State ex rel. Kreps v. Christiansen

[This opinion has been published in Ohio Official Reports at 

88 Ohio St.3d 313

.]




   THE STATE EX REL. KREPS, APPELLANT, v. CHRISTIANSEN, JUDGE, ET AL.,
                                       APPELLEES.
           [Cite as State ex rel. Kreps v. Christiansen, 

2000-Ohio-335

.]
Court of appeals’ dismissal of relator’s complaint for extraordinary relief in
        mandamus, prohibition, and procedendo affirmed—Sanctions imposed for
        frivolous appeal pursuant to S.Ct.Prac.R. XIV(5).
      (No. 99-1682—Submitted February 9, 2000—Decided April 5, 2000.)
       APPEAL from the Court of Appeals for Lucas County, No. L-99-1217.
                                  __________________
        {¶ 1} This case involves various pro se actions filed by appellant, Gene A.
Kreps, an attorney. In February 1993, Kreps filed a complaint in the Toledo
Municipal Court against Gregory and Robin Pesina for breach of a rental
agreement. Kreps sought an estimated five thousand dollars for damages to the
rental property and unpaid rent and water bills. The Pesinas filed a counterclaim
alleging that Kreps had failed to return their $350 security deposit and requesting
double damages and attorney fees. Following a bench trial, the municipal court
granted the Pesinas’ motion to dismiss Kreps’s complaint and entered judgment in
favor of the Pesinas for $2,325 on their counterclaim. The court of appeals affirmed
the judgment. Kreps v. Pesina (Aug. 11, 1995), Lucas App. No. L-94-212,
unreported, 

1995 WL 479456

.
        {¶ 2} In September 1995, after the Pesinas initiated garnishment
proceedings to collect their judgment, Kreps filed a motion for relief from judgment
in which he claimed that the transcript of proceedings previously transmitted to the
court of appeals was incorrect. The municipal court vacated one nunc pro tunc
judgment awarding attorney fees incurred by the Pesinas after June 19, 1994, but
denied the remainder of Kreps’s motion attacking the original judgment. On
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appeal, the court of appeals affirmed the judgment and also awarded the Pesinas
their appellate attorney fees as costs. Kreps v. Pesina (Aug. 2, 1996), Lucas App.
No. L-95-377, unreported, 

1996 WL 430846

, discretionary appeal not allowed
(1996), 

77 Ohio St.3d 1489

, 

673 N.E.2d 147

. The court of appeals held that Kreps
should have raised his claim about a defective transcript via motion under App.R.
9 while his previous appeal was pending.
       {¶ 3} After the filing of more postjudgment motions, in November 1996 and
January 1997, Kreps filed motions for the reassignment of a new judge to the
municipal court case. Kreps attached an affidavit to his second motion in which he
claimed that appellee Judge Francis C. Restivo, the municipal court judge presiding
over his case, was biased against him. On February 12, 1997, Judge Restivo issued
an entry ordering the clerk to forward the motions for reassignment to the Lucas
County Court of Common Pleas, and indicating that he would not rule on pending
motions for relief from judgment and additional attorney fees. Judge Restivo also
ordered Kreps to pay the amount owed on the previously appealed judgment.
       {¶ 4} Successive presiding judges of the Lucas County Court of Common
Pleas denied Kreps’s affidavits of disqualification against Judge Restivo, and on
October 20, 1998, Judge Restivo denied Kreps’s motion for relief from judgment,
granted the Pesinas’ motion for relief from judgment, and granted an additional
award of attorney fees to the Pesinas in the amount of $3,125. On October 26,
1998, Kreps filed yet another affidavit of disqualification against Judge Restivo.
Appellee Judge Thomas J. Osowik subsequently took over the case for Judge
Restivo and issued a May 4, 1999 order for Kreps to pay the Pesinas’ counsel.
       {¶ 5} In a separate proceeding, on January 23, 1997, Kreps filed a complaint
in the Lucas County Court of Common Pleas alleging that the Pesinas, their
attorneys, and various Toledo officials had conspired to change the transcript of the
municipal court proceeding in his previous appeal. The Pesinas’ attorney filed a
counterclaim for defamation against Kreps. The defendants filed a motion to




