State ex rel. Tubbs Jones v. Suster

[This opinion has been published in Ohio Official Reports at 

84 Ohio St.3d 70

.]




   THE STATE EX REL. TUBBS JONES, PROS. ATTY., v. SUSTER, JUDGE, ET AL.
           [Cite as State ex rel. Tubbs Jones v. Suster, 

1998-Ohio-275

.]
Writ of prohibition to prevent judge of Court of Common Pleas of Cuyahoga County
        from conducting further proceedings in suit seeking a determination,
        pursuant to R.C. 2305.02, that Dr. Samuel Sheppard was innocent of the
        crime of which he had been convicted and for which he had been wrongfully
        imprisoned—Writ denied, when.
    (No. 97-1231—Submitted January 13, 1998—Decided December 2, 1998.)
                                     IN PROHIBITION.
                                  __________________
        {¶ 1} On December 21, 1954, Dr. Samuel Sheppard, a physician, was
convicted of murder in the second degree of his wife, Marilyn Sheppard. He was
sentenced to life in prison. After being incarcerated for ten years, Sheppard was
granted a new trial in 1964 by a federal district court, which granted a writ of habeas
corpus on the basis that Sheppard had not been given a fair trial. Sheppard v.
Maxwell (S.D.Ohio 1964), 

231 F.Supp. 37

. The court of appeals reversed (C.A.6,
1965), 

346 F.2d 707

, but that decision was reversed and a writ of habeas corpus
was granted by the United States Supreme Court. Sheppard v. Maxwell (1966), 

384 U.S. 333

, 

86 S.Ct. 1507

, 

16 L.Ed.2d 600

. Upon retrial, Sheppard was found not
guilty. He was discharged from prison in 1966. Sheppard died in 1970.
        {¶ 2} On October 19, 1995, twenty-five years after Sheppard’s death, Alan
Davis, special administrator of Sheppard’s estate, filed in the original criminal case
a “Petition for Declaration of Innocence as a Wrongfully Imprisoned Individual” in
the Cuyahoga County Court of Common Pleas, Criminal Division, seeking a
determination, pursuant to R.C. 2305.02, that Sheppard was innocent and had been
wrongfully imprisoned.
                                  SUPREME COURT OF OHIO




         {¶ 3} After the state argued that a wrongful imprisonment action is a civil
matter, Davis filed a second petition for declaration of innocence in the Civil
Division of the Cuyahoga County Court of Common Pleas on July 24, 1996.
         {¶ 4} On August 8, 1996, the state moved to dismiss, alleging that Davis’s
petition failed to state a claim upon which relief could be granted. Specifically, the
state alleged that the petition was barred due to laches, that the statute of limitations
had expired, and that Davis lacked standing to file suit on Sheppard’s behalf.1 The
trial court denied the motion to dismiss without opinion on January 13, 1997.
         {¶ 5} On February 28, 1997, the state filed an answer requesting that the
petition be dismissed.
         {¶ 6} On May 7, 1997, the state, pursuant to Civ.R. 12(C), moved for
judgment on the pleadings, again arguing that Davis lacked standing under the
wrongful imprisonment statute. On June 3, 1997, the trial court denied the motion.
         {¶ 7} On June 18, 1997, relator, Stephanie Tubbs Jones, Prosecuting
Attorney for Cuyahoga County, filed in this court a petition for a writ of prohibition
seeking to prohibit the Honorable Ronald Suster and the Court of Common Pleas
of Cuyahoga County from conducting further proceedings, claiming that the lower
court patently and unambiguously lacked jurisdiction. Relator based her petition
for a writ upon grounds similar to those raised by the state in its motion to dismiss
for failure to state a claim and its motion for judgment on the pleadings, both of
which the lower court had denied.
         {¶ 8} This cause is now before the court pursuant to an alternative writ.
                                    __________________




1. The state also claimed that Davis has no claim because an action for wrongful imprisonment is a
personal right that does not survive but rather abates upon the death of the individual who allegedly
was wrongfully imprisoned. For purposes of this opinion, we collectively refer to relator’s standing
and abatement arguments as a lack of standing.




