[Cite as Minnillo v. Friedland, 2014-Ohio-33.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100359



                         MICHAEL MINNILLO, ET AL.

                                                          RELATORS

                                                 vs.

         HONORABLE CAROLYN FRIEDLAND, ET AL.
                                                          RESPONDENTS




                                           JUDGMENT:
                                           WRIT DENIED


                                         Writ of Prohibition
                                   Motion Nos. 469029 and 469479
                                         Order No. 470544

        RELEASE DATE: January 6, 2014
ATTORNEY FOR RELATORS

James R. Douglass
James R. Douglass Co., L.P.A.
4600 Prospect Avenue
Cleveland, Ohio 44103


ATTORNEYS FOR RESPONDENTS

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Nora E. Graham
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

        {¶1}   On September 5, 2013, the relators, Michael and Deborah Minnillo,

commenced this prohibition action against the respondents, Judge Carolyn Friedland and

the Cuyahoga County Common Pleas Court, to prevent the respondents from continuing

to exercise jurisdiction over the underlying case, U.S. Bank Natl. Assn. v. Minnillo,

Cuyahoga C.P. No. CV-778795. The Minnillos claim that under the termination of

jurisdiction principle, the respondents lost all jurisdiction when Judge Friedland

dismissed the underlying case without prejudice for failure to prosecute.   The Minnillos

also requested an alternative writ.   On October 11, 2013, the respondents moved for

summary judgment. On October 29, 2013, the Minnillos filed their combined brief in

opposition and their own motion for summary judgment, and on November 18, 2013, the

respondents filed their combined brief in opposition and reply brief. On December 8,

2013, the Minnillos filed a combined sur-reply brief and reply brief to the brief in

opposition to their motion for summary judgment. For the following reasons, this court

grants the respondents’ motion for summary judgment, denies the Minnillos’ motion for

summary judgment and denies the applications for a writ of prohibition and an alternative

writ.

        {¶2} The underlying case is a commercial foreclosure action on an apartment

building owned by the Minnillos. On April 3, 2012, the respondent judge entered an

order required in residential foreclosures that a certain attorney’s affidavit must

accompany a summary judgment motion; if the affidavit was not submitted, the trial court
would dismiss the case.          The respondent judge also appointed a receiver for the

apartment building.      The Minnillos appealed that decision, and this court affirmed the

appointing of a receiver. U.S. Bank Natl. Assn. v. Minnillo, 8th Dist. Cuyahoga No.

98593, 2012-Ohio-5188.

       {¶3} After the case returned to the trial court, the respondent judge issued another

order on December 13, 2012, requiring the plaintiff’s lawyer to move for summary

judgment and submit “an attorney’s affidavit that fully complies with the court’s standing

orders as outlined on the county website.”          The order further warned that the failure to

do so could submit the case to dismissal without prejudice for failure to prosecute. This

referred to the affidavit required in residential foreclosures.         On January 14, 2013, the

plaintiff moved for summary judgment, but did not include the required attorney’s

affidavit.

       {¶4} Thus, on February 27, 2013, the respondent judge dismissed the underlying

case without prejudice for failure to file the required affidavit.          On March 7, 2013, the

plaintiff’s attorney moved to vacate the dismissal order pursuant to Civ.R. 60(A).1 The

plaintiff’s lawyer argued that ordering the affidavit required in a residential foreclosure in

a commercial foreclosure action was an oversight that resulted in an erroneous dismissal.

 The trial court, pursuant to Civ.R. 60(A), had the power to correct this inadvertent

mistake.



       1    Civ.R. 60(A) provides in pertinent part as follows: “Clerical mistakes in judgments, orders
or other parts of the record and errors therein arising from oversight or omission may be corrected by
the court at any time on its own initiative or on the motion of any party * * *.”
       {¶5} On March 21, 2013, the respondent judge granted the motion to vacate and

reinstated the case.   The judge stated: “The within property is commercial in nature and

thus plaintiff was not required to file an attorney affidavit per the court’s standing

orders.”2 The Minnillos then brought this prohibition action to prevent the trial court

from exercising any further jurisdiction over the underlying case, because the trial court

lost all jurisdiction when it dismissed the case.

