Lundeen v. Turner (Slip Opinion)

L
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Lundeen v. Turner, Slip Opinion No. 2021-Ohio-1533.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2021-OHIO-1533
         LUNDEEN, APPELLANT, v. TURNER, JUDGE, ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as Lundeen v. Turner, Slip Opinion No. 2021-Ohio-1533.]
Prohibition—Subject-matter jurisdiction—Writ of prohibition sought to prevent
        enforcement of foreclosure judgment based on insufficient-service claims—
        Appellant had adequate remedy in ordinary course of law—Court of
        appeals’ dismissal of writ affirmed.
     (No. 2020-0356—Submitted January 26, 2021—Decided May 5, 2021.)
             APPEAL from the Court of Appeals for Cuyahoga County,
                             No. 109240, 2020-Ohio-274.
                               ____________________
        Per Curiam.
        {¶ 1} Appellant, Cynthia Lundeen, brought this action in the Eighth District
Court of Appeals seeking a writ of prohibition to prevent the enforcement of a
foreclosure judgment against her. As the primary ground for relief, she stated that
she had not been timely served in the foreclosure action. The court of appeals
                            SUPREME COURT OF OHIO




dismissed Lundeen’s prohibition complaint sua sponte, in part because Lundeen
had an adequate remedy at law through her appeal from the foreclosure judgment.
We agree, and we therefore affirm.
                        I. FACTUAL BACKGROUND
               A. Course of proceedings in the foreclosure action
       {¶ 2} In 2016, Wells Fargo Bank, N.A., filed a foreclosure action against
Lundeen. Wells Fargo Bank, N.A. v. Lundeen, Cuyahoga C.P. No. C-16-856890
(Apr. 13, 2018). Wells Fargo amended its complaint three times, and certified-mail
service of the third amended complaint failed in late 2016. The clerk of the
Cuyahoga County Court of Common Pleas accomplished ordinary-mail service on
January 18, 2017. See Civ.R. 4.6(D). The docket reflected no return of the mailing
as undeliverable.
       {¶ 3} “When entertaining a motion to dismiss a writ complaint, a court may
take notice of the docket and record in a closely related case to determine whether
the current complaint states a claim for relief.” State ex rel. Neguse v. McIntosh,

161 Ohio St. 3d 125

, 2020-Ohio-3533, 

161 N.E.3d 571

, ¶ 18. The online docket in
the foreclosure case shows that Lundeen filed a Civ.R. 12(B)(6) motion to dismiss
the foreclosure case, which was denied. Later, Lundeen filed a second motion to
dismiss predicated on Civ.R. 12(H)(3); that motion was also denied.
       {¶ 4} Although Lundeen’s first motion to dismiss was denied on January 8,
2018, she did not file an answer in the case within 14 days as required by Civ.R.
12(A)(2)(a).
       {¶ 5} On February 14, 2018, the magistrate entered her decision granting
summary judgment to Wells Fargo, and Lundeen did not timely file objections to
the decision. See Wells Fargo Bank, N.A. v. Lundeen, 8th Dist. Cuyahoga No.
107184, 2020-Ohio-28, ¶ 8, appeal not accepted, 

160 Ohio St. 3d 1420

, 2020-Ohio-
4811, 

154 N.E.3d 105

. On April 13, 2018, the common pleas court adopted the
magistrate’s decision and entered a final judgment of foreclosure against Lundeen.




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                                January Term, 2021




Thereafter, Lundeen filed a belated objection to the magistrate’s decision and a
belated answer, both of which the court struck as untimely. Neither Lundeen’s
motion to dismiss, nor any other prejudgment motions filed by Lundeen, nor her
untimely filed answer, raised personal-jurisdiction or insufficiency-of-service
defenses.

Id. at ¶ 6, 15, 16.