                                                 2
                                January Term, 1998




       Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, George J.
Sadd and Marilyn B. Cassidy, Assistant Prosecuting Attorneys, for relator.
       Gold, Rotatori & Schwartz Co., L.P.A., Niki Z. Schwartz, Richard L. Stoper,
Jr., and Jennifer E. Schwartz, for respondents.
       Friedman & Gilbert and Terry H. Gilbert, urging denial of the writ for
amicus curiae, Alan Davis, special administrator of the estate of Samuel H.
Sheppard.
                               __________________
       LUNDBERG STRATTON, J.
       {¶ 1} The Ohio Revised Code provides a two-step process whereby a
person claiming wrongful imprisonment may sue the state of Ohio for damages
incurred due to the alleged wrongful imprisonment. Walden v. State (1989), 

47 Ohio St.3d 47, 49

, 

547 N.E.2d 962, 964

. The first action, in the common pleas
court under R.C. 2305.02, seeks a preliminary factual determination of wrongful
imprisonment; the second action, in the Court of Claims under R.C. 2743.48,
provides for damages.
       {¶ 2} Prior to filing suit in the Court of Claims for damages, a petitioner
must establish the following: (1) the petitioner was convicted of a felony; (2) the
petitioner was sentenced for that conviction; (3) the conviction was vacated,
dismissed, or reversed; (4) no further prosecution was attempted or allowed for that
conviction or any act associated with that conviction; and (5) the offense of which
the petitioner was found guilty was not committed by the petitioner or was not
committed at all. R.C. 2305.02, R.C. 2743.48(A). However, a previous finding of
not guilty is not sufficient to establish innocence. The petitioner seeking to
establish a claim for wrongful imprisonment must produce more evidence than a
judgment of acquittal, which is merely a judicial finding that the state did not prove
its case beyond a reasonable doubt. Ellis v. State (1992), 

64 Ohio St.3d 391, 393

,




                                          3
                             SUPREME COURT OF OHIO

596 N.E.2d 428, 430

. The petitioner carries the burden of proof in affirmatively
establishing his or her innocence under R.C. 2743.48(A)(5).
        {¶ 3} If the common pleas court makes such a finding, then the petitioner
may file a civil suit for money damages against the state. R.C. 2743.48(B) and (D).
The claim must be commenced in the Court of Claims within two years of the
common pleas court’s determination that the petitioner had been wrongfully
incarcerated. R.C. 2743.48(H).
        {¶ 4} In this case, Davis filed suit in the Cuyahoga County Court of
Common Pleas, seeking a declaration by that court that Sheppard was not the
person who committed the aggravated murder of his wife, which is the prerequisite
to filing a civil suit against the state for money damages. Relator asks us to issue a
writ of prohibition to preclude the common pleas court from proceeding on Davis’s
petition in making a determination as to whether Sheppard was innocent of the
murder of       his wife because the court patently and unambiguously lacks
jurisdiction.
                  I. STANDARD FOR WRIT OF PROHIBITION
        {¶ 5} This court has original jurisdiction to issue a writ of prohibition.
Section 2(B)(1)(d), Article IV, Ohio Constitution.           However, neither the
Constitution nor the General Assembly has defined the parameters of prohibition.
State ex rel. Burtzlaff v. Vickery (1929), 

121 Ohio St. 49, 50

, 

166 N.E. 894, 895

.
Drawing from principles of common law, this court has determined that a “writ of
prohibition has been defined in general terms as an extraordinary judicial writ
issuing out of a court of superior jurisdiction and directed to an inferior tribunal
commanding it to cease abusing or usurping judicial functions.” 

Id. at 50

, 

166 N.E. at 895

. In other words, the purpose of a writ of prohibition is to restrain inferior
courts and tribunals from exceeding their jurisdiction. State ex rel. Barton v. Butler
Cty. Bd. of Elections (1988), 

39 Ohio St.3d 291

, 

530 N.E.2d 871

. As such, a writ
of prohibition is an “extraordinary remedy which is customarily granted with




                                          4
                                      January Term, 1998




caution and restraint, and is issued only in cases of necessity arising from the
inadequacy of other remedies.” State ex rel. Henry v. Britt (1981), 