       {¶6} 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. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989).

Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the

cause that it is attempting to adjudicate or the court is about to exceed its jurisdiction.

State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941), 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 Cty., 153 Ohio St. 64,

65, 90 N.E.2d 598 (1950). 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, 137 Ohio St. 273, 28 N.E.2d 641 (1940).


       2    The Minnillos appealed the order granting the motion to vacate the dismissal and to
reinstate the foreclosure case. U.S. Bank Natl. Assn. v. Minnillo, 8th Dist. Cuyahoga No. 99725.
On July 30, 2013, this court dismissed the appeal for lack of jurisdiction; the dismissal without
prejudice did not present a final, appealable order.
        {¶7} 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. Tilford v. Crush, 39 Ohio St.3d 174,

529 N.E.2d 1245 (1988); and State ex rel. Csank v. Jaffe, 107 Ohio App.3d 387, 668

N.E.2d 996 (8th Dist.1995). 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 challenging the court’s jurisdiction

has an adequate remedy at law via an appeal from the court’s holding that it has

jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of Edn. v. Portage Cty.

Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997).

        {¶8} The termination of jurisdiction principle is that when a case is dismissed or

reaches final judgment, the trial court loses authority to proceed with any aspect of the

case.     Furthermore, prohibition is an appropriate remedy to enforce the termination of

jurisdiction principle. State ex rel. Rice v. McGrath, 62 Ohio St.3d 70, 577 N.E.2d 1100

(1991).     Therefore, the Minnillos argue that when Judge Friedland dismissed the case

without prejudice for want of prosecution, she lost all authority to do anything else on the

case, including ruling on a motion to vacate the dismissal pursuant to Civ.R. 60(A).3

The Minnillos continue that Civ.R. 60(A) is not even applicable, because discerning

whether this was a residential or commercial foreclosure and alleviating the plaintiff of

the need to file the attorney affidavit were not clerical errors.      Rather, such errors were


        3 Civ.R. 60(B) applies to judgments, i.e., final appealable orders.   The subject dismissal
was without prejudice and not a final, appealable order.
substantive errors of judgment and beyond the scope of Civ.R. 60(A). The Minnillos

conclude that because the dismissal deprived the respondents of further jurisdiction, the

writ of prohibition should issue.

       {¶9} However, the courts of Ohio have recognized that in certain instances a trial

court retains the jurisdiction to vacate a dismissal premised on errors “arising from

oversight and omission.” In State ex rel. Henry v. Britt, 67 Ohio St.2d 71, 74, 424

N.E.2d 297 (1981), the Supreme Court clarified the scope of Civ.R. 60(A). Citing 6A

Moore, Federal Practice, Paragraph 60.08, the court ruled that Civ.R. 60(A) permits the

trial court to correct clerical mistakes and errors of oversight and omission.

       {¶10} In Logsdon v. Nichols, 72 Ohio St.3d 124, 127, 647 N.E.2d 1361 (1995), the

Supreme Court of Ohio held that “the trial court retains, at least in some instances, the

jurisdiction to deal with a dismissal entry improperly filed.          Given * * * that the

dismissal occurred by * * * the court’s actions under Civ.R. 41(A)(2), the trial court

retained the jurisdiction to sua sponte vacate its erroneously entered dismissal.”           In

Logsdon, mere days before trial, the plaintiffs in a personal injury action asked the court

to dismiss their case without prejudice pursuant to Civ.R. 41(A)(2), so they could refile

the action with the aid of the savings statute; the plaintiffs had already dismissed their

case once without prejudice.    The trial court granted the plaintiffs’ request and dismissed

their case without prejudice.       Approximately two hours later, the judge vacated the

dismissal sua sponte, because he had not given the defendants the opportunity to respond.