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                               January Term, 2000




dismiss. In June 1997, the common pleas court issued an opinion granting the
defendants’ motion and dismissing the complaint. The entry did not expressly rule
on the counterclaim. On August 26, 1997, the common pleas court denied Kreps’s
motion to set aside the judgment of dismissal and ruled that his motion for
reassignment of a new judge was moot, “[s]ince all claims and all parties have been
dismissed from this case.” In December 1997, the court of appeals dismissed
Kreps’s appeal from the June 1997 entry because it failed to resolve the
counterclaim and consequently did not constitute a final appealable order.
       {¶ 6} In June 1998, Kreps filed a civil rights action under Section 1983,
Title 42, U.S.Code in the federal district court against the same defendants in his
common pleas court case as well as Judge Restivo and appellee Lucas County Court
of Common Pleas Judge Robert Christiansen, alleging similar claims regarding the
transcript of the municipal court proceedings. In January 1999, the federal district
court entered judgment in favor of the defendants, and Kreps subsequently filed an
appeal. On May 13, 1999, while the federal appeal remained pending, Judge
Christiansen imposed Civ.R. 11 sanctions on Kreps for failing to appear for three
scheduled depositions, entered a default judgment in favor of the Pesinas’ attorney
on his counterclaim for defamation, and scheduled a hearing to determine damages,
attorney fees, and costs.
       {¶ 7} In July 1999, Kreps filed a complaint in the court of appeals. He
requested a writ of mandamus to compel Judge Christiansen to set aside his May
13, 1999 order in the common pleas court case, a writ of mandamus to compel
Judge Restivo and Judge Osowik to set aside their February 12, 1997, October 20,
1998, and May 4, 1999 orders in the municipal court case, a writ of prohibition to
prevent Judge Christiansen from taking further action in the common pleas court
case while his federal appeal is pending, a writ of prohibition to prevent Judge
Restivo from acting further in the municipal court case, and a writ of procedendo
to compel appellee Lucas County Court of Common Pleas Judge William J. Skow




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to act on Kreps’s October 26, 1998 affidavit of disqualification against Judge
Restivo. On August 5, 1999, before appellees’ time to file a response to Kreps’s
complaint had expired, the court of appeals sua sponte dismissed the complaint.
       {¶ 8} This cause is now before the court upon an appeal as of right.
                               __________________
       Gene A. Kreps, pro se.
       Doyle, Lewis & Warner, Steven Timonere and Kevin A. Pituch, for
appellees.
                               __________________
       Per Curiam.
       {¶ 9} Kreps asserts in his various propositions of law that the court of
appeals erred in sua sponte dismissing his complaint for extraordinary relief in
mandamus, prohibition, and procedendo. Kreps claims that (1) the court of appeals
should have entered a default judgment against appellees because they did not file
an answer to the complaint, (2) he is entitled to writs of mandamus and prohibition
against Judge Restivo and Judge Osowik to set aside orders and prevent further
action because the claims between the parties exceeded the municipal court’s
monetary jurisdiction, (3) he is entitled to writs of mandamus and prohibition
against Judge Restivo and Judge Osowik to set aside orders and prevent further
action because of pending affidavits of disqualification, and (4) he is entitled to
writs of mandamus and prohibition against Judge Christiansen because the case had
already been dismissed. For the following reasons, we hold that Kreps’s claims are
meritless and affirm the judgment of the court of appeals.
       {¶ 10} Kreps is not entitled to a default judgment against appellees because
they are not in default. Under Loc.App.R. 6 of the Court of Appeals for the Sixth
District, service of a complaint in an original action, other than habeas corpus,
“shall be made without reference to a time for response” and the court of appeals,
“if it deems that an answer is necessary, will issue an alternative writ which will set