67 Ohio St.2d 71, 73

, 

21 O.O.3d 45, 47

, 

424 N.E.2d 297, 298-299

; State ex rel. Barclays Bank
PLC v. Hamilton Cty. Court of Common Pleas (1996), 

74 Ohio St.3d 536, 540

, 

660 N.E.2d 458, 461

 (“Prohibition is an extraordinary writ and we do not grant it
routinely or easily.”).
         {¶ 6} In addition, a writ of prohibition “tests and determines ‘solely and
only’ the subject matter jurisdiction” of the lower court. State ex rel. Eaton Corp.
v. Lancaster (1988), 

40 Ohio St.3d 404, 409

, 

534 N.E.2d 46, 52

; State ex rel. Staton
v. Franklin Cty. Common Pleas Court (1965), 

5 Ohio St.2d 17, 21

, 

34 O.O.2d 10, 13

, 

213 N.E.2d 164, 167

.2
         {¶ 7} In order for a writ of prohibition to issue, the relator must prove that
(1) the lower court is about to exercise judicial authority, (2) the exercise of
authority is not authorized by law, and (3) the relator possesses no other adequate
remedy in the ordinary course of law if the writ of prohibition is denied. State ex
rel. Keenan v. Calabrese (1994), 

69 Ohio St.3d 176, 178

, 

631 N.E.2d 119, 121

.
         {¶ 8} A court of common pleas is a court of general jurisdiction and
possesses the authority to initially determine its own jurisdiction. Prohibition will
not lie to prevent an anticipated erroneous judgment. State ex rel. Heimann v.
George (1976), 

45 Ohio St.2d 231, 232

, 

74 O.O.2d 376

, 

344 N.E.2d 130, 131

.
However, we have created a limited exception in cases where there appears to be a
total lack of jurisdiction of the lower court to act. Early cases referred to a “total


2. There have been cases not involving subject matter jurisdiction where this court has issued a writ
of prohibition. In State ex rel. News Herald v. Ottawa Cty. Court of Common Pleas (1996), 

77 Ohio St.3d 40

, 

671 N.E.2d 5

, the court made an exception in a case that involved a procedural act of the
court, the issuing of a gag order. Once the gag order was enforced and a hearing was conducted,
relator, News Herald, would have had no adequate remedy at law. In State ex rel. Connor v.
McGough (1989), 

46 Ohio St.3d 188

, 

546 N.E.2d 407

, the court also made an exception where the
trial court had subject matter jurisdiction but patently and unambiguously lacked personal
jurisdiction over the defendant, a resident of Germany.




                                                 5
                              SUPREME COURT OF OHIO




want of jurisdiction” or to the court’s being “without jurisdiction whatsoever to
act.” State ex rel. Adams v. Gusweiler (1972), 

30 Ohio St.2d 326, 329

, 

59 O.O.2d 387, 388

, 

285 N.E.2d 22, 24

, and paragraph two of the syllabus. Later cases defined
this exception as a “ ‘patent and unambiguous’ lack of jurisdiction to hear a case.”
Ohio Dept. of Adm. Serv., Office of Collective Bargaining v. State Emp. Relations
Bd. (1990), 

54 Ohio St.3d 48, 51

, 

562 N.E.2d 125, 129

; State ex rel. Tollis v.
Cuyahoga Cty. Court of Appeals (1988), 

40 Ohio St.3d 145, 148

, 

532 N.E.2d 727, 729

. In such circumstances, a writ of prohibition may issue before a lower court
has made a determination of its own jurisdiction, even where an adequate remedy
in the ordinary course of the law may exist. Id.; Ohio Dept. of Adm. Serv., Office
of Collective Bargaining v. State Emp. Relations Bd., 

54 Ohio St.3d at 51-52

, 

562 N.E.2d at 129

.
        {¶ 9} Relator would be able to appeal adverse rulings on the issues raised
herein and does not contend otherwise. Thus, absent a patent and unambiguous
lack of jurisdiction, relator’s remedy in the ordinary course of law by postjudgment
appeal precludes prohibition. Consequently, in order for a writ of prohibition to
issue in this case, we must find that the alleged defects patently and unambiguously
deprive the trial court of jurisdiction to hear this case.
        {¶ 10} Relator raises two main legal arguments in support of the petition for
a writ of prohibition: (1) the statute of limitations has long since expired, and (2)
Davis has no standing to bring a wrongful imprisonment action for Sheppard.
Relator also argues that public policy prohibits such an action due to the
extraordinary passage of time, thirty-two years since Sheppard’s discharge from
prison. However, although these arguments may have merit, they do not support
relator’s position that the trial court patently and unambiguously lacked jurisdiction
and are not sufficient reasons for this court to issue a writ of prohibition.
                     II. SUBJECT MATTER JURISDICTION




