[Cite as State ex rel. Brawley v. Carnes, 2013-Ohio-1945.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE ex rel. OMA LEE BRAWLEY,                           :   PER CURIAM OPINION

                 Relator,                                :
                                                             CASE NO. 2012-P-0147
        - vs -                                           :

HON. THOMAS J. CARNES,                                   :

                 Respondent.                             :


Original Action for Writ of Prohibition.

Judgment: Petition denied.


John B. Ertle, Jr., 19443 Lorain Road, Fairview Park, OH 44126 (For Relator).

Victor V. Vigluicci, Portage County Prosecutor, and Denise L. Smith, Chief Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).



PER CURIAM.

        {¶1}     This cause is upon respondent, Judge Thomas J. Carnes’, motion to

dismiss or, in the alternative, for summary judgment. As the basis for his motion, Judge

Carnes maintains that relator, Oma Lee Brawley, is not entitled to a writ of prohibition in

the underlying guardianship case because, inter alia, she has an adequate remedy at

law via appeal and the Portage County Probate Court has jurisdiction over the matter.

After a review of the applicable law, the facts established by the docket, and the

evidentiary material before this court, summary judgment in favor of respondent is

warranted as a matter of law.
      {¶2}   The underlying case involves the guardianship of Ward Bonnie Brawley.

On November 7, 2012, the Portage County Probate Court held a hearing and appointed

Monnie Brawley as guardian to the ward. On November 9, 2012, relator filed a writ of

prohibition, arguing the Portage County court does not have jurisdiction over the matter

because she has already been appointed as temporary guardian in a Texas court.

Though the Texas case has been dismissed, relator argues that she has appealed the

matter there and, therefore, remains guardian under Texas law.

      {¶3}   Since the filing of this action, the Portage County Probate Court has

continued to exercise jurisdiction and hold hearings on the matter. On November 29,

2012, the court conducted a hearing on relator’s motion for a new trial. The trial court

subsequently denied the motion in a December 19, 2012 entry, the appeal from which is

currently pending before this court in case No. 2013-P-0002. On February 4, 2013, the

trial court held a status hearing wherein it suspended Monnie Brawley’s guardianship

due to a criminal conviction and failure to complete steps to make the ward eligible for

disability services; the court appointed Attorney Patricia Smith as temporary guardian.

More recently, Monnie Brawley moved the trial court on March 22, 2013, to restore his

guardianship authority, the outcome of which is unclear at this time.

      {¶4}   The standard for summary judgment is well established. To prevail on a

motion for summary judgment, the moving party has the initial burden to affirmatively

demonstrate that: (1) there is no genuine issue of material fact to be resolved in the

case; (2) final judgment as a matter of law is warranted; and (3) the nature of the

evidentiary materials, even when viewed in a light most favorable to the non-moving

party, are such that a reasonable person could only reach a conclusion against the non-




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moving party. State ex. rel. Dehler v. Spatny, 11th Dist. No. 2009-T-0075, 2010-Ohio-

3052, ¶26.

       {¶5}   The conditions that must exist to support the issuance of a writ of

prohibition are: (1) the respondent against whom the writ is sought is about to exercise

judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is no

other adequate remedy in the ordinary course at law. State ex rel. McKee v. Cooper, 40

Ohio St.2d 65 (1974), paragraph one of the syllabus.

       {¶6}   First, relator’s legal contention that the availability of an appeal is

immaterial must be addressed.       Concerning this third element, the availability of a

remedy at law is immaterial to the issuance of a writ of prohibition only when a court is

patently and unambiguously without jurisdiction to act; “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. Tucker v. Grendell, 11th Dist. No. 2012-G-3125, 2013-Ohio-539, ¶8.

       {¶7}   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. Id.

       {¶8}   Thus, the initial inquiry is whether the alleged jurisdictional defect can be

deemed patent and unambiguous.

       {¶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


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              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

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

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

              2002-Ohio-6477, ¶19.

       {¶10} “It is a well-settled principle of law that probate courts are courts of limited

jurisdiction and are permitted to exercise only the authority granted to them by statute

and by the Ohio Constitution.” Corron v. Corron, 40 Ohio St.3d 75, 77 (1988). Pursuant

to R.C. 2101.24(A)(1)(e), a probate court in Ohio patently has exclusive subject matter

jurisdiction over guardianship actions. See In re Guardianship of Lavers, 6th Dist. No.

L-11-1044, 2012-Ohio-1668, ¶22; see also State ex rel. Mitseff, 5th Dist. No. 2011 CA

00152, 2011-Ohio-5461, ¶17. (“The probate court has jurisdiction over guardianships

pursuant to statute and further has the power to investigate guardians pursuant to the

probate court’s plenary power.”) Further, pursuant to R.C. 2111.50(A)(1), “[a]t all times,

the probate court is the superior guardian of wards who are subject to its jurisdiction,

and all guardians who are subject to the jurisdiction of the court shall obey all orders of

the court that concern their wards or guardianships.” Thus, the Portage County Probate

Court has patent jurisdiction over this matter.

       {¶11} Relator argues the probate court nevertheless does not have jurisdiction

over the matter because she has already been appointed a temporary guardianship in a

Texas court. Relator recognizes that the temporary guardianship order in Texas was, in

fact, dismissed.   However, relator argues that the order dismissing the temporary


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guardianship has been appealed in Texas. Relator points to Texas Probate Code Sec.

655, which states:     “Pending an appeal from an order or judgment appointing a

guardian, an appointee shall continue to act as guardian and shall continue the

prosecution of a pending suit in favor of the guardianship.” Thus, relator argues, she is

still charged with supervising the ward, and the Portage County court therefore lacks

jurisdiction.

       {¶12} However, we take notice that this appeal was dismissed by the Second

District Court of Appeals of Texas via unpublished memorandum opinion on March 7,

2013. Case No. 02-12-00505-CV. This argument is therefore moot.

       {¶13} Relator further argues the trial court’s pronouncement that its appointment

was until further order of the court is not proper; however, given the above-framed

points, this is a matter that can be addressed in a direct appeal.

       {¶14} As the court is exercising lawful jurisdiction pursuant to statute, and as

there remains a remedy via the ordinary course of law, reasonable minds can come to

but one conclusion: the Portage County Probate Court patently and unambiguously has

jurisdiction over this guardianship case.

       {¶15} Respondent’s summary judgment motion is therefore granted. It is the

order of this court that judgment is hereby entered on relator’s petition for writ of

prohibition in favor of Respondent Judge Thomas J. Carnes.



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




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