Opinion
No. 86-780
Decided May 27, 1987.
Prohibition — Writ not issued where adequate remedy of appeal exists.
APPEAL from the Court of Appeals for Lake County.
Appellant, Stephen L. Smith, d.b.a. SH Oil and Gas Exploration, is a resident of the state of Florida and is engaged in the business of selling fractional interests in oil and gas wells. Appellant was named as a party defendant in a complaint for divorce styled LaDawn Nester v. Daniel Nester et al., No. 85-DR-1004, filed in the Division of Domestic Relations of the Court of Common Pleas of Lake County. Apparently, the plaintiff, LaDawn Nester, and the defendant, Daniel Nester, had an interest in some wells owned by appellant. The interest in the wells was alleged to be a marital asset. Supplementing the complaint were motions seeking to restrain Daniel Nester and SH Oil, under Civ. R. 75, from selling or disposing of any of the assets of the parties during the pendency of the divorce action.
Appellee, Ross D. Avellone, a duly elected judge of the Court of Common Pleas of Lake County, was assigned to hear the Nester divorce action. On September 18, 1985, another judge, sitting for appellee during a temporary absence, granted the motion for a restraining order which, inter alia, restrained appellant from "* * * transferring, conveying, pledging, giving away, encumbering, selling, or disposing of any and all ownership and net revenue interest in the production of any oil and gas wells by SH Oil and Gas Exploration * * *."
In early October, appellant instituted an interpleader action in the Circuit Court of Polk County, Florida. On January 22, 1986, the Florida court issued an order of interpleader directing appellant to deposit all current and future revenues owed to either Daniel or LaDawn Nester into the registry of the court. The Florida court declared that it would distribute the contested funds by giving full faith and credit to the judgment of the Ohio court hearing the Nester divorce action.
On January 13, 1986, appellant filed a motion to modify the court's restraining order. The motion was set for hearing on May 19, 1986, along with a motion to vacate filed January 9, 1986, and a motion to dismiss filed October 31, 1985. Before the hearing notices on the aforementioned motions were issued, appellant instituted the within prohibition action in the Court of Appeals for Lake County on January 13, 1986.
On February 20, 1986, appellee issued a sua sponte judgment entry modifying the earlier restraining order by allowing appellant to carry on all activities excepting those that involved the assets of Daniel and/or LaDawn Nester. On April 17, 1986, the appellate court dismissed appellant's action in prohibition on the grounds that a writ of prohibition may only issue to prevent a court from hearing a matter over which it has no subject matter jurisdiction.
The cause is now before this court upon an appeal as of right.
Sheldon Stein, for appellant.
Ross D. Avellone, pro se.
In order for a writ of prohibition to issue, appellant must establish that appellee is about to exercise judicial power, that the exercise of such judicial power is not legally authorized, and that injury will result for which there is no adequate remedy at law. Schucker v. Metcalf (1986), 22 Ohio St.3d 33, 37, 22 OBR 27, 31, 488 N.E.2d 210, 214; State, ex rel. Johnson, v. Perry County Court (1986), 25 Ohio St.3d 53, 58, 25 OBR 77, 81, 495 N.E.2d 16, 21.
A review of the facts demonstrates that appellant has failed to satisfy these requirements. Appellant currently has a motion pending before the trial court which challenges that court's in personam jurisdiction as to appellant. This motion constitutes an adequate remedy by which appellant may pursue his objections to the trial court's assumption of in personam jurisdiction over him. Generally, a writ of prohibition will not issue against a court having jurisdiction over the subject matter of an action pending before it to deprive such court of the authority vested in it by the laws of Ohio to determine its own jurisdiction as to specific issues raised therein. State, ex rel. Smith, v. Court (1982), 70 Ohio St.2d 213, 24 O.O. 3d 320, 436 N.E.2d 1005, syllabus; State, ex rel. Bd. of Cty. Commrs., v. Court of Common Pleas (1978), 54 Ohio St.2d 354, 8 O.O. 3d 359, 376 N.E.2d 1343; State, ex rel. Houk, v. Court of Common Pleas (1977), 50 Ohio St.2d 333, 4 O.O. 3d 475, 364 N.E.2d 277.
Furthermore, appellant would have the availability of an appeal should the trial court ultimately rule against him. State, ex rel. Smith, supra.
Based upon the foregoing, we find that appellant has an adequate remedy at law and affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.