                                            6
                                  January Term, 1998




           {¶ 11} R.C. 2305.02 confers exclusive and original subject matter
jurisdiction in this case upon a court of common pleas. Subject matter jurisdiction
is a court’s power to hear and decide a case on the merits. Morrison v. Steiner
(1972), 

32 Ohio St.2d 86

, 

61 O.O.2d 335

, 

290 N.E.2d 841

, paragraph one of the
syllabus. “Jurisdiction does not relate to the rights of the parties, but to the power
of the court.” (Emphasis added.) Executors of Long’s Estate v. State (1926), 

21 Ohio App. 412, 415

, 

153 N.E. 225, 226

.
           {¶ 12} A jurisdictional defect cannot be waived. Painesville v. Lake Cty.
Budget Comm. (1978), 

56 Ohio St.2d 282

, 

10 O.O.3d 411

, 

383 N.E.2d 896

. This
means that the lack of jurisdiction can be raised at any time, even for the first time
on appeal. See In re Byard (1996), 

74 Ohio St.3d 294, 296

, 

658 N.E.2d 735, 737

.
This is because jurisdiction is a condition precedent to the court’s ability to hear the
case. If a court acts without jurisdiction, then any proclamation by that court is
void. Patton v. Diemer (1988), 

35 Ohio St.3d 68

, 

518 N.E.2d 941

.
                           III. STATUTE OF LIMITATIONS
           {¶ 13} In contrast, the expiration of the statute of limitations is an
affirmative defense that may deprive a litigant of his or her right to recover, but it
is not a jurisdictional defect. The statute of limitations is a defense to a matter over
which the court has subject matter jurisdiction. Lewis v. Trimble (1997), 

79 Ohio St.3d 231

, 

680 N.E.2d 1207

. A statute of limitations is an affirmative defense that
is waived unless pled in a timely manner. 

Id.

 If it is not so pled, a court with subject
matter jurisdiction can proceed with the case. The appellate court in Collins v.
Nurre (1969), 

20 Ohio App.2d 53, 54

, 

49 O.O.2d 70, 71

, 

251 N.E.2d 621, 622

, put
it well:
           “The running of a pure statute of limitations does not extinguish the right
nor extinguish the jurisdiction of the court over the subject matter but merely bars
the remedy which in certain cases is subject to being revived, and subject to being
waived.”




                                            7
                                  SUPREME COURT OF OHIO




        {¶ 14} Consequently, the expiration of a statute of limitations does not
deprive a court of jurisdiction. To hold otherwise would elevate the defense of
statute of limitations to the status of subject matter jurisdiction. This would mean
that the defense of statute of limitations, as well as subject matter jurisdiction, could
be asserted at any point in the proceedings. We are unwilling to make this leap.
        {¶ 15} The facts and circumstances that may establish the expiration of a
statute of limitations are for the trial court to examine and determine. If a party
believes that the trial court’s conclusion is wrong, the avenue of redress is an
appeal, not a writ of prohibition.3
        {¶ 16} Our conclusion is consistent with the holdings of this and other
courts that the failure to comply with a statute of limitations may not be raised in
prohibition. See State ex rel. Levy v. Savord (1944), 

143 Ohio St. 451, 454

, 

28 O.O. 379, 380

, 

55 N.E.2d 735, 736

 (“Relator is at liberty to challenge the jurisdiction of
the Common Pleas Court in that court upon the very grounds alleged in the petition
[which included a claim that a statute of limitations barred the common pleas court
from proceeding in the underlying action] filed in the Court of Appeals and, if the
court first designated should decide against him, the right of appeal exists and may
be exercised.”); Tatro v. Langston (1997), 

328 Ark. 548, 552

, 

944 S.W.2d 118, 120

,
quoting 63C American Jurisprudence 2d (1997) 40, Prohibition, Section 56 (“
‘[P]rohibition is not an available remedy if the statute of limitations governing a
particular proceeding is not jurisdictional, but may only be raised as an affirmative
defense.’ ”); see, also, State ex rel. Williams v. Brigano (1997), 

