COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74104 STATE OF OHIO EX REL., : DEBORAH M. COLONNA : : ORIGINAL ACTION Relator : : MOTION NOS. 92987, -vs- : 93172, 93633 : JUDGE THOMAS PATRICK CURRAN : : Respondent : : DATE OF ANNOUNCEMENT OCTOBER 22, 1998 OF DECISION: CHARACTER OF PROCEEDING: WRIT OF PROHIBITION AND MANDAMUS JUDGMENT: WRIT GRANTED IN PART AND DENIED IN PART. DATE OF JOURNALIZATION: APPEARANCE: For Petitioner: ALAN E. JOHNSON, ESQ. Ward & Associates 1265 West Sixth Street, 4th Fl. Cleveland, Ohio 44113 For Respondent: GREGORY B. ROWINSKI, ESQ. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.: Relator is the plaintiff in Colonna v. Hardiman, Cuyahoga County Court of Common Pleas Case No. CV-315088, which has been -2- assigned to respondent. After a jury trial, respondent entered judgment for relator in the amount of $7,200.00 by entry received for filing on September 12, 1997. None of the parties appealed the judgment. Defendants in Case No. CV-315088 filed a Motion for Interpleader Pursuant to Ohio Rule of Civil Procedure 22 on January 28, 1998 ( Motion for Interpleader ). In the Motion for Interpleader, the defendants requested permission to pay the proceeds to the clerk of the court of common pleas. They also requested that respondent order an appropriate distribution of the proceeds of the judgment. Motion for Interpleader, at 5, Exh. F-1 to relator's brief in opposition to respondent's motion and relator's motion for summary judgment ( Relator's Motion ). By entries received for filing on January 30, 1998 and February 5, 1998, respondent granted the Motion for Interpleader without mentioning depositing the funds. Relator's Motion, Exhs. C and D. By entry received for filing on February 17, 1998, respondent notified the parties and counsel that the funds had been deposited with the clerk. Relator's Motion, Exh. E. Relator filed this original action on March 10, 1998. This court granted relator's application for alternative writ prohibiting respondent from further proceedings in Case No. CV- 315088. Respondent filed a motion to dismiss or, in the alternative, motion for summary judgment (Motion No. 92987-- Respondent's Motion ), relator filed a combined brief in -3- opposition and motion for summary judgment (Motion No. 93172-- Relator's Motion ) and respondent filed a brief in opposition. Relator requests that this court prohibit respondent from proceeding in interpleader and that this court order the clerk of the court of common pleas to pay the $7,200.00 judgment amount in the clerk's custody to relator without poundage (or compelling respondent judge to enter an order requiring the clerk to make payment to relator). For the reasons stated below, we grant relator's request for relief in prohibition preventing respondent from proceeding in interpleader in Case No. CV-315088 but deny relator's request for relief in mandamus to compel payment of the funds without poundage. Relator contends that respondent was without authority to proceed in interpleader after the entry of judgment in Case No. CV- 315088. Respondent concedes that [i]nterpleader is not appropriate after the entry of judgment. Respondent's Motion, at 5. This court previously held that a trial court does not have the authority to modify its judgment by granting a motion for interpleader after the entry of judgment. Howard v. Mar-Pel's Beauty Academy (Oct. 8, 1987), Cuyahoga App. No. 53453, unreported (the trial court had no authority to grant a motion by defendant/judgment debtorto interplead plaintiff and a creditor of plaintiff after entering judgment for plaintiff). In light of the patent and unambiguous lack of jurisdiction to proceed in interpleader after the entry of judgment, relief in prohibition is appropriate to prevent respondent judge from proceeding in -4- interpleader in Case No. CV-315088. See, e.g., State ex rel. Hunter v. Summit Cty. Human Resource Comm. (1998), 81 Ohio St.3d 450, 451-452, __ N.E.2d __. The clerk, however, is not a party to this action. See State ex rel. Keener v. Amberley (1997), 80 Ohio St.3d 292, 685 N.E.2d 1247 (failure to name proper respondents and naming respondents who did not have a duty to perform any of the requested acts resulted in dismissal). Yet, relator requests that this court issue a writ of mandamus compelling the clerk of the court of common pleas to pay the $7,200.00 judgment amount in the clerk's custody to relator without poundage (or compelling respondent judge to enter an order requiring the clerk to make payment to relator). The fundamental criteria for issuing a writ of mandamus are well-established: In order to be entitled to a writ of mandamus, relator must show (1) that he has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that relator has no plain and adequate remedy in the ordinary course of the law. State, ex rel. National City Bank, v. Bd. of Education (1977), 52 Ohio St. 2d 81. State ex rel. Harris v. Rhodes (1978), 54 Ohio St.2d 41, 42, 374 N.E. 2d 641. Of course, all three of these requirements must be met in order for mandamus to lie. Relator requests that this court compel the clerk to pay the funds in the clerk's custody to relator without poundage (or compel respondent judge to enter an order requiring the clerk to make payment to relator). Relator does not, however, provide any basis on which this court could conclude that the clerk has a clear legal -5- duty to pay the funds or that relator has a clear legal right to receive the funds. Indeed, neither party identified any authority as setting forth the clerk's responsibilities. Nevertheless, the general assembly has provided guidance: [T]he clerk [of the court of common pleas] shall charge the following fees and not more: * * * (V) A commission of two per cent on the