[Cite as Johnson v. Geauga Cty. Court of Common Pleas, 2015-Ohio-210.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                    GEAUGA COUNTY, OHIO


CINSEREE JOHNSON,                                     :          OPINION

        Relator,                                      :
                                                                 CASE NO. 2014-G-3206
   - vs -                                             :

GEAUGA COUNTY COURT                                   :
OF COMMON PLEAS,

        Respondent.                                   :


Original Action for a Writ of Prohibition.

Judgment: Petition dismissed.


Cinseree Johnson, pro se, 12450 Merritt Road, Chardon, OH 44024 (Relator).


James R. Flaiz, Geauga County Prosecutor, and Rebecca F. Schlag, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For
Respondent).



THOMAS R. WRIGHT, J.,

        {¶1}     Relator, Cinseree Johnson, moves this court for leave, as a designated

vexatious litigator, to maintain an original action in prohibition against respondent, the

Geauga County Court of Common Pleas. As the primary basis for her petition, relator

asserts that respondent must be enjoined from exercising jurisdiction in the underlying

criminal case because it lacks territorial jurisdiction over the alleged crimes. According

to her, respondent has no authority to go forward because, if she committed any crimes,
they occurred in Cuyahoga County, not Geauga County. For the following reasons, the

leave is denied.

       {¶2}    As an initial point, the dissenting opinion asserts that a sentencing

judgment has been issued in the underlying criminal action, thereby rendering the

merits of relator’s prohibition petition moot. However, if such a judgment does exist, a

copy of it has not been introduced into the record of this proceeding. Specifically,

respondents have not moved to dismiss this case on the grounds of mootness, and

attached a certified copy of the purported judgment to the motion.

       {¶3}    It is important to note that this proceeding is not a direct appeal, but

instead is an original action in prohibition. In such an action, this court is not engaging

in appellate review, but is acting as a trial court. In turn, as a trial court, the scope of our

ability to take judicial notice is limited:

       {¶4}    “‘A trial court may not take judicial notice of prior proceedings in the court,

but may only take judicial notice of prior proceedings in the immediate case.’ Diversified

Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision (1982), 7 Ohio App.3d 157, 159,

* * *. See, also, D & B Immobilization Corp. v. Dues (1997), 122 Ohio App.3d 50, 53,

* * *; In re Knotts (1996), 109 Ohio App.3d 267, 271, * * *; Woodman v. Tubbs Jones

(1995), 103 Ohio App.3d 577, 580, * * *; State v. Velez (1991), 72 Ohio App.3d 836,

838, * * *; Kiester v. Ehler (1964), 9 Ohio App.3d 52, 56, * * *; Burke v. McKee (1928),

30 Ohio App. 236, 238, * * *. ‘The rationale for this holding is that, if a trial court takes

notice of a prior proceeding, the appellate court cannot review whether the trial court

correctly interpreted the prior case because the record of the prior case is not before the

appellate court.’ Dues, supra, at 53. See Deli Table, Inc. v. Great Lakes Mall (Dec. 31,

1996), Lake App. No. 95-L-012, 1996 Ohio App. LEXIS 5930, at 13; Phillips v. Rayburn


                                                2
(1996), 113 Ohio App.3d 374, 379, 1996 Ohio App. LEXIS 570.”                State v. Blaine, 4th

Dist. Highland No. 03CA9, 2004-Ohio-1241, ¶17.

       {¶5}    Even if the separate prior case was heard by the identical trial court, that

court cannot take judicial notice of any determination made in the separate case.

Rather, any detail about the separate case can only be established through the

submission of evidence. In re Pyle, 7th Dist. Belmont No. 91-B-27, 1992 Ohio App.

LEXIS 2263, *3 (May 6, 1992).

       {¶6}    Given that the criminal action against relator is a separate case from this

original action, this court cannot take judicial notice of any new decisions in the criminal

case. In the absence of any evidence from the parties regarding new proceedings in

the criminal case, the scope of our review is limited to the allegations in relator’s

prohibition petition. Thus, we will address the merits of relator’s motion for leave to

proceed.

       {¶7}    “As a general proposition, a writ of prohibition will be issued only when the

relator can demonstrate that: (1) a lower court or judicial officer is preparing to exercise

its judicial authority in a matter; (2) the proposed use of that authority is not permissible

under the law; and (3) there is no alternative legal remedy the relator could employ to

achieve the identical results. State ex rel. The Leatherworks Partnership v. Stuard, 11th

Dist. No. 2002-T-0017, 2002-Ohio-6477, at ¶15. As to the second and third elements

for the writ, this court has emphasized that the absence of an adequate legal remedy is

not necessary when the lack of judicial authority to act is patent and unambiguous; i.e.,

if the lack of jurisdiction is clear, the writ will lie upon proof of the first two elements only.

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

However, if the lack of jurisdiction is not patent and unambiguous, the fact that a party


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can appeal a lower court’s decision bars 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, * * *, at ¶21.” State ex rel.

Godale v. Geauga Cty. Ct. of Common Pleas, Judicial Branch, 166 Ohio App.3d 851,

2006-Ohio-2500, ¶6 (11th Dist.). See, also, State ex rel. Swanson v. Hague, 11th Dist.

Ashtabula No. 2009-A-0053, 2010-Ohio-4200, ¶32-33.