78 Ohio St.3d 413, 414

, 

678 N.E.2d 568, 569

, holding that the speedy trial rule, a criminal equivalent



3. In Hoover v. Sumlin (1984), 

12 Ohio St.3d 1

, 12 OBR 1, 

465 N.E.2d 377

, we held that where a
party fails to plead an affirmative defense in a responsive pleading, that party may seek leave to
amend the pleading to add a statute of limitations defense. Leave to amend “shall be ‘freely given’
as justice requires.” Hoover v. Sumlin, 

12 Ohio St.3d at 5

, 12 OBR at 5, 

465 N.E.2d at 381

. Failure
to assert the defense may result in waiver. A court may deny leave to amend if an affirmative
defense is untimely or filed in bad faith.




                                                8
                                 January Term, 1998




of a civil statute of limitations, must be raised on appeal rather than by extraordinary
writ.
        {¶ 17} Therefore, we hold that the expiration of a statute of limitations is
not a jurisdictional defect. It affects the rights of litigants, not the court’s power to
hear the case. Long’s Estate, supra. Accordingly, even if the statute of limitations
has long since expired in this case, it would not warrant a writ of prohibition
because the expiration of a statute of limitations is not a jurisdictional defect. The
trial court has jurisdiction to decide whether the statute of limitations should bar
this action, and its decision may be reviewed on appeal.
                                   IV. STANDING
        {¶ 18} Relator also contends that the Sheppard estate lacks standing to bring
a claim for wrongful incarceration because R.C. 2743.48 applies only to the person
who is alleged to have been wrongfully incarcerated and that the statute does not
extend the cause of action to representatives, heirs, and assigns of that person.
Relator claims that any cause of action for wrongful imprisonment abated with the
death of Sheppard, and that without standing to bring a claim, a party fails to satisfy
the constitutional requirement of justiciability in order to invoke the jurisdiction of
the court. However, respondent Suster contends that standing does not attack a
court’s jurisdiction. It is an issue that is appealable as error, and cannot be the basis
for a writ of prohibition.
        {¶ 19} Although a court may have subject matter jurisdiction over an action,
if a claim is asserted by one who is not the real party in interest, then the party lacks
standing to prosecute the action. The lack of standing may be cured by substituting
the proper party so that a court otherwise having subject matter jurisdiction may
proceed to adjudicate the matter. Civ.R. 17. Unlike lack of subject matter
jurisdiction, other affirmative defenses can be waived. Houser v. Ohio Historical
Soc. (1980), 

62 Ohio St.2d 77

, 

16 O.O.3d 67

, 

403 N.E.2d 965

. Lack of standing
challenges the capacity of a party to bring an action, not the subject matter




                                           9
                                  SUPREME COURT OF OHIO




jurisdiction of the court. State ex rel. Smith v. Smith (1996), 

75 Ohio St.3d 418, 420

, 

662 N.E.2d 366, 369

; State ex rel. LTV Steel Co. v. Gwin (1992), 

64 Ohio St.3d 245, 251

, 

594 N.E.2d 616, 621

.4
         {¶ 20} R.C. 2305.02 confers subject matter jurisdiction upon the common
pleas court in a wrongful imprisonment case. The relator’s challenge to jurisdiction
on the basis of the estate’s lack of standing does not attack the court’s subject matter
jurisdiction, but rather its power to hear the claim as asserted by this particular
party. Standing is a threshold question for the court to decide in order for it to
proceed to adjudicate the action. The trial court has discretion to decide whether
the estate is a proper party to assert the claim.
         {¶ 21} A trial court’s decision on the issue of standing is properly
challenged in a postjudgment appeal rather than via extraordinary writ. State ex
rel. Smith v. Smith, 

75 Ohio St.3d at 420

, 

662 N.E.2d at 369

; State ex rel. LTV
Steel, 

64 Ohio St.3d at 251

, 

594 N.E.2d at 621

. Therefore, we need not reach the
legal issues of abatement or survival. We find that the trial court did not lack
jurisdiction over this action based upon the estate’s standing to bring an action
under R.C. 2305.02.
         V. WRIT OF PROHIBITION NOT A SUBSTITUTE FOR AN APPEAL
         {¶ 22} A writ of prohibition is not a substitute for an appeal. State ex rel.
Crebs v. Wayne Cty. Court of Common Pleas (1974), 