Even Lundeen’s motion for relief from judgment,
which invoked Civ.R. 60(B)(1) and the common-law power of a court to vacate its
own void orders, made no mention of any insufficiency in the service of the
complaint. Lundeen did mention the service issue in a postjudgment “motion to
dismiss” that she filed on May 9, 2018, four days before she appealed the
foreclosure judgment.
        {¶ 6} On May 13, 2018, Lundeen appealed the judgment of foreclosure to
the Eighth District, arguing in part that the trial court lacked jurisdiction over her
because she had not been properly served. The court of appeals determined that
Lundeen had waived the service issue.

Id. at ¶ 16.

                         B. The 2018 prohibition action
        {¶ 7} In 2018, Lundeen filed a prohibition action in the Eighth District
against Judge Janet Burnside, who had entered the foreclosure judgment. Lundeen
had just appealed the judgment of foreclosure and she sought to prevent the
foreclosure sale through the writ action. The court of appeals dismissed the action
sua sponte. State ex rel. Lundeen v. Burnside, 8th Dist. Cuyahoga No. 107657,
2018-Ohio-4122, ¶ 1, 3. The court of appeals predicated its dismissal on the
common pleas court’s possessing subject-matter jurisdiction over the foreclosure
case and the fact that Lundeen had an adequate remedy at law through appeal.

Id.
at ¶ 2, 3.
C.

Course of proceedings in this action
        {¶ 8} On November 27, 2019, Lundeen filed the present prohibition action
in the court of appeals against Judge Burnside’s successor, Judge Deborah Turner,
and the county sheriff, asserting that Wells Fargo had failed to obtain service within




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one year of filing the complaint. Lundeen also contended that, with respect to Wells
Fargo’s standing to maintain a foreclosure action, the bank had offered
documentation that allegedly lacked evidentiary character. Lundeen sought an
emergency alternative writ preventing the imminent sheriff’s sale of the property
at issue, which had been scheduled for December 2, 2019.
         {¶ 9} The court of appeals issued an alternative writ staying the sheriff’s
sale during the pendency of the action, but on January 24, 2020, it dismissed the
cause sua sponte and vacated the alternative writ.1 The court of appeals held that
the present action was moot because the court had decided the same issues against
Lundeen in her appeal of the judgment in the foreclosure action as well as in her
2018 prohibition action. The court also held that the appeal in the foreclosure action
constituted an adequate remedy, precluding extraordinary relief.
         {¶ 10} Lundeen sought reconsideration and asked the court of appeals to
take judicial notice of the affidavit she had attached to her prohibition complaint—
specifically, her averment that she had not been served with any of the versions of
the complaint filed by Wells Fargo in the foreclosure case. The court of appeals
denied reconsideration. Lundeen has appealed as of right.
                                         II. ANALYSIS
         {¶ 11} To demonstrate entitlement to a writ of prohibition, Lundeen must
show (1) that Judge Burnside exercised judicial power in the foreclosure case, (2)
that Judge Burnside’s exercise of judicial power was unauthorized by law, and (3)
that denying the writ would result in an injury for which no other adequate remedy
exists in the ordinary course of law. State ex rel. Greene Cty. Bd. of Commrs. v.



1. The court of appeals also denied Wells Fargo’s motion to intervene as moot in light of the sua
sponte dismissal. Wells Fargo has filed a brief as an appellee in this court. Although the denial of
intervention below deprives Wells Fargo of standing to file a merit brief in this court, we will
consider the bank’s brief as an amicus brief supporting the appellees. See State ex rel. Citizen Action
for a Livable Montgomery v. Hamilton Cty. Bd. of Elections, 

115 Ohio St. 3d 437

, 2007-Ohio-5379,

875 N.E.2d 902

, ¶ 24.




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                                January Term, 2021




O’Diam, 

156 Ohio St. 3d 458

, 2019-Ohio-1676, 

129 N.E.3d 393

, ¶ 16. Sua sponte
dismissal by a court of appeals is proper “if the complaint ‘is frivolous or the
claimant obviously cannot prevail on the facts alleged in the complaint.’ ” State ex
rel. Kerr v. Pollex, 

