[Cite as Beers v. Falkowski, 2017-Ohio-4380.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


THOMAS P. BEERS,                                 :        PER CURIAM OPINION

                                                 :
                 Relator,
                                                 :        CASE NO. 2017-L-044

        - vs -                                   :

HONORABLE COLLEEN A.                             :
FALKOWSKI, et al.,
                                                 :

                 Respondents.                    :


Original Action for Writ of Prohibition.

Judgment: Petitions dismissed.


George K. Simakis, G.K. Simakis & Associates, 4186 Pearl Road, Cleveland, OH
44109 (For Relator).

Charles E. Coulson, Lake County Prosecutor, and Eric A. Condon, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Respondents).


PER CURIAM.

        {¶1}     This matter is before this court on the March 20, 2017 application for writ

of prohibition and the May 18, 2017 amended application for writ of prohibition filed by

relator, Thomas P. Beers, against respondents, Judge Colleen A. Falkowski, Magistrate

Lynne Yohe, and Magistrate Margaret Campbell.
      {¶2}   Relator’s claim for relief is predicated upon the following factual

background involving a domestic relations matter: relator and Shannon Beers were

married on October 27, 2001; two children were born as issue of the marriage, B.B.

(d.o.b. June 16, 2005) and M.B. (d.o.b. October 17, 2007); Shannon filed a complaint

for divorce on August 23, 2013; relator filed an answer and counterclaim for divorce on

September 20, 2013; the cause came on for hearing for final trial on May 6, 7, and 15,

2015; the trial court adopted a final judgment entry of divorce on April 18, 2016; relator

contends the divorce decree was faulty and unclear, yet neither party filed an appeal;

Shannon filed a motion to show cause on August 11, 2016; on February 1, 2017, the

trial court scheduled a trial (hearing) for March 20, 2017 on the motion to show cause;

on the date of the hearing, relator filed his March 20, 2017 application for writ of

prohibition; the hearing went forward; and the magistrate issued a decision on April 6,

2017 finding and concluding that relator is in civil contempt, with included purge

conditions, for nonpayment of $7,435.03.

      {¶3}   In response to the prohibition petition, respondents filed a motion to

dismiss on April 7, 2017, pursuant to Civ.R. 12(B)(6), contending that relator has failed

to state a claim upon which relief can be granted. On April 20, 2017, relator filed

objections to the magistrate’s decision. On May 18, 2017, relator filed a response in

opposition to respondents’ motion to dismiss and an amended application for writ of

prohibition to prevent the trial court from enforcing the magistrate’s April 6, 2017

decision.

      {¶4}   This court stated in State ex rel. Caszatt v. Gibson, 11th Dist. Lake No.

2012-L-107, 2013-Ohio-213, ¶15:




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       {¶5}   “A writ of prohibition can only be issued where the relator establishes that:

(1) a judicial officer or court intends to exercise judicial power over a pending matter; (2)

the proposed use of that power is unauthorized under the law; and (3) the denial of the

writ will result in harm for which there is no other adequate remedy in the ordinary

course of the law. State ex rel. Florence v. Zitter, 106 Ohio St.3d 87, * * *, 2005-Ohio-

3804, ¶14; State ex rel. Sliwinski v. Unruh, 118 Ohio St.3d 76, * * *, 2008-Ohio-1734,

¶7. A writ of prohibition is a legal order under which a court of superior jurisdiction

enjoins a court of inferior jurisdiction from exceeding the general scope of its inherent

authority. State ex rel. Feathers v. Hayes, 11th Dist. No. 2006-P-0092, 2007-Ohio-

3852, ¶9; State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70 * * * (1998). The writ is

an extraordinary remedy which should not be issued in a routine manner. State ex rel.

The Leatherworks Partnership v. Stuard, 11th Dist. No. 2002-T-0017, 2002-Ohio-6477,

¶15.” (Parallel citations omitted.)

       {¶6}   In this case, relator alleges that respondents were about to exercise, and

did exercise, jurisdiction in the underlying action by holding the March 20, 2017 hearing.

As a result, relator’s allegation is legally sufficient to satisfy the first element of a

prohibition claim. Caszatt, supra, at ¶15; Leatherworks, supra, at ¶16. Accordingly, the

outcome of our analysis as to the sufficiency of relator’s request for prohibition will turn

upon whether his allegation can satisfy the second and third elements of such a claim.

       {¶7}   “[T]he initial issue which must be addressed in regard to the second and

third elements is whether the alleged jurisdictional defect is patent and unambiguous. *

* * [I]f there are no set of facts under which a trial court or judge could have jurisdiction

over a particular case, the alleged jurisdictional defect will always be considered patent

and unambiguous. On the other hand, if the court or judge generally has subject matter


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jurisdiction over the type of case in question and his authority to hear that specific action

will depend on the specific facts before him, the jurisdictional defect is not obvious and

the court/judge should be allowed to decide the jurisdictional issue.” Leatherworks,

supra, at ¶19.

       {¶8}   We note that respondents, as sitting members of a county common pleas

court, generally have subject matter jurisdiction to hear and rule on a case such as the

instant. The alleged jurisdictional defect in this action, as asserted by relator in his

petitions, is not patent and unambiguous.

       {¶9}   However, since the March 20, 2017 hearing went forward and a

magistrate’s decision was rendered, if respondents made an improper decision, relator

has an adequate remedy at law because he can file an appeal from a final judgment of

the trial court. See, e.g., Leatherworks, supra, at ¶14. Thus, because an adequate

legal remedy exists, relator fails to establish that he is entitled to a writ of prohibition.

       {¶10} Accordingly, it is the order of this court that respondents’ motion to dismiss

is granted. Relator’s prohibition petition and amended petition are hereby dismissed.


CYNTHIA WESTCOTT RICE, P.J., TIMOTHY P. CANNON, J., COLLEEN MARY
O’TOOLE, J., concur.




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