COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74221 STATE OF OHIO, EX REL. : ROBERT O. GARNETT, : PETITION FOR WRIT OF : PROHIBITION Relator : : MOTION NO. 93251 -vs- : : JOURNAL ENTRY AND OPINION JUDGE TIMOTHY P. McCORMICK, : : Respondent : DATE OF ANNOUNCEMENT OF DECISION: MARCH 27, 1998 JUDGMENT: WRIT DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Relator: Robert O. Garnett ROBERT O. GARNETT CO., L.P.A. 20475 Farnsleigh Road Suite 306 Shaker Heights, Ohio 44122 For Respondent: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 -2- O'DONNELL, P.J.: Robert Garnett, relator, is seeking a writ of prohibition to prevent the commencement of trial in Cuyahoga County Common Pleas Case No. CV-332259 before respondent, Judge Timothy P. McCormick. Relator contends the Affidavit of Disqualification he sent to the Supreme Court of Ohio less than two days before trial divested respondent of jurisdiction to proceed. Relator has provided no documentationin support of his petition, has cited to no case law to support his position, and has failed to comply with Loc.App.R. 8 which requires an affidavit detailing his claim. For the following reasons we sua sponte dismiss this action for failing to state a claim in prohibition. In order to obtain the extraordinary writ of prohibition, relator has the burden of proving that respondent is about to exercise judicial authority, that the exercise of this power is unauthorized,and that relator has no other adequate remedy in the ordinary course of the law if the writ were denied. State ex rel. McKee v. Cooper (1974), 40 Ohio St.2d 65, 320 N.E.2d 286, paragraph one of the syllabus. Absent a patent and unambiguous lack of jurisdiction, a court having general jurisdiction of the subject matter can determine its own jurisdiction and a party challenging the jurisdiction of the court has an adequate remedy at law via appeal. State ex rel. Enyart v. O'Neill (1995), 71 Ohio St.3d 655, 646 N.E.2d 1110. The mere mailing of an affidavit of disqualification does not divest a court of jurisdiction. The clerk of the supreme court must first accept the affidavit. By -3- statute, the clerk is not to accept untimely affidavits. R.C. 2701.03(C)(2). Relator did not indicate in his petition whether the clerk of the supreme court accepted his affidavit. Additionally, even if the affidavit were accepted by the clerk, the judge against whom the affidavit is directed may still proceed in the matter before him or her if it is undeniably clear that an affidavit of disqualification does not comport with the requirements of R.C. 2701.03. In Re Disqualification of Cleary (1990), 74 Ohio St.3d 1225, 657 N.E.2d 1337. Otherwise, attorneys may utilize affidavits of prejudice as a tactic to delay trial proceedings. Rife v. Morgan (1995), 106 Ohio App.3d 843, 667 N.E.2d 450. Relator stated in his petition that respondent made this initial determination concerning the affidavit and decided to proceed with trial. Relator has an adequate remedy of appeal if respondent is acting without authority prior to any ruling on the affidavit of disqualification by the Chief Justice of the Supreme Court of Ohio. Finally, absent the affidavit required by Loc.App.R. 8(B)(1), the petition for writ of prohibition is fatally defective. State ex rel. Jeroncic v. Reuben (July 24, 1991), Cuyahoga App. No. 62150, unreported. Case dismissed. Costs to relator. LEO M. SPELLACY, J., and KENNETH A. ROCCO, J., CONCUR ______________________________ TERRENCE O'DONNELL PRESIDING JUDGE .