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State ex rel Haussler v. Walker6/17/2002
ORIGINAL ACTION IN PROHIBITION
The above cause is before the court pursuant to a petition for a writ of prohibition and a motion for summary judgment filed by petitioner, Cheryl Haussler, on February 12, 2002 and a motion to deny summary judgment and dismiss the petition filed by counsel for respondent, Judge William Walker, on March 11, 2002. Haussler is the defendant in a personal injury case; Judge Walker is judge of the Clermont County Court of Common Pleas.
In a civil complaint filed in the Clermont County Court of Common Pleas, the plaintiff, Gerald Butterworth, alleged that on December 19, 1998, Haussler negligently, carelessly, and recklessly collided with his automobile, injuring Butterworth and damaging his car. The complaint was filed December 19, 2000, exactly two years after the incident, by David F. Fessler, Esq. Although Fessler is licensed to practice law in Kentucky, he is not an attorney admitted to practice law in Ohio. The complaint also included the name and attorney number, but not the signature, of Timothy Schneider, Esq., an attorney licensed to practice in Ohio and a law partner of Fessler.
Haussler answered this complaint on January 11, 2001. Upon later discovering that Fessler was not an Ohio-licensed attorney, Haussler filed a motion to dismiss pursuant to Civil Rule 12(B) on September 24, 2001, claiming the court lacked jurisdiction. On October 31, 2001, Butterworth filed an amended complaint signed by Schneider. Haussler answered the amended complaint, raising the affirmative defense that the court lacked subject matter jurisdiction over both the original and amended complaints.
Judge Walker held that the lower court did have jurisdiction over both person and subject matter. Judge Walker denied Haussler's motion because the lack of jurisdiction defense was not timely raised. Upon a motion to reconsider, the court reaffirmed its subject matter jurisdiction and re-framed the issue in terms of "exercise of jurisdiction" as opposed to want of jurisdiction.
Haussler argues that the filing of a complaint by a non-attorney renders the complaint a legal nullity. Therefore, he maintains that the invalid complaint did not properly invoke the jurisdiction of the lower court. Haussler now asks this court to issue a writ of prohibition to prevent the lower court from proceeding in this matter. The writ of prohibition would presumably restrain the lower court from usurping or exceeding jurisdiction that it does not possess.
In order for a writ of prohibition to lie, a party must establish that: (1) the lower court is about to exercise judicial authority, (2) the exercise of authority is not authorized by law, and (3) the party will have no other adequate remedy in the ordinary course of law if the writ of prohibition is denied. State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 74, 1998-Ohio-275.
The writ of prohibition has been described as an "extraordinary remedy which is customarily granted with caution and restraint, * * * issued only in cases of necessity arising from the inadequacies of other remedies." State ex rel. Henry v. Britt (1981), 67 Ohio St.2d 71, 73. The purpose of the writ is to restrain lower courts from exceeding their jurisdiction.
In examining whether a lower court has exercised authority not authorized by law, prohibition "tests and determines 'solely and only' the subject matter jurisdiction" of the lower court. Tubbs Jones, 84 Ohio St.3d at 73, quoting State ex rel. Eaton Corp. v. Lancaster (1988), 40 Ohio St.3d 404, 409. The error must "patently and unambiguously deprive the trial court of jurisdiction to hear case." Id. at 74. Courts ha
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