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                               January Term, 2000




forth the time for filing an answer or a motion to dismiss pursuant to Civ.R.
12(B)(6).” The court of appeals determined that no answer was necessary by sua
sponte dismissing Kreps’s original action because there was “no basis upon which
Kreps is entitled to the issuance of any extraordinary writ.” Sua sponte dismissal
of a complaint for failure to state a claim upon which relief can be granted is
appropriate if the complaint is frivolous or the claimant obviously cannot prevail
on the facts alleged in the complaint. State ex rel. Bruggeman v. Ingraham (1999),

87 Ohio St.3d 230, 231

, 

718 N.E.2d 1285, 1287

.
       {¶ 11} In addition, Kreps is not entitled to writs of mandamus and
prohibition against Judge Restivo and Judge Osowik to set aside orders and prevent
further action based on Kreps’s contention that the parties’ claims exceeded the
Toledo Municipal Court’s statutory monetary jurisdiction. R.C. 1901.17. Neither
mandamus nor prohibition will issue if the relator possesses an adequate remedy in
the ordinary course of law. State ex rel. Dannaher v. Crawford (1997), 

78 Ohio St.3d 391, 393

, 

678 N.E.2d 549, 551

. Absent a patent and unambiguous lack of
jurisdiction, a court having general subject-matter jurisdiction can determine its
own jurisdiction, and a party challenging the court’s jurisdiction has an adequate
remedy at law by appeal. State ex rel. Enyart v. O’Neill (1995), 

71 Ohio St.3d 655

,
656, 

646 N.E.2d 1110, 1112

. Kreps’s allegation in his complaint that the municipal
court lacked jurisdiction because the “claims existing between [the] parties
exceeded over Fifty Million Dollars” after he filed his common pleas court action
erroneously consolidates the monetary claims in his non-municipal court
proceedings. The exhibits filed by Kreps with his complaint disclose no violation
of the monetary-jurisdiction requirement of R.C. 1901.17 by the municipal court.
Therefore, Kreps failed to allege a patent and unambiguous lack of jurisdiction, and
he has or had an adequate remedy by appeal to raise his claim. See Grossman v.
Mathless & Mathless, C.P.A. (1993), 

85 Ohio App.3d 525, 528-529

, 

620 N.E.2d 5

                              SUPREME COURT OF OHIO




160, 162-163 (appeal from municipal court judgment raising monetary jurisdiction
claim).
          {¶ 12} Further, Kreps is not entitled to writs of mandamus and prohibition
against Judge Restivo and Judge Osowik to set aside orders and prevent further
action because of Kreps’s affidavits of disqualification.                 Under R.C.
2701.031(D)(1), “[e]xcept as provided in divisions (D)(2) to (4) of this section, if
the clerk of the municipal or county court in which a proceeding is pending accepts
an affidavit of disqualification for filing under divisions (B) and (C) of this section,
the affidavit deprives the judge of the municipal or county court against whom the
affidavit was filed of any authority to preside in the proceeding until the judge who
was notified pursuant to division (C)(1) of this section rules on the affidavit
pursuant to division (E) of this section.” See State ex rel. Stern v. Mascio (1998),

81 Ohio St.3d 297, 299

, 

691 N.E.2d 253, 255

 (writ of prohibition issued to prevent
judge from proceeding on substantive matters like a contempt conviction and
sentence after affidavit of disqualification had been filed).
          {¶ 13} The municipal court judges did not patently and unambiguously lack
jurisdiction to enter their challenged orders of February 12, 1997, October 20, 1998,
and May 4, 1999, under R.C. 2701.031(D)(1). Judge Restivo’s February 12, 1997
entry did not rule on pending, substantive motions for relief from judgment and
additional attorney fees; he only ordered Kreps to pay what he had been previously
ordered to pay on the previously appealed judgment, i.e., he ruled on a ministerial
matter. R.C. 2701.031(D)(1). And Judge Restivo’s October 20, 1998 entry, which
ruled on the pending, substantive motions, occurred after the presiding judge of the
common pleas court denied Kreps’s affidavits of disqualification against Judge
Restivo. R.C. 2701.031(D)(1). Judge Osowik’s May 4, 1999 order was also
appropriate because the then-pending affidavit of disqualification was against
Judge Restivo rather than him, and it was a successive affidavit of disqualification




