[Cite as State ex rel. Tucker v. Grendell, 2013-Ohio-539.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                       GEAUGA COUNTY, OHIO


STATE OF OHIO ex rel.                                        :   PER CURIAM OPINION
JONATHAN TUCKER,

                 Relator,                                    :
                                                                 CASE NO. 2012-G-3125
        - vs -                                               :

TIMOTHY J. GRENDELL, JUDGE,                                  :

                 Respondent.                                 :


Original Action for Writ of Prohibition or Mandamus.

Judgment: Petition dismissed.


Jane Timonere, Timonere Law Offices, L.L.C., 4 Lawyers Row, Jefferson, OH 44047-
1099 (For Relator).

Timothy J. Grendell, Judge, pro se, 231 Main Street, Suite 200, Chardon, OH 44024
(Respondent).



PER CURIAM.

        {¶1}      This cause came for consideration upon relator-Jonathan Tucker’s

petition for a writ of prohibition or, in the alternative, a writ of mandamus. Relator

alleges the Geauga County Juvenile Court lost jurisdiction to rule on any further matters

pertaining to a dependency complaint filed by the Geauga County Children’s Services

Board (Case No. 11 JF 000221) due to the purported passing of the statutory sunset

date. Respondent, Timothy J. Grendell, Judge for the Geauga Juvenile Court, rejected

relator’s argument ruling the juvenile court retained general jurisdiction over the child.
Relator now seeks a writ of prohibition precluding the respondent from holding any

future hearings and preventing any future rulings in Case No. 11 JF 00021. Relator

also requests this court to issue a writ of mandamus requiring the Geauga Juvenile

Court to transfer any further proceedings in Case No. 11 JF 000221 to the Ashtabula

County Juvenile Court. For the reasons that follow, we dismiss relator’s petition.

      {¶2}     In 2008, relator, a resident of Indiana and father of K.D.2, initiated a

visitation case in the Ashtabula County Court of Common Pleas, Juvenile Division

(Case No. 09JI264). At that time, Tiffany Dixon, mother of K.D.1 (unrelated to relator)

and K.D. 2, lived with her minor children in Ashtabula. Ms. Dixon and the children

subsequently moved to Geauga County and, the pleadings indicate, in May 2011,

Geauga County Job and Family Services (“GCJFS”), initiated a dependency complaint

(Case No. 11JF000221). As a result, K.D.1 was placed in the temporary custody of

GCJFS and K.D.2 was placed in the temporary custody of relator.

      {¶3}     After the Geauga case was initiated, the guardian ad litem in Case No.

09JI264 moved to terminate the jurisdiction of the Ashtabula Juvenile Court in Case No.

09JI264.     The trial court, however, denied the motion and held “all matters regarding

custody and visitation in abeyance pending further hearing by Geauga County Juvenile

Court.”

      {¶4}     In December 2011, The Geauga Juvenile Court granted legal custody of

K.D.1 to Ms. Dixon with protective supervision by GCJFS; protective supervision was

terminated on May 10, 2012. On May 11, 2012, the parties convened for a hearing

regarding relator’s temporary custody and Ms. Dixon’s motion to terminate the same.

And, on May 17, 2012, the Geauga Juvenile Court issued its judgment reunifying K.D.2

with Ms. Dixon and K.D.1 “subject to GCJFS protective supervision and pending further


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review by this Court.” The judgment additionally provided that “[t]his Judgment Entry is

an interim order. The court will continue to exercise jurisdiction over K.D.2 in this case.”

        {¶5}    Relator subsequently filed a motion to vacate the May 17, 2012 judgment.

In his motion, relator set forth essentially the same arguments as he asserts in the

underlying petition; namely, that the trial court lacked jurisdiction over the matter

because the dependency statute terminates any temporary custody orders still in effect

one year after a complaint is filed.       The Geauga County Juvenile Court denied the

motion, noting it possessed ongoing jurisdiction over the matter. Relator did not appeal

this judgment. Instead, he filed the instant petition requesting this court to issue a writ

of prohibition or mandamus against respondent.            Respondent subsequently filed a

motion to dismiss the petition for failure to state a claim upon which relief can be

granted.

        {¶6}    For a court to grant a motion to dismiss for failure to state a claim, “it must

appear beyond doubt that the [relator] can prove no set of facts in support of his claim

which would entitle him to relief.” Huffman v. Willoughby, 11th Dist. No. 2007-L-040,

2007-Ohio-7120, ¶18.         With this standard in mind, we shall consider relator’s request

for relief in prohibition first.

        {¶7}    The general purpose of a writ of prohibition is to determine whether a

lower court has subject matter jurisdiction over a particular matter. State ex rel. Corn v.

