[Cite as State ex rel. Wood v. Olsztyn, 2012-Ohio-607.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 97928




                             STATE OF OHIO, EX REL.,
                                  JOHN WOOD
                                                                RELATOR

                                                          vs.

           MAGISTRATE CHRISTOPHER E. OLSZTYN,
                        ET AL.
                                                                RESPONDENTS




                                            JUDGMENT:
                                            WRIT DENIED


                                            Writ of Prohibition
                                            Motion No. 452171
                                            Order No. 452210
     RELEASE DATE: February 10, 2012
FOR RELATOR

John Wood
281 Corning Drive
Bratenahl, OH 44108


ATTORNEY FOR RESPONDENTS

William D. Mason
Cuyahoga County Prosecutor
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

         {¶1} On February 9, 2012, the relator, John Wood, commenced this prohibition

action against Magistrate Christopher Olsztyn and Judge Peter J. Corrigan, to prohibit

them from exercising jurisdiction over a discovery dispute and order, which would

require Wood to disclose material he claims is protected by the client-counsel privilege.

Wood maintains that the respondents should not exercise jurisdiction over that discovery

matter because Wood filed a notice of appeal with the Supreme Court of Ohio in

December 2011.       Wood also seeks an alternative writ and an order staying discovery.

For the following reasons, this court dismisses the applications for a writ of prohibition

and an alternative writ of prohibition.

         {¶2} In the underlying case, Wood v. Fillinger, Cuyahoga County C.P. No.

CV-713348, the magistrate ordered Wood, an attorney, to explain why he did not have a

conflict of interest in this case. In response, Wood filed materials under seal. Then,

other parties to the underlying case sought discovery of those materials and filed motions

to compel.      Wood filed a motion for confidentiality, which the trial court denied on

July 7, 2011. Wood appealed that decision to this court, Wood v. Fillinger, 8th Dist. No.

97032.     This court dismissed the appeal for lack of a final, appealable order.   Wood

moved for reconsideration, which this court denied.     He then appealed to the Supreme
Court of Ohio, Case No. 11-2017.      That court has not yet ruled on the memorandum in

support of jurisdiction.

       {¶3} On January 23, 2012, the respondent magistrate ordered Wood to provide

discovery relating the disputed material by Monday, February 13, 2012. Wood filed a

motion to vacate that order, but the trial court has not yet ruled on the motion.    Wood

then commenced this prohibition action.

       {¶4} 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 27 (1940), and Reiss v. Columbus Municipal Court,

76 Ohio Law Abs. 141, 145 N.E.2d 447 (1956). 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 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), and State ex

rel. Bradford v. Trumbull Cty. Court, 64 Ohio St.3d 502, 1992-Ohio-116, 597 N.E.2d

116. Moreover, the court has discretion in issuing the writ of prohibition. State ex rel.

Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).

       {¶5} Wood does not cite any authority for the proposition that the appeal to the

supreme court divests the trial court of jurisdiction.   Rather, he argues that “all matters

ordered therein may be affected by a ruling of the Ohio Supreme Court in the matter now

before it * * *.”   (Paragraph 21 of the Complaint.)

       {¶6} In Ellison v. Burnside, 79 Ohio App.3d 542, 607 N.E.2d 891 (1992), this

court addressed a nearly identical issue.       The relator had appealed an order that

compelled his deposition despite a claim of attorney conflict of interest. This court

dismissed the appeal for lack of a final, appealable order, and Ellison appealed to the
Supreme Court of Ohio.      While the appeal was pending and before the supreme court

had ruled on the motion to certify the record, Ellison sought a writ of prohibition to

prevent the deposition. This court sua sponte dismissed the complaint because Ellison

had not established that the trial court was patently and unambiguously without

jurisdiction.   Indeed, the Supreme Court of Ohio has indicated that the lower courts

retain jurisdiction over the matter until it grants the motion to certify the record or

otherwise accepts the appeal. State v. Murphy, 49 Ohio St.3d 293, 551 N.E.2d 1292

(1990); Cincinnati v. Alcorn, 122 Ohio St. 294, 171 N.E. 330 (1930). “The jurisdiction

of the Court of Appeals over a cause pending or determined in such court is not

suspended by the mere filing of a motion in this court to require such Court of Appeals to

certify its record.”   Id. at paragraph three of the syllabus. See also Bell v. Mt. Sinai

Med. Ctr., 8th Dist. No. 63230, 1994 WL 245900 (June 2, 1994); and Campbell v.

Campbell, 6th Dist. L-90-105, 1991 WL 127573 (July 3, 1991).

       {¶7} Accordingly, this court denies the application for a writ of prohibition, the

application for an alternative writ, and the motion for stay.   Relator to pay costs. This

court directs the Clerk of the Eighth District Court of Appeals to serve upon the parties

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

       {¶8} Writ denied.



________________________________
SEAN C. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
