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S/O ex rel Jurczenko v. Cleveland Municipal Court9/6/2001
hallenging 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 District Board of Education v. Portage County Court of Common Pleas (1997), 78 Ohio St.3d 489, 678 N.E.2d 1365 and State ex rel. Bradford v. Trumbull County Court (1992), 64 Ohio St.3d 502, 597 N.E.2d 116.
In the present case, the affirmative defense of lack of capacity to sue does not deprive the respondents of jurisdiction. Rather, it is an issue of law which, if necessary, is remediable on appeal. In State ex rel. LTV Steel Company v. Gwin (1992), 64 Ohio St.3d 245, 594 N.E.2d 616, the Supreme Court of Ohio ruled that affirmative defenses, such as standing, are issues which are appealable as error and do not attack a court's jurisdiction. Mr. Jurczenko's reliance on his pertinent authority is misplaced and undermines his position. Mack Construction Development Corporation v. Austin Smith Construction Company (1989), 65 Ohio App.3d 402, 583 N.E.2d 1384, identifies the lack of capacity to sue as an affirmative defense and addresses the issue on direct appeal, rather in a writ of prohibition. State ex rel. Bohlman v. Judge Terrence O'Donnell (Jan. 21, 1993), Cuyahoga App. No. 64388, unreported, reversed (1994), 68 Ohio St.3d 496, 628 N.E.2d 1367, concerned the specifics of a medical malpractice statute of limitations which was subsequently declared unconstitutional. State ex rel. National Employee Benefit Services, Inc. v. Court of Common Pleas of Cuyahoga County (1990), 49 Ohio St.3d 49, 550 N.E.2d 941 is distinguishable and unpersuasive because it rests on the monetary jurisdiction of the municipal court, not an affirmative defense. Thus, Mr. Jurczenko has failed to raise even a doubt that the defense of lack of capacity to sue might affect the jurisdiction of the respondents.
Mr. Jurczenko in his prayer also asked for the issuance of an alternative writ to stop the trial of the Association's second cause of action scheduled for August 20, 2001. Aside from the fact that he did not establish the grounds for an alternative writ, Mr. Jurczenko also failed to make a separate application for it as required by Local Rule 45(B)(2).
Accordingly, the court denies the request for an alternative writ and dismisses this writ action. Relator to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).
Writ Dismissed.
ANN DYKE, J., and FRANK D. CELEBEZZE, JR., J., CONCUR.
PATRICIA ANN BLACKMON, JUDGE
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