Russo, 90 Ohio St.3d 551, 554 (2001). The Ohio Supreme Court has observed that a

writ of prohibition will be issued only if the relator can establish the following elements:

(1) that the trial court has the present intent to exercise judicial authority; (2) that the

proposed authority is beyond the scope of the trial court’s jurisdiction; and (3) if the writ




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is denied, the injury will cause an injury for which no other adequate legal remedy

exists. State ex rel. Suburban Constr. Co. v. Skok, 85 Ohio St.3d 645, 646 (1999).

       {¶8}   Regarding the second and third elements, this court has underscored that

the absence of an adequate legal remedy is not required when the lack of judicial

authority to act is patent and unambiguous, i.e., if the lack of jurisdiction is obvious, the

writ will be awarded upon proof of the first two elements alone. State ex rel. Godale v.

Court of Common Pleas, 166 Ohio App.3d 851, 2006-Ohio-2500, ¶6 (11th Dist. 2006)

citing State ex rel. Biros v. Logan, 11th Dist. No. 2003-T-0016, 2003-Ohio-5425, ¶11. If,

however, the lack of jurisdiction is not patent and unambiguous, the fact that a party can

appeal a lower court’s decision precludes the issuance of the writ because, when a

court has general jurisdiction over the subject matter of a case, it has the inherent

authority to decide whether that jurisdiction has been properly invoked in a specific

instance. State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, ¶21.

Hence, “the propriety of a prohibition claim must begin with the question of whether the

purported jurisdictional defect can be deemed patent and unambiguous.” State ex rel.

Feathers v. Hayes, 11th Dist. No. 2006-P-0092, 2007-Ohio-3852, ¶12. In reviewing this

question, this court has held the following standard should be used:

       {¶9}   [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

              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


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              should be allowed to decide the jurisdictional issue. See State ex

              rel. Lee v. Trumbull Cty. Probate Court (Sept. 17, 1999), 11th Dist.

              No. 97-T-0150, 1999 Ohio App. LEXIS 4326. State ex rel. The

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

              2002-Ohio-6477, ¶19

       {¶10} In this case, we find relator has failed to establish the Geauga County

Juvenile Court is patently and unambiguously without jurisdiction.

       {¶11} In In re Young Children, 76 Ohio St.3d 632 (1996), the Supreme Court of

Ohio addressed whether a juvenile court loses jurisdiction to enter dispositional orders

upon expiration of the “sunset” date set forth under R.C. 2151.353(F). The court

answered the question in the negative, concluding that, although sunset date terminates

temporary custody orders that have not been re-filed, it does not affect the juvenile

court’s general jurisdiction. Id. at 638. Rather, the court opined, the juvenile court

retains jurisdiction over the child and may enter further dispositional orders as it deems

necessary to protect the child. Id.

       {¶12} The court underscored that its conclusion “allows the juvenile court to

assess each situation on its merits, and does not mandate the return of children to a

situation from which they originally needed protection solely because the agency

charged with their care missed a filing deadline.” Id. Contrary to the relator’s assertion,

therefore, the trial court does not automatically lose jurisdiction upon the expiration of

the “sunset” date set forth under R.C. 2151.353(F). Instead, the court retains general

jurisdiction to enter further dispositional orders set forth under R.C. 2151.353(A) in

service of a child’s best interests. We therefore find that the juvenile did not patently

and unambiguously lack jurisdiction upon the passing of the sunset date.          That is,


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relator has failed to establish there are no set of facts under which the trial court could

exercise general jurisdiction in the previously-filed dependency action. Relator’s petition

for writ of prohibition therefore fails to state a claim upon which relief can be granted.

       {¶13} We further find relator fails to state a claim upon which relief in mandamus

can be granted. Before a writ of mandamus will lie, a relator must demonstrate that: “(1)

he has a clear legal right to have a specific act performed by a public official; (2) the

public official has a corresponding duty to perform that act; and (3) there is no other

legal remedy that could be pursued to adequately resolve the matter.” State ex rel.

Sanders v. Enlow, 11th Dist. No. 2010-P-0022, 2010-Ohio-5053, ¶14.

       {¶14} Because the trial court does not patently and unambiguously lack

jurisdiction over the open dependency action, relator has neither established he has a

clear legal right to have the matter transferred to Ashtabula County nor that respondent

has a corresponding obligation to do so. Relator has therefore failed to establish the

initial two elements requisite to issuing a writ of mandamus. He has consequently failed

to state a claim upon which relief can be granted.

       {¶15} For the reasons discussed in this opinion, we therefore conclude relator’s

“Petition for Writ of Prohibition or Mandamus” must be dismissed as a matter of law.




TIMOTHY P. CANNON, P.J., CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT,
J., concur.




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