 The judge then set the case for trial.   On the date of trial, neither the plaintiffs nor their

attorney appeared; thus, the trial court dismissed the case with prejudice.
       {¶11} On appeal, the plaintiffs argued that pursuant to the termination of

jurisdiction principle, the trial court lacked the jurisdiction under Civ.R. 60(A) to vacate

the dismissal without prejudice. The Supreme Court of Ohio rejected this argument

noting that the judge had the jurisdiction to correct the reversible error of improperly

dismissing the case in the first instance.

       {¶12} Similarly, in Britt, 67 Ohio St.2d 71, 424 N.E.2d 297 (1981), the Supreme

Court of Ohio ruled that a trial court retains jurisdiction to rule on a Civ.R. 60(A) motion,

after an appeal had ordered the trial court to reinstate a plaintiff’s voluntary dismissal

without prejudice.     Specifically, the Supreme Court of Ohio ruled that a writ of

prohibition would not issue to prevent the trial court from ruling on the Civ.R. 60(A)

motion.

       {¶13} This court has ruled that a trial court may consider a Civ.R. 60(A) motion to

vacate after it has dismissed a case pursuant to a motion to dismiss on the statute of

limitations.   The plaintiff argued that the dismissal should be vacated because the

defendant had stipulated to an extension of time for the plaintiff to respond. This court

affirmed the denial of the Civ.R. 60 motion because the plaintiff had not properly invoked

the rule; this court did not base its decision on lack of jurisdiction. Epstein v. Louis, 8th

Dist. Cuyahoga No. 97071, 2012-Ohio-274.

       {¶14} In Horman v. Veverka, 30 Ohio St.3d 41, 506 N.E.2d 218 (1987), the

Supreme Court of Ohio ruled that a trial court’s order vacating a dismissal and reinstating

the case was within the trial court’s inherent power.         The Ninth District followed

Horman in Shoup v. Holman, 81 Ohio App.3d 127, 610 N.E.2d 502 (9th Dist.1991). In
that case, the trial court dismissed the case without prejudice because it believed that the

parties had settled the case.   The trial court granted a motion to vacate when the plaintiff

informed the court that the agreement had “fallen through” and then granted a default

judgment.      After garnishment proceedings had begun, the defendant sought to vacate the

judgment on the grounds that the trial court lacked jurisdiction to reinstate the case. On

appeal, the Ninth District held that the trial court had the inherent power to vacate a

dismissal and reinstate the case.

       {¶15} In reviewing Civ.R. 60(A) and the above cases, the court concludes that the

respondents had jurisdiction to consider the plaintiffs’ Civ.R. 60(A) motion and vacate its

dismissal without prejudice.    The inclusion of requirements for a residential foreclosure

in a commercial foreclosure case was an oversight that resulted in an erroneous order that

may be corrected pursuant to Civ.R. 60(A). Such inclusion was at least as much of an

oversight as Logsdon’s failure to give notice. Logsdon, Henry, Epstein, Horman, and

Shoup confirm that the trial court had the jurisdiction to rule on that motion or to vacate

its dismissal. At the very least, those cases clothed the respondents with sufficient

jurisdiction to determine the trial court’s jurisdiction, precluding the issuance of a writ of

prohibition.    Furthermore, the procedural posture of Logsdon shows that there is an

adequate remedy at law through appeal.        In that case, the plaintiff was able to secure

review of the trial court’s jurisdiction under Civ.R. 60(A) on appeal, after the trial court

had dismissed the case with prejudice. The court further notes that this resolution will

allow the parties and the court to resolve the underlying case on the merits in a more

expeditious manner.
       {¶16} Accordingly, this court grants the respondents’ motion for summary

judgment and denies the applications for a writ of prohibition and an alternative writ.

Relators to pay costs.   This court directs the clerk of court to serve all parties notice of

this judgment and its date of entry upon the journal as required by Civ.R. 58(B).

       {¶17} Writ denied.



EILEEN T. GALLAGHER, JUDGE

PATRICIA ANN BLACKMON, P.J., and
TIM McCORMACK, J., CONCUR
