Opinion
No. 87-412
Decided July 29, 1987.
Prohibition — Writ granted, when — Respondents have engaged in continuing and vexatious abuse of judicial process by instituting duplicative proceedings in multiple jurisdictions — Extraordinary circumstances present.
IN PROHIBITION.
In 1981, relator, J. Norman Stark ("Stark"), was employed by respondents, Lewis W. Baker and his wife Elizabeth V. Baker ("Bakers"), to defend them in a lawsuit filed by R.A. Lafferty Construction Co., Inc. for specific performance of a construction contract which the Bakers had signed. In 1982, after the completion of the trial in that case, in which a verdict was returned by the jury finding neither for the plaintiff nor for the Bakers, the Bakers fired Stark as their attorney and refused to pay his fee for representing them during the trial.
In May 1982, Stark filed a suit against the Bakers to collect the unpaid fee. Stark obtained a judgment against the Bakers in April 1983 and proceeded to execute the judgment.
Since February 1984, the Bakers have instituted at least four separate lawsuits against Stark and other parties in the Court of Common Pleas of Cuyahoga County, the Court of Common Pleas of Summit County and the United States District Court for the Northern District of Ohio raising various causes of action for wrongful attachment, legal malpractice, fraud and deceit, conspiracy to violate civil rights and intentional, reckless and/or negligent infliction of emotional distress. Each of those suits derived from allegations made by the Bakers concerning Stark's representation of the Bakers in 1981 and 1982, and his subsequent attempts to collect his fee for that representation.
On or about February 1987, the Court of Common Pleas of Summit County scheduled a trial for March 16, 1987 in case No. CV 84-2-0562, one of the suits filed by the Bakers against Stark. Although a judgment in favor of Stark had previously been rendered in that case, it was subsequently vacated and the case is now pending in that court.
On March 6, 1987, Stark filed a petition with this court for a writ of prohibition to prevent the Summit County trial court from proceeding with any hearing, trial or decision in case No. CV 84-2-0562. The petition alleges that the Bakers are wrongfully attempting to relitigate claims and issues which have already been decided adversely to them in four other state and federal court cases.
On March 24, 1987, the Bakers filed a motion to dismiss the petition. On April 1, 1987, the Summit County Court of Common Pleas filed its answer to the petition.
On April 7, 1987, Stark filed a brief in opposition to the Bakers' motion, and a motion for summary judgment on the petition for a writ of prohibition.
J. Norman Stark, pro se. George W. Spittal, for respondents Lewis W. Baker and Elizabeth V. Baker.
Lynn C. Slaby, prosecuting attorney, and Evan J. Palik, for respondent Court of Common Pleas of Summit County.
In this case, relator seeks a peremptory writ of prohibition to prevent the Summit County trial court from taking any further action in case No. CV 84-2-0562.
The writ of prohibition is a high prerogative writ to be used with great caution in the furtherance of justice and only where there is no other regular, ordinary, and adequate remedy. State, ex rel. Nolan, v. ClenDening (1915), 93 Ohio St. 264, 112 N.E. 1029; State, ex rel. Garrison, v. Brough (1916), 94 Ohio St. 115, 113 N.E. 683; State, ex rel. Emery-Thompson Mach. Supply Co., v. Jones (1917), 96 Ohio St. 506, 118 N.E. 115. As is the case with an alternative writ, a peremptory writ of prohibition should not be issued on the pleadings in the absence of extraordinary circumstances. See Section 3, Rule VIII of the Supreme Court Rules of Practice.
The record in this case indicates that the Bakers have engaged in a continuing and vexatious abuse of the judicial process by instituting duplicative proceedings in multiple jurisdictions. We find that those actions constitute such extraordinary circumstances that the issuance of a peremptory writ of prohibition is justified.
The Bakers' motion to dismiss is hereby denied. In view of the continuing abuse of process evidenced by the proceedings below, and in the furtherance of judicial economy, we find that good cause has been shown for relator's motion for summary judgment, and that motion is granted.
A peremptory writ of prohibition is hereby allowed.
Writ allowed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.