State ex rel. Mancino v. Tuscarawas Cty. Court of Common Pleas (Slip Opinion) , 2017 Ohio 7528 ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Mancino v. Tuscarawas Cty. Court of Common Pleas, Slip Opinion No. 2017-Ohio-7528.]
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SLIP OPINION NO. 2017-OHIO-7528
THE STATE EX REL. MANCINO, APPELLANT, v. TUSCARAWAS COUNTY COURT
OF COMMON PLEAS ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Mancino v. Tuscarawas Cty. Court of Common
Pleas, Slip Opinion No. 2017-Ohio-7528.]
Prohibition—Contempt proceedings against attorney in civil proceeding—Writ
sought to prevent a hearing on a motion to show cause—Attorney failed to
establish trial court’s lack of jurisdiction—Court of appeals’ denial of writ
affirmed.
(No. 2016-1502—Submitted June 6, 2017—Decided September 12, 2017.)
APPEAL from the Court of Appeals for Tuscarawas County,
No. 2016 AP 05 0029, 2016-Ohio-5763.
________________
Per Curiam.
{¶ 1} Appellant, attorney Paul Mancino Jr., appeals the dismissal of his
petition for a writ of prohibition to stop appellees, the Tuscarawas County Court of
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Common Pleas and Judge Elizabeth L. Thomakos, from holding a hearing on a
motion to show cause. Because the court of appeals properly concluded that the
common pleas court had jurisdiction over the motion, we affirm.
Background
{¶ 2} In 1999, Mancino defended Samuel Geneva in a civil lawsuit in the
Tuscarawas County Common Pleas Court. In that civil suit, Judge Thomakos
ordered the attachment of $37,500 that Geneva had transferred to Mancino, directed
that the money be returned to Geneva’s bank account, and ordered Geneva not to
remove the money from his account.
{¶ 3} In 2014, Geneva passed away and an estate was opened in his name
in probate court. See In re Estate of Geneva, 5th Dist. Tuscarawas No. 2016 AP 02
0013, 2016-Ohio-5382, ¶ 4. In 2015, the probate court “issued an order finding the
Estate of Geneva is the owner of whatever remains of the $37,500 transferred to
[Mancino] in 1999.” Id. at ¶ 5. The order specified that the executor of the estate,
James Weaver,1 had “a duty to recover this estate asset.” Id.
{¶ 4} In 2016, Weaver initiated contempt proceedings against Mancino in
the earlier civil proceeding. He alleged that Mancino had failed to comply with the
court’s 1999 orders to transfer the $37,500 and sought a show-cause order. On May
10, 2016, the trial court ordered Mancino to appear at a hearing and show cause for
his noncompliance.
{¶ 5} On May 18, 2016, Mancino filed the present action for a writ of
prohibition in the Fifth District Court of Appeals, arguing that the trial court lacked
jurisdiction to hold the show-cause hearing. Appellees filed an answer and a
motion for judgment on the pleadings under Civ.R. 12(C) or, in the alternative, to
dismiss for failure to state a claim upon which relief can be granted under Civ.R.
12(B)(6).
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Weaver was also Geneva’s codefendant in the earlier civil lawsuit.
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{¶ 6} On September 7, 2016, the court of appeals granted the motion to
dismiss. 2016-Ohio-5763 at ¶ 12. The court held that the trial court had jurisdiction
over the contempt proceedings and that Mancino had an adequate remedy at law by
way of appeal. Id. at ¶ 7-8, 11. The court also noted that Mancino could raise his
other arguments as defenses in the contempt proceeding. Id. at ¶ 9-10.
{¶ 7} Mancino appeals, asserting two propositions of law. He argues that
appellees lack jurisdiction over him because he was not a party to the underlying
civil action and was not subject to the court’s 1999 orders. He also argues that
Weaver lacks standing to file the motion to show cause. Appellees filed a brief in
opposition, urging affirmance.
Analysis
{¶ 8} We review a lower court’s decision to dismiss under Civ.R. 12(C) de
novo.2 State ex rel. Ohio Civil Serv. Emps. Assn. v. State, 146 Ohio St. 3d 315,
2016-Ohio-478, 56 N.E.3d 913, ¶ 12. Dismissal under Civ.R. 12(C) is appropriate
when there are no material disputes of fact and the court determines, construing all
material allegations in the complaint as true, that the plaintiff or relator can prove
no set of facts that would entitle him or her to relief. State ex rel. Midwest Pride
IV, Inc. v. Pontious, 75 Ohio St. 3d 565, 570, 664 N.E.2d 931 (1996).
