COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 82589 IN RE: PHILIP EPSTEIN : PETITION FOR WRIT : OF PROHIBITION PETITIONER : : -vs- : JOURNAL ENTRY AND OPINION : TIMOTHY FLANAGAN, JUDGE : : RESPONDENT : DATE OF JOURNALIZATION: MARCH 27, 2003 JUDGMENT: DISMISSED APPEARANCES: FOR RELATOR: FOR RESPONDENT: MICHAEL J. O'SHEA, ESQ. WILLIAM D. MASON, ESQ. Suite 450, Lakeside Place CUYAHOGA COUNTY PROSECUTOR 323 Lakeside Avenue 9th Floor, Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 JOSEPH G. STAFFORD, ESQ. STAFFORD & STAFFORD CO. LPA 323 West Lakeside Ave., SW 380 Lakeside Place Cleveland, Ohio 44113 -2- ANN DYKE, P.J.: On March 10, 2003, the petitioner, Philip Epstein, commenced this prohibition action against the respondent, Judge Timothy Flanagan, to prevent the respondent from requiring Mr. Epstein from testifying any further in the underlying case, Amy Sue Epstein v. Philip Epstein, Cuyahoga County Common Pleas Court, Domestic Division, Case No. D-263882. For the following reasons, this court dismisses this prohibition action, sua sponte. Mr. Epstein, the defendant in the underlying case, alleges that both the trial judge and counsel for the plaintiff have indicated that he (Mr. Epstein) might face criminal charges for perjury and illegal transactions concerning the personal and real property at issue. Thus, upon the advice of counsel he invoked his Fifth Amendment right against self-incrimination and refused to answer further questions relating to the property. The trial judge then instructed him to answer the questions. When Mr. Epstein continued to invoke the Fifth Amendment, the trial judge held him in contempt and sentenced him to thirty days in the Cuyahoga County Jail; Mr. Epstein would be released upon answering the questions as ordered by the court. The court journalