Summary
In Rice, the plaintiff sought to enjoin the city of Westlake from interfering with the maintenance of a fence that he had erected.
Summary of this case from Hosta v. ChryslerOpinion
No. 90-382
Submitted June 26, 1991 —
Decided October 9, 1991.
APPEAL from the Court of Appeals for Cuyahoga County, No. 58932.
In 1985, the city of Westlake cited Brian Rice, appellant, for constructing and maintaining a fence that did not conform to Westlake's zoning code. Rice asked the Westlake Board of Zoning Appeals for a variance for the fence, but the board refused to grant one. After a second hearing, the board declared the fence to be non-conforming.
Rice appealed this finding to the Cuyahoga County Common Pleas Court, which dismissed the appeal for failure to comply with a local court rule. The court also denied a motion for relief from judgment.
Then, Rice filed a complaint for declaratory judgment in Cuyahoga County Common Pleas Court and sought to enjoin Westlake from interfering with his maintenance of the fence. The case was assigned to Judge James J. McGrath, appellee.
The city evidently asked for a dismissal of the complaint. McGrath, finding that the prior administrative action was res judicata, dismissed the complaint with prejudice.
Rice appealed this dismissal to the court of appeals, but the court affirmed the dismissal and apparently returned the case to McGrath. Five months later, McGrath, on Westlake's motion, found Rice in contempt of McGrath's order (that dismissed the declaratory judgment action) "in fact or in the broad spectrum of the ruling." McGrath, after a hearing, ordered Rice to remove the fence or allow Westlake to remove the fence at Rice's expense.
Rice then filed a complaint for a writ of prohibition in the court of appeals to prevent McGrath from taking further action other than vacating the contempt order. The court of appeals denied the writ, ruling that Rice had an adequate remedy at law by appealing the contempt order.
The matter is before this court upon an appeal as of right.
Crede Calhoun, for appellant.
Stephanie Tubbs Jones, Prosecuting Attorney, and Jerome E. Dowling, for appellee.
"For a writ of prohibition to issue the relator must establish that (1) the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial authority, (2) the authority is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State, ex rel. Tollis, v. Court of Appeals (1988), 40 Ohio St.3d 145, 147, 532 N.E.2d 727, 729." State, ex rel. Carriger, v. Galion (1990), 53 Ohio St.3d 250, 560 N.E.2d 194, 195.
Under Zakany v. Zakany (1984), 9 Ohio St.3d 192, 9 OBR 505, 459 N.E.2d 870, syllabus, a court has statutory and inherent powers "* * * to punish the disobedience of its orders with contempt proceedings." Moreover, under Manrow v. Court of Common Pleas of Lucas Cty. (1985), 20 Ohio St.3d 37, 20 OBR 37, 485 N.E.2d 713, appealing a contempt order, pursuant to R.C. 2705.09, is an adequate remedy at law which will result in denial of the writ.
However, according to Ohio Dept. of Adm. Serv., Office of Collective Bargaining v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48, 562 N.E.2d 125, syllabus:
"When a court patently and unambiguously lacks jurisdiction to consider a matter, a writ of prohibition will issue to prevent assumption of jurisdiction regardless of whether the lower court has ruled on the question of its jurisdiction." (Citations omitted.)
Furthermore, in State, ex rel. Easterday, v. Zieba (1991), 58 Ohio St.3d 251, 569 N.E.2d 1028, we held that a judge loses his authority to proceed in a matter when he unconditionally dismisses it. Thus, such judge is without jurisdiction whatsoever to act, and a writ will issue to prohibit him from taking any further action in the case.
Based upon the above authority, McGrath, having unconditionally dismissed the underlying case, patently and unambiguously lacked jurisdiction over it. Accordingly, we reverse the judgment of the court of appeals and allow the writ.
Judgment reversed and writ allowed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.