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                                January Term, 2000




filed by Kreps against Judge Restivo after Kreps’s previous affidavits had been
denied. R.C. 2701.031(D)(1) and (4).
       {¶ 14} Moreover, Kreps is not entitled to writs of mandamus and
prohibition against Judge Christiansen. Because neither Judge Christiansen nor any
other common pleas judge had unconditionally dismissed the entire case, he did not
patently and unambiguously lack jurisdiction to proceed. Page v. Riley (1999), 

85 Ohio St.3d 621, 623-624

, 

710 N.E.2d 690, 692-693

. As the court of appeals noted
in December 1997, although the court’s August 26, 1997 entry referred to a
dismissal, no entry expressly resolved the Pesinas’ attorney’s counterclaim for
defamation. Kreps also has an adequate remedy by appeal to raise his claims of
inadequate service as well as his erroneous claim that his federal case “preempted”
his common pleas court proceeding. See State ex rel. Carter v. Schotten (1994), 

70 Ohio St.3d 89, 91

, 

637 N.E.2d 306, 309

 (state common pleas courts have concurrent
subject-matter jurisdiction over Section 1983, Title 42, U.S.Code federal civil
rights claims); State ex rel. Abner v. Elliott (1999), 

85 Ohio St.3d 11, 18

, 

706 N.E.2d 765, 770

 (res judicata is not the basis for a writ of prohibition).
       {¶ 15} Finally, as the court of appeals correctly held, Kreps’s claim for a
writ of procedendo to compel Judge Skow to rule on his October 26, 1998 affidavit
of disqualification against Judge Restivo was rendered moot by Judge Osowik’s
replacement of Judge Restivo in the municipal court proceeding.              Neither
procedendo nor mandamus will compel the performance of a duty that has already
been performed. State ex rel. Grove v. Nadel (1998), 

84 Ohio St.3d 252, 253

, 

703 N.E.2d 304, 305

.
       {¶ 16} Based on the foregoing, all of Kreps’s claims for extraordinary relief
are meritless, and he has or had an adequate remedy by appeal to raise these claims.
He failed to allege any special circumstances that would permit him to bypass his
appellate remedy. State ex rel. Wynn v. McCormick (1998), 

82 Ohio St.3d 420, 421

, 

696 N.E.2d 593

. Dismissal was therefore warranted.




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          {¶ 17} In addition, for similar reasons, we impose sanctions pursuant to
S.Ct.Prac.R. XIV(5). Kreps’s appeal is frivolous because it is not reasonably well
grounded in fact or warranted by existing law or a good-faith argument for the
extension, modification, or reversal of existing law. See State ex rel. Grendell v.
Davidson (1999), 

86 Ohio St.3d 629, 635-636

, 

716 N.E.2d 704, 710-711

. Although
in Grendell, we imposed sanctions upon a request, which is lacking here,
S.Ct.Prac.R. XIV(5) expressly authorizes the court to impose these sanctions on
our own initiative. It is evident here that this meritless appeal warrants the
imposition of sanctions. Therefore, we impose sanctions against Kreps under
S.Ct.Prac.R. XIV(5), and order appellees to submit a detailed bill and
documentation of the expenses and attorney fees of their counsel that have been or
will be paid by the city of Toledo, Lucas County, and/or appellees in connection
with this appeal.
          {¶ 18} Accordingly, we affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
          MOYER, C.J., F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ.,
concur.
          DOUGLAS and RESNICK, JJ., not participating.
                                __________________




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