{¶ 9} To be entitled to a writ of prohibition, Mancino would have to
establish three elements: the exercise of judicial power, the lack of authority for
the exercise of that power, and the lack of an adequate remedy in the ordinary
course of law. State ex rel. Elder v. Camplese, 144 Ohio St. 3d 89, 2015-Ohio-3628,
40 N.E.3d 1138, ¶ 13. But even if an adequate remedy exists, a writ may issue if
2
The court of appeals stated that it was dismissing for failure to state a claim. 2016-Ohio-5763 at
¶ 12. However, because appellees had already filed an answer, we must view the ruling as having
granted a motion for a judgment on the pleadings under Civ.R. 12(C). State ex rel. Midwest Pride
IV, Inc. v. Pontious, 75 Ohio St. 3d 565, 569, 664 N.E.2d 931 (1996), quoting Lin v. Gatehouse
Constr. Co., 84 Ohio App. 3d 96, 99, 616 N.E.2d 519 (1992) (“ ‘[A] motion to dismiss filed after the
pleadings have closed * * * is appropriately considered a motion for judgment on the pleadings
pursuant to Civ.R. 12 (C)’ ”).
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the lack of jurisdiction is patent and unambiguous. State ex rel. V.K.B. v. Smith,
138 Ohio St. 3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 9.
{¶ 10} A court has “statutory and inherent powers ‘* * * to punish [the]
disobedience of its orders with contempt proceedings.’ ” (Ellipsis sic.) State ex
rel. Mancino v. Campbell, 66 Ohio St. 3d 217, 220, 611 N.E.2d 319 (1993), quoting
Zakany v. Zakany, 9 Ohio St. 3d 192, 459 N.E.2d 870 (1984), syllabus. Thus, the
court of appeals correctly held that the common pleas court and Judge Thomakos
had subject-matter jurisdiction over the contempt proceeding.
{¶ 11} Mancino nonetheless contends that the common pleas court lacked
jurisdiction to issue the show-cause order because it lacked personal jurisdiction
over him. “[I]ssuance of a writ of prohibition based on the alleged lack of personal
jurisdiction is, even more than a claimed lack of subject-matter jurisdiction, an
‘extremely rare occurrence.’ ” State ex rel. Suburban Constr. Co. v. Skok, 85 Ohio
St.3d 645, 647, 710 N.E.2d 710 (1999), quoting Clark v. Connor, 82 Ohio St. 3d
309, 315, 695 N.E.2d 751 (1998). In the “extremely rare cases where we issued the
writ, the lack of personal jurisdiction was ‘premised on a complete failure to
comply with constitutional due process.’ ” Id., quoting Fraiberg v. Cuyahoga Cty.
Court of Common Pleas, 76 Ohio St. 3d 374, 378, 667 N.E.2d 1189 (1996).
{¶ 12} Mancino presents three arguments for the trial court’s lack of
jurisdiction, none of which establishes complete noncompliance with constitutional
due process.
{¶ 13} First, he objects that the court lacks jurisdiction to issue a contempt
order against him because, although he represented a party to the underlying civil
action, he was not a party to the action. But a court has personal jurisdiction over
attorneys practicing before it. When an attorney is the counsel of record in a case,
“the court has personal jurisdiction over her for purposes of enforcing its orders.”
In re Contempt of Marshall, 8th Dist. Cuyahoga No. 88780, 2007-Ohio-6639, ¶ 20
(rejecting an attorney’s argument that the trial court lacked jurisdiction over her
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because she was not a party to the action); see also In re Kinross, 84 Ohio App. 3d
335, 340, 616 N.E.2d 1128 (1st Dist.1992) (trial court had personal jurisdiction
over an attorney who practiced within its jurisdictional boundaries and had attended
hearings before the court and was subject to its subpoena power). Thus, here, the
trial court had jurisdiction over Mancino as counsel for Geneva.
{¶ 14} Second, Mancino asserts that he was not accorded due process of
law before the trial court issued its 1999 orders and therefore was not subject to
them. According to Mancino, he received very little, if any, notice of the trial
court’s 1999 hearing on the funds and had no opportunity to be heard. As a result,
he contends the trial court’s orders from that hearing were invalid. Mancino can
raise this due-process challenge, as well as any additional challenges to the trial
court’s contempt order, on appeal. See State ex rel. Mancino v. Campbell, 66 Ohio
St.3d at 220, 611 N.E.2d 319.
{¶ 15} Finally, Mancino contends that Weaver lacked standing to file the
motion to show cause because Weaver did not have a personal stake in the contempt
proceeding. But that is factually incorrect. Weaver did not file the motion until
after a probate court had specifically ordered him, as the executor of Geneva’s
estate, to recover “whatever remains of the $37,500 transferred to [Mancino] in
1999.” In re Estate of Geneva, 2016-Ohio-5382, at ¶ 5.
{¶ 16} In light of the above, Mancino has failed to establish the trial court’s
lack of jurisdiction, let alone a patent and unambiguous lack of jurisdiction, to rule
on the contempt motion. We therefore affirm the judgment of the court of appeals
dismissing Mancino’s petition for a writ of prohibition.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
_________________
Paul Mancino Jr., pro se.
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Ryan Styer, Tuscarawas County Prosecuting Attorney, and Robert R.
Stephenson III, Assistant Prosecuting Attorney, for appellees.
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