unambiguous lack of subject-matter jurisdiction. It is well-established that the granting

of leave to amend is within the discretion of a trial court and reversible on appeal under

an abuse of discretion standard. See State ex rel. Wargo v. Price, 56 Ohio St.2d 65, 66,

381 N.E.2d 943 (1978). Respondent’s purported misapplication of Civ.R. 15 or use of

improper procedure in granting the motion for leave to amend is unrelated to subject-

matter jurisdiction. The facts in relator’s complaint present only discretionary issues

which are properly reviewed on appeal, not respondent’s authority to adjudicate the

claims against him. As a result, Counts 3 through 6 of relator’s complaint fail to identify

a patent and unambiguous lack of subject-matter jurisdiction and relator had an adequate

remedy at law with regard to the granting of leave to add him as a party.

       {¶ 16} In reviewing the complaint, and assuming all facts alleged to be true,

relator cannot succeed in showing respondent patently and unambiguously lacked




10.
Subject-matter jurisdiction over the underlying claims or that relator lacked an adequate

remedy in the ordinary course of law. Accordingly, we dismiss relator’s request for writ

of prohibition.

       {¶ 17} Writ denied. Motion for waiver of costs denied. Costs assessed to relator.

       {¶ 18} To the clerk: Manner of Service

       {¶ 19} The clerk is directed to serve upon all parties, within three days, a copy of

this decision in a manner prescribed by Civ.R. 5(B).


                                                                                Writ denied.




Arlene Singer, J.                               _______________________________
                                                            JUDGE
Christine E. Mayle, P.J.
                                                _______________________________
Gene A. Zmuda, 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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