159 Ohio St. 3d 317

, 2020-Ohio-411, 

150 N.E.3d 907

, ¶ 5,
quoting State ex rel. Scott v. Cleveland, 

112 Ohio St. 3d 324

, 2006-Ohio-6573, 

859
N.E.2d 923

, ¶ 14. Here the court of appeals dismissed the complaint because it
determined that Lundeen “obviously [could not] prevail in the present action”; it
deemed Lundeen’s claims moot and alternatively found that she had an adequate
remedy at law. 2020-Ohio-274, ¶ 8, 10.
       {¶ 12} In this appeal, Lundeen advances 14 propositions of law. They can
be grouped into four arguments. First, Lundeen argues that she has rebutted a
presumption of service by ordinary mail and that she has thereby demonstrated that
the trial court never obtained personal jurisdiction over her. Second, Lundeen
contends that the foreclosure action was never “commenced” against her for
purposes of Civ.R. 3(A) and R.C. 2305.17 because Wells Fargo failed to obtain
service on her within one year from the filing of the complaint. Third, Lundeen
argues that the foreclosure judgment is void because Wells Fargo lacked standing
to bring that action. Fourth, Lundeen contends that there was a procedural error in
the trial court with respect to the magistrate’s decision.
                   A. Lundeen’s cause of action was not moot
       {¶ 13} The court of appeals erred by holding that the prohibition action was
moot. “Cases are not moot when an actual controversy exists between adverse
litigants.” State ex rel. The Plain Dealer v. Ohio Dept. of Ins., 

80 Ohio St. 3d 513

,
517-518, 

687 N.E.2d 661

(1997), superseded by statute on other grounds as stated
in State ex rel. Besser v. Ohio State Univ., 

89 Ohio St. 3d 396

, 

732 N.E.2d 373

(2000). Because the record does not show that Lundeen’s claims evaporated by
virtue of the sale of the property or by the expiration of other interests that Lundeen




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                              SUPREME COURT OF OHIO




may have had in the foreclosure case, this prohibition action has not been shown to
be moot.
        {¶ 14} The court of appeals predicated its determination of mootness on the
fact that “Lundeen’s claim that respondent judge lacks jurisdiction based on the
failure of Wells Fargo to properly perfect service on her in the Foreclosure Case
has been rejected by this court in the [appeal of the foreclosure case].” 2020-Ohio-
274 at ¶ 7.    That fact relates not to mootness, however, but to whether the
prohibition claim is precluded under the doctrines of res judicata or collateral
estoppel. See State ex rel. Armatas v. Plain Twp. Bd. of Zoning Appeals, 160 Ohio
St.3d 161, 2020-Ohio-2973, 

154 N.E.3d 74

, ¶ 9 (res judicata bars a second action
when a court of competent jurisdiction has already entered a valid, final judgment
in an earlier action involving the same parties and arising out of the same
transaction or occurrence); Warrensville Hts. City School Dist. Bd. of Edn. v.
Cuyahoga Cty. Bd. of Revision, 

152 Ohio St. 3d 277

, 2017-Ohio-8845, 

95 N.E.3d
359

, ¶ 9 (collateral estoppel precludes relitigating in a second action an issue that
has been actually and necessarily litigated and determined in a prior action). And
res judicata is usually not a proper basis for a dismissal for failure to state a claim.
See Neguse, 

161 Ohio St. 3d 125

, 2020-Ohio-3533, 

161 N.E.3d 571

, at ¶ 10.
    B. Lundeen’s opportunity to assert service and personal-jurisdiction
  defenses in the foreclosure case and on appeal was an adequate remedy at
                                          law
        {¶ 15} Although the court of appeals erred in its mootness determination,
we agree with its second stated ground for sua sponte dismissal. Lundeen had a
fully adequate remedy in the opportunity to assert her personal-jurisdiction and
insufficient-service defenses in her Civ.R. 12(B) motion in the foreclosure case—
and if she had asserted them and they had been rejected by the trial court, she could
have pursued them further on appeal.