38 Ohio St.2d 51, 52

, 

67 O.O.2d 61

, 

309 N.E.2d 926, 927

; State ex rel. Winnefeld v. Butler Cty. Court of



4. The term “jurisdiction” has different meanings depending upon the context in which it is used
and the subject matter to which it is directed. Garverick v. Hoffman (1970), 

23 Ohio St.2d 74

, 78-
79, 

52 O.O.2d 371, 373

, 

262 N.E.2d 695, 698-699

. We have held standing to be jurisdictional only
in limited cases involving administrative appeals, where parties must meet strict standing
requirements in order to satisfy the threshold requirement for the administrative tribunal to obtain
jurisdiction. See Buckeye Foods v. Cuyahoga Cty. Bd. of Revision (1997), 

78 Ohio St.3d 459

, 

678 N.E.2d 917

; New Boston Coke Corp. v. Tyler (1987), 

32 Ohio St.3d 216, 218

, 

513 N.E.2d 302, 305

.
In these cases, the issue of the party’s standing was raised and handled by way of direct appeal, not
by a writ of prohibition.




                                                 10
                                 January Term, 1998




Common Pleas (1953), 

159 Ohio St. 225

, 

50 O.O. 263

, 

112 N.E.2d 27

. Nor is it a
remedy for abuse of discretion. Eaton Corp., 

40 Ohio St.3d at 409

, 

534 N.E.2d at 52

.
        {¶ 23} However, relator argues that the trial court erred in its legal
conclusions as to the statute of limitations, abatement, and standing defenses and
that these defenses are so clear, and the lapse of time so great, that this court should
grant a writ of prohibition instead of forcing the state through the appeals process.
In other words, relator contends that the defenses are so beyond dispute because of
the passage of time that the court patently and unambiguously lacks jurisdiction to
continue the case.
        {¶ 24} However, what relator really argues is that the court either abused its
discretion or erred as a matter of law in refusing to dismiss the case. But accepting
this argument, while tempting on its face, would create an uncertain standard. At
what point would a statute of limitations defense become so obvious as to rise to
the level of patent and unambiguous? Five years? Ten years? Would we accept on
mandamus every claim of lack of standing or the running of a statute of limitations?
        {¶ 25} We decline to accept relator’s argument because it would start us
down a slippery slope. More importantly, such a determination would unjustifiably
elevate the defenses of the statute of limitations, standing, and abatement to the
level of jurisdictional defects. This would contravene well-settled legal principles
that differentiate between subject matter jurisdiction and other affirmative defenses.
Subject matter jurisdiction may be raised at any time because a court that lacks
subject matter jurisdiction lacks the power to hear the case. Other affirmative
defenses, on the other hand, must be timely raised and pleaded or otherwise are
waived. The detrimental effect of unjustifiably elevating affirmative defenses to
the level of subject matter jurisdiction is evident. Affirmative defenses would no
longer have to be pled in a timely manner. Being jurisdictional, they could be raised




                                          11
                                SUPREME COURT OF OHIO




at any time. This would be disruptive to litigation because it would allow unfair
surprise and promote delay. We reaffirm our statement in Barton:
        “ ‘[A writ of prohibition] is not an appropriate remedy for the correction of
errors, and does not lie to prevent an erroneous decision in a case which the court
is authorized to adjudicate.’
        “ * * * Therefore, prohibition is not an appropriate remedy to correct alleged
errors or prevent an allegedly erroneous decision stemming from such a review.”
Barton, 

39 Ohio St.3d at 292

, 

530 N.E.2d at 873

, quoting Kelley v. State ex rel.
Gellner (1916), 

94 Ohio St. 331

, 

114 N.E. 255

, paragraph three of the syllabus.
                                 VI. PUBLIC POLICY
        {¶ 26} Relator argues that public policy requires dismissal of the wrongful
imprisonment case because defending the case will be costly and time-consuming
for the state because witnesses have died and evidence has become stale. However,
both parties are affected by passage of time. The Marilyn Sheppard murder case
remains open. No other person has been charged with the crime. The state remains
obligated to preserve any testimony or evidence for any future prosecution, as there
is no statute of limitations on murder. In fact, in 1992, the Bay Village, Ohio Police
Department opposed a Public Records Act request on the basis that the case remains
open.
        {¶ 27} Relator’s policy arguments do not merit this court’s finding that the
passage of time alone warrants the issuance of a writ of prohibition. “The fact that
postjudgment appeal may be time-consuming and expensive to pursue does not
render appeal inadequate so as to justify extraordinary relief.”         Fraiberg v.
Cuyahoga Cty. Court of Common Pleas, Domestic Relations Div. (1996), 