first ten thousand dollars and one per cent on all exceeding ten thousand dollars for receiving and disbursing money, other than costs and fees, paid to or deposited with the clerk of courts in pursuance of an order of court or on judgments, including moneys invested by order of the court and interest earned on them[.] Obviously, the clerk has a clear legal duty to include poundage-- i.e., the commission--on the funds received from the defendant in Case No. CV-315088. Mandamus does not, therefore, lie to compel the clerk to pay the funds to relator without poundage or to compel respondent judge to enter an order requiring the clerk to make payment to relator without poundage. Additionally,respondent's argument that a party may not join in one proceeding requests for relief under two different original actions--i.e., mandamus and prohibition--is not well-taken. Loc.App.R. 1(B) and 8(B)(1) provide that the Ohio Rules of Civil Procedure govern original actions. Civ.R. 18 authorizes the joinder of claims. Furthermore, examples of proceedings in which a party requested relief under two different original actions abound. See, e.g., State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 656 N.E.2d 1288 (writs of mandamus and prohibition -6- issued regarding domestic relations court, judge and referee; dismissal of original actions brought against juvenile court and judge affirmed). Accordingly, relator's request for relief in prohibition is granted to the following, limited extent: in Case No. CV-315088, respondent is prohibited from further proceedings in interpleader or to enforce the motion for interpleader previously granted by respondent. Relator's request for relief in mandamus to compel the clerk of the court of common pleas to pay the funds in the clerk's custody to relator without poundage (or compelling respondent judge to enter an order requiring the clerk to make payment without poundage to relator) is denied. We note specifically, however, that this court's decision in this action does not restrict respondent's authority to instruct the clerk or the parties in Case No. CV-315088 regarding the disposition of the funds in the custody of the clerk. Respondent to pay costs. Judgment accordingly. ANN DYKE, J., CONCURS. TIMOTHY E. McMONAGLE, J., DISSENTING IN PART. (SEE ATTACHED DISSENTING OPINION) PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74104 STATE OF OHIO EX REL. : DEBORAH M. COLONNA : : D I S S E N T I N G Relator : vs. : O P I N I O N : JUDGE THOMAS PATRICK CURRAN : : Respondent : DATE: OCTOBER 22, 1998 TIMOTHY E. McMONAGLE, J., DISSENTING IN PART: While I concur with the majority's decision today wherein the relator's request for relief in prohibition is granted and respondent is prevented from proceeding in interpleader in case no. 315088, I must respectfully dissent from that part of the majority opinion wherein it denies relator's request for relief in mandamus to compel release of the deposited funds without poundage. The majority bases its denial of request for mandamus on the fact that the Clerk of Courts is not a party to the action. However, the majority then notes in its decision that the respondent's authority is not restricted by this opinion and that respondent may instruct the Clerk or the parties in case no. 315088 regarding the disposition of the funds. Because I do not see any barrier to granting mandamus relief ordering respondent-judge to order the Clerk to release the funds, I must respectfully dissent. Quite simply, respondent, without jurisdiction to do so, appropriated the judgment funds of relator ex parte and ordered the -2- funds to be paid to the Clerk of Courts. A long line of cases decided by our Supreme Court has held relief in prohibition and mandamus to be appropriate to correct the results of prior jurisdictionally unauthorized actions when an inferior court patently and unambiguously lacked jurisdiction in the first place. In State ex rel. Dannaher v. Crawford (1997), 78 Ohio St.3d 391, 393, the court stated where a lower court patently and unambiguously lacks jurisdiction over the cause, prohibition and mandamus will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions, notwithstanding the availability of an appeal (emphasis added); in State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 161-164, the court found that the domestic relations court patently and unambiguously lacked jurisdiction to proceed in the divorce action, and appellants were entitled to writs of mandamus and prohibition vacating all orders entered by the court following a notice of dismissal; and in State ex rel. Adams v. Gusweiler (1972), 30 Ohio St.2d 326, 330, the court determined that a court which has jurisdiction to issue writs of prohibition and mandamus has plenary power, not only to prevent excesses of lower tribunals, but to correct the results thereof and to restore the parties to the same position they occupied before the excesses occurred. These cases involved vacating orders which were entered by the court without the jurisdiction to do so, thereby correcting the effect of such an order and restoring the parties as they were before the order. If mandamus relief is -3- available to correct the effects of orders entered without jurisdiction to do so as the case law states, then merely vacating the order granting interpleader relief stops short of correcting the error in this case because the deposit of the funds occurred as a result of issuing an order it did not have jurisdiction to enter. Consequently,to correct the effect of the respondent's order entered without jurisdiction, I would grant relator's request in mandamus and order respondent to issue an order to the Clerk of Courts requiring the Clerk to release the funds within the Clerk's .