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                                 January Term, 2021




    1. The ordinary course of law provides adequate remedies for insufficient
   service, which is an issue of personal rather than subject-matter jurisdiction
       {¶ 16} Prohibition will usually lie only when a court acts or attempts to act
in the absence of subject-matter jurisdiction. See State ex rel. Tubbs Jones v. Suster,

84 Ohio St. 3d 70

, 73-74, 

701 N.E.2d 1002

(1998). In limited circumstances,
however, we have recognized that prohibition may lie based on a lack of personal
jurisdiction. See State ex rel. Connor v. McGough, 

46 Ohio St. 3d 188

, 

546 N.E.2d
407

(1989) (writ of prohibition granted to bar an Ohio civil action for wrongful
death, because the accident occurred in Germany and the defendant was a resident
of Germany with no contacts with Ohio).
       {¶ 17} This exception is very limited.         When a prohibition claim is
predicated on defective service, “[i]f contested allegations of defective service of
process are not premised upon a complete failure to comply with the minimum-
contacts requirement of constitutional due process, prohibition does not lie.” State
ex rel. Suburban Constr. Co. v. Skok, 

85 Ohio St. 3d 645

, 646, 

710 N.E.2d 710

(1999); see also State ex rel. Downs v. Panioto, 

107 Ohio St. 3d 347

, 2006-Ohio-8,

839 N.E.2d 911

, ¶ 28.
       {¶ 18} Moreover, to the extent that a failure of service deprives a trial court
of jurisdiction to proceed, even a defendant with no actual notice of the pending
action may obtain relief directly from the trial court by petitioning the trial court to
vacate the judgment on the ground that she was not properly served. See Lincoln
Tavern, Inc. v. Snader, 

165 Ohio St. 61

, 65, 69, 

133 N.E.2d 606

(1956); TCC Mgt.,
Inc. v. Clapp, 10th Dist. Franklin No. 05AP-42, 2005-Ohio-4357, ¶ 9-10; accord
Patton v. Diemer, 

35 Ohio St. 3d 68

, 70, 

518 N.E.2d 941

(1988) (holding that a trial
court has inherent authority to vacate its own void judgments).
       {¶ 19} On the other hand, when a defendant such as Lundeen does have
notice of the lawsuit against her, she may raise the failure of service right away by
asserting lack of personal jurisdiction and insufficiency of service as permitted by




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the civil rules. “[W]hen the affirmative defense of insufficiency of service of
process is properly raised and properly preserved, a party’s active participation in
litigation of a case does not constitute waiver of that defense.” Gliozzo v. Univ.
Urologists of Cleveland, Inc., 

114 Ohio St. 3d 141

, 2007-Ohio-3762, 

870 N.E.2d
714

, ¶ 11. Indeed, “[t]he only way in which a party can voluntarily submit to a
court’s jurisdiction * * * is by failing to raise the defense of insufficiency of service
of process in a responsive pleading or by filing certain motions before any
pleading.”

Id. at ¶ 13.

        {¶ 20} The present case exemplifies the adequacy of Lundeen’s remedy,
even as it also shows that a litigant may waive that remedy. To use the language
we used in Gliozzo, Lundeen voluntarily submitted to the jurisdiction of the
common pleas court in the foreclosure action by filing a Civ.R. 12(B) motion to
dismiss without asserting insufficiency of service or lack of personal jurisdiction as
a defense. Wells Fargo, 2020-Ohio-28, at ¶ 13-15.
        {¶ 21} Lundeen cites Maryhew v. Yova, 

11 Ohio St. 3d 154

, 

464 N.E.2d 538

(1984), but that case undermines her position. Unlike Lundeen, the defendants in
Maryhew did assert lack of personal jurisdiction and insufficiency of service in their
motion to dismiss. Thus, unlike Lundeen, they did not waive those defenses and
submit to the trial court’s jurisdiction.
        {¶ 22} The foregoing discussion establishes why Lundeen’s claim that she
was never in fact served cannot be the basis for a writ of prohibition in this case.
Lundeen argues that the ordinary-mail service of the third amended complaint in
the foreclosure case did not actually reach her. Lundeen attached an affidavit to
her complaint in this case that recites, “I was never served with the complaint or
any of the subsequent amended complaints,” and she contends that her affidavit has
rebutted the presumption of ordinary-mail service. See Civ.R. 4.6(D) (service
“deemed complete when the fact of mailing is entered of record”); TCC Mgt., 2005-
Ohio-4357, at ¶ 13-14 (in the context of a motion to vacate a void judgment, the