76 Ohio St.3d 374, 379

, 

667 N.E.2d 1189, 1194

.
        {¶ 28} We also note that relator filed her petition for a writ of prohibition
after the trial court’s denial of relator’s motion to dismiss under Civ.R. 12(B).
However, as respondents point out, a motion to dismiss is very preliminary and




                                          12
                                 January Term, 1998




rests only on the pleadings themselves. Once discovery has been concluded, many
of the issues addressed by the state may be more appropriately raised in a summary
judgment motion after evidence has been gathered.
       {¶ 29} Therefore, we find that the public policy issues advanced by relator
are insufficient to lead us to grant a writ of prohibition on that basis alone.
                                VII. CONCLUSION
       {¶ 30} The issues raised by relator, lack of standing and expiration of the
statute of limitations, are ones properly addressed by the trial court or upon appeal,
not by way of a writ of prohibition. The passage of time does not deprive the trial
court of subject matter jurisdiction. We find, therefore, that the trial court does not
patently and unambiguously lack jurisdiction to hear this case.
                                                                          Writ denied.
       MOYER, C.J., and KNEPPER, J., concur.
       COOK, J., concurs in the judgment and opinion, except for Parts IV and V.
       DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.
       RICHARD W. KNEPPER, J., of the Sixth Appellate District, sitting for
PFEIFER, J.
                                   __________________
       DOUGLAS, J., dissenting.
       {¶ 31} I dissent from the judgment and opinion of the majority. The
majority has determined that the Cuyahoga County Court of Common Pleas has
jurisdiction to determine whether Davis, the administrator of Sheppard’s estate,
may pursue a wrongful imprisonment claim against the state. Thus, the majority
concludes that the requested writ of prohibition must be denied. However, in
reaching this conclusion, I believe, the majority has based its judgment on
something other than the law. It has been over three decades since Sheppard was
released from prison and almost three decades since his death. Those facts alone
support a finding that the wrongful imprisonment action filed by Davis is time-




                                          13
                              SUPREME COURT OF OHIO




barred and unlawful.       See, generally, R.C. 2305.07.          In any event, and
notwithstanding the dilatory aspects of the claim, R.C. 2305.02 and 2743.48
establish that Davis does not have standing to maintain such an action and that the
trial court’s authority to hear the claim is unequivocally denied by law.
Accordingly, the writ of prohibition should be granted.
       {¶ 32} With respect to the issuance of a writ of prohibition, the general rule
is that “courts of general jurisdiction have authority to determine their own
jurisdiction, that appeal is an adequate remedy, and, in any case, prohibition is not
an appropriate remedy to correct errors made by the court.” Ohio Dept. of Adm.
Serv., Office of Collective Bargaining v. State Emp. Relations Bd. (1990), 

54 Ohio St.3d 48, 51

, 

562 N.E.2d 125, 128-129

. The majority, however, has failed to
properly recognize the import of this rule, giving it an improperly strict and
anointed application. To the contrary, this rule is a general rule that may or may
not be relevant to the case. In fact, it is not absolute, and it has been found to be
irrelevant in numerous cases considered by this court. See, e.g., State ex rel. Adams
v. Gusweiler (1972), 

30 Ohio St.2d 326, 329

, 

59 O.O.2d 387, 388

, 

285 N.E.2d 22, 24

 (“If an inferior court is without jurisdiction whatsoever to act, the availability or
adequacy of a remedy of appeal to prevent the resulting injustice is immaterial to
the exercise of supervisory jurisdiction by a superior court to prevent usurpation of
jurisdiction by the inferior court.”); and Ohio Dept. of Adm. Serv., Office of
Collective Bargaining, 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.”). See, also, State ex rel. Tollis v. Cuyahoga Cty. Court
of Appeals (1988), 