       {¶8}   As to the standard to be applied in determining whether the alleged lack of

jurisdiction is patent and unambiguous:

       {¶9}   “‘* * * [I]f there is 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 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. The Leatherworks Partnership v. Stuard, 11th Dist. No. 2002-T-0017, 2002-Ohio-

6477, at ¶19.” McGhan v. Vettel, 11th Dist. Ashtabula No. 2008-A-0036, 2008-Ohio-

6063, ¶52.

       {¶10} In her prohibition petition, relator alleges that she was charged and tried

on two fifth-degree felonies. Given that a common pleas court has original jurisdiction

over all felony cases, see State v. Hobbs, 9th Dist Summit No. 25379, 2011-Ohio-3192,

¶25, respondent has general jurisdiction over the subject matter of the underlying case.

Furthermore, the determination of whether respondent has territorial jurisdiction over the

two alleged crimes will turn upon the specific facts proven by the state at trial. As a


                                              4
result, respondent has the authority to make the initial determination on the territorial

jurisdiction issue, and appellant has an adequate legal remedy through a direct appeal

of her conviction and sentence.

       {¶11} As a separate basis, relator asserts that respondent does not have

personal jurisdiction over her because she is a resident of Cuyahoga County, not

Geauga County. However, a common pleas court’s acquisition of personal jurisdiction

over a criminal defendant does not depend upon the defendant’s county of residence;

instead, personal jurisdiction exists when the defendant has been properly served with

the indictment. See Pishok v. Kelly, 11th Dist. Trumbull No. 2008-T-0093, 2009-Ohio-

287, ¶15. Thus, like relator’s “territorial jurisdiction” allegation, her “personal jurisdiction”

allegation is legally insufficient to state a viable claim for a writ of prohibition. To this

extent, her entire prohibition petition is subject to dismissal under Civ.R. 12(B)(6).

       {¶12} After a person has been designated a vexatious litigator, she cannot

institute new proceedings before an appellate court unless that court is satisfied that

there are reasonable grounds for the new proceeding and no abuse of process will take

place if the matter goes forward. Karnofel v. Girard Police Dept., 11th Dist. Trumbull

No. 2013-T-0093, 2013-Ohio-5270, ¶8, quoting R.C. 2323.52(F)(2).                In light of our

conclusion that relator’s petition fails to state a viable claim for the writ, she has not

established reasonable grounds to maintain the action. Therefore, since relator cannot

satisfy both requirements for leave under R.C. 2323.52(F)(2), leave to proceed is

denied.



TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


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                                  ____________________



COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶13} The following eight cases have been filed by Cinseree Johnson and are

currently pending in this court: Johnson v. Geauga County Court of Common Pleas,

11th Dist. Geauga No. 2014-G-3206 (writ of prohibition); Johnson v. Summit County

Court of Common Pleas, Psycho Diagnostic Clinic, et al., 11th Dist. Geauga No. 2014-

G-3207 (writ of prohibition); State v. Johnson, 11th Dist. Geauga No. 2014-G-3215

(delayed appeal and notice of voluntary dismissal); State v. Johnson, 11th Dist. Geauga

No. 2014-G-3219 (appeal); State v. Johnson, 11th Dist. Geauga No. 2014-G-3223

(appeal); State v. Johnson, 11th Dist. Geauga No. 2014-G-3229 (appeal); State v.

Johnson, 11th Dist. Geauga No. 2014-G-3230 (appeal); and, State v. Johnson, 11th

Dist. Geauga No. 2014-G-3231 (appeal). All relate to the same underlying criminal

action, State v. Johnson, Geauga C.P. No. 12C000142. Ms. Johnson requests various,

and often conflicting, relief from this court. All were filed before the trial court sentenced

her.

       {¶14} The majority denies the petitions for writs finding Ms. Johnson cannot

meet the standards for obtaining leave to file the petitions. It dismisses the appeals

because appellant is a vexatious litigator, and has not sought leave of this court to

appeal. R.C. 2323.52(D)(3).

       {¶15} I am aware that the courts of Ohio have held that once a person is

designated a vexatious litigator, he or she must seek leave of court to pursue any action

in a court of appeals, even in the criminal setting. See, e.g., Baumgartner v. Duffey,

121 Ohio St.3d 356, 2009-Ohio-1218, ¶3. I respectfully question this position. The


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vexatious litigator statute, by its terms, is directed at people who “habitually,

persistently, and without reasonable grounds [engage] in vexatious conduct in a civil

action or actions.” (Emphasis added.) R.C. 2323.52(A)(3). I agree the restrictions

placed on vexatious litigators are not reserved simply for civil actions, by the plain

language of the statute. See, e.g., R.C. 2323.52(D)(3). However, “[i]t is a cardinal rule

of statutory construction that a statute should not be interpreted to yield an absurd

result.” Mishr v. Poland Bd. of Zoning Appeals, 76 Ohio St.3d 238, 240 (1996). I do not

see how applying the restrictions of the vexatious litigator statute to criminal

proceedings, instituted by the state against an individual, forwards the obvious purpose

of the statute, which is to prevent frivolous civil actions.

       {¶16} As the majority notes the trial court filed its judgment entry of sentence

December 8, 2014. This is a final appealable order. Consequently, I would dismiss the

petitions for writs as moot, accept the various appeals as prematurely filed under App.R.

4, and consolidate them for disposition. I would further appoint appellant counsel for

purposes of appeal.

       {¶17} I respectfully dissent.




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