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                                      January Term, 2021




presumption of service may be rebutted by evidence demonstrating nonservice).
But prohibition cannot lie, because Lundeen had an adequate remedy for a failure
of service either by raising the issue in the foreclosure case and on appeal or by
filing a postjudgment motion to vacate a void judgment.2
      2. “Failure to commence” a civil action does not constitute a separate
                      jurisdictional defense from a failure of service
         {¶ 23} The premise of several of Lundeen’s propositions of law is that a
plaintiff’s “failure to commence” an action by failing to achieve timely service is a
special and different defense from lack of personal jurisdiction and insufficiency of
service. The argument relies on Civ.R. 3(A), which provides that “[a] civil action
is commenced by filing a complaint with the court, if service is obtained within one
year from such filing upon a named defendant * * *.” See also R.C. 2305.17 (“An
action is commenced * * * by filing a petition in the office of the clerk of the proper
court together with a praecipe demanding that summons issue or an affidavit for
service by publication, if service is obtained within one year”).
         {¶ 24} We do not agree that a “failure to commence” is a separate defense.
“The upshot of [Civ.R. 3(A) and R.C. 2305.17] is that to comply with the statute of
limitations, an action must be ‘commenced’ within the limitations period,” and
commencement “occurs when the action is filed within the limitations period and
service is obtained within one year of that filing.” Moore v. Mt. Carmel Health
Sys., 

162 Ohio St. 3d 106

, 2020-Ohio-4113, 

164 N.E.3d 376

, ¶ 16. None of the
cases Lundeen cites supports her theory that a “failure to commence” is a defense
separate from a statute-of-limitations defense, nor do they establish that a “failure




2. Notably, a motion to vacate based on insufficient service would have no merit here. As discussed,
Lundeen waived the service issue and submitted to the jurisdiction of the common pleas court when
she filed a motion to dismiss in the foreclosure case without asserting insufficiency of service. See
Wells Fargo, 2020-Ohio-28, at ¶ 15-16. Because Lundeen submitted to the trial court’s jurisdiction,
its judgment could not be void due to an alleged insufficiency of the service of process.




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                              SUPREME COURT OF OHIO




to commence” affects the subject-matter jurisdiction of the court. Lundeen’s
argument in this regard is therefore not a basis for obtaining a writ of prohibition.
        3. Lundeen’s remedies at law were adequate with respect to her claims of
                            lack of standing and procedural error
        {¶ 25} Lundeen asserts that the trial court lacked jurisdiction over the
foreclosure action because Wells Fargo did not prove its standing to maintain the
action. But a plaintiff’s alleged lack of standing to sue on a note and maintain a
foreclosure action does not affect the subject-matter jurisdiction of a common pleas
court to entertain a foreclosure action. Bank of Am., N.A. v. Kuchta, 

141 Ohio St. 3d
75

, 2014-Ohio-4275, 

21 N.E.3d 1040

, ¶ 22-23.           Moreover, Lundeen had an
adequate remedy in her pursuit of an appeal from the common pleas court’s
rejection of her standing arguments. Lack of standing in this context is therefore
not a basis for relief in prohibition.
        {¶ 26} Finally, the claim of procedural error that Lundeen raises regarding
the magistrate’s decision forms no basis for relief in prohibition, because it does
not concern the jurisdiction of the trial court and because Lundeen had an adequate
remedy through the appeal of the foreclosure judgment.
                                 III. CONCLUSION
        {¶ 27} For the foregoing reasons, we affirm the judgment of the court of
appeals.
                                                                 Judgment affirmed.
        O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
                                 _________________
        Cynthia Lundeen, pro se.
        Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Michael J. Stewart, Assistant Prosecuting Attorney, for appellees.




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                             January Term, 2021




       Thompson Hine, L.L.P., and Scott A. King, urging affirmance for amicus
curiae, Wells Fargo Bank, N.A.
                             _________________




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