40 Ohio St.3d 145, 148

, 

532 N.E.2d 727, 729

; and State ex rel.
Lewis v. Warren Cty. Court of Common Pleas (1990), 

52 Ohio St.3d 249

, 

556 N.E.2d 1184

 (writ of prohibition may properly issue to prevent a court of common
pleas from taking jurisdiction before the court rules on its own jurisdiction). Here,




                                          14
                                  January Term, 1998




given the clear requirements of R.C. 2305.02 and 2743.48, the court of common
pleas is “without jurisdiction whatsoever to act,” Gusweiler, and the restriction on
the court’s jurisdiction to hear Davis’s claim is both “patent and unambiguous,”
Ohio Dept. of Adm. Serv., Office of Collective Bargaining.
          {¶ 33} R.C. 2305.02 states that “[a] court of common pleas has exclusive,
original jurisdiction to hear and determine an action or proceeding that is
commenced by an individual who satisfies divisions (A)(1) to (4) of section
2743.48 of the Revised Code and that seeks a determination by the court that the
offense of which he was found guilty, including all lesser-included offenses, either
was not committed by him or was not committed by any person.” (Emphasis
added.)     R.C. 2743.48(A) defines a “wrongfully imprisoned person” as an
individual that satisfies the following:
          “(1) He was charged with a violation of a section of the Revised Code by
an indictment or information prior to, or on or after, September 24, 1986, and the
violation charged was an aggravated felony or felony.
          “(2) He was found guilty of, but did not plead guilty to, the particular charge
or a lesser-included offense by the court or jury involved, and the offense of which
he was found guilty was an aggravated felony or felony.
          “(3) He was sentenced to an indefinite or definite term of imprisonment in
a state correctional institution for the offense of which he was found guilty.
          “(4) The individual’s conviction was vacated or dismissed, or reversed on
appeal * * *.
          “(5) Subsequent to his sentencing and during or subsequent to his
imprisonment, it was determined by a court of common pleas that the offense of
which he was found guilty * * * either was not committed by him or was not
committed by any person.” (Emphasis added.)
          {¶ 34} Relator contends that Judge Suster and the common pleas court
patently and unambiguously lack jurisdiction over the wrongful imprisonment




                                            15
                             SUPREME COURT OF OHIO




action because only the individual who had been wrongfully imprisoned is
permitted to bring such an action against the state. I agree. Relator’s contention is
supported by law. Specifically, R.C. 2305.02 states that a court of common pleas
has exclusive and original jurisdiction to hear an individual’s wrongful
imprisonment claim if the individual satisfies the requirements of R.C.
2743.48(A)(1) through (4). There is absolutely nothing within either R.C. 2305.02
or 2743.48 that even remotely suggests that the administrator of an estate is free to
bring a claim under R.C. 2305.02. Equally persuasive is the fact that there is
nothing within the section of the Revised Code governing survival of actions, R.C.
2305.21, that specifically supports a finding that a cause of action for wrongful
imprisonment survives the death of the individual who had been wrongfully
imprisoned. Clearly, Davis does not have the requisite standing to commence an
action for wrongful imprisonment.
       {¶ 35} Today’s majority opinion has established a dangerous precedent
because, according to the majority, a cause of action for wrongful imprisonment
can remain subject to adjudication by a court of common pleas for an indefinite
period of time. In fact, given the findings of the majority, the claim at issue here
could have been commenced in the trial court well into the next millennium or
beyond! The General Assembly, however, obviously foresaw the possibility of
such a problem and did not intend such a result. Unfortunately, and for whatever
reason, the majority has elected to sidestep the patent and unambiguous
requirements of R.C. 2305.02 and 2743.48.
       {¶ 36} Relator has satisfied all the prerequisites for the issuance of a writ of
prohibition. The finding of the majority that any errors committed by the trial court
can be challenged in a postjudgment appeal is simply irrelevant. See Ohio Dept. of
Adm. Serv., Office of Collective Bargaining, 

54 Ohio St.3d at 51

, 

562 N.E.2d at 129

. Here, the trial court patently and unambiguously lacks jurisdiction to entertain
the wrongful imprisonment action.




                                         16
                                January Term, 1998




       {¶ 37} Accordingly, I must dissent. I would grant the writ and dismiss the
wrongful imprisonment action.
       RESNICK and F.E. SWEENEY, JJ., concur in the foregoing dissenting opinion.
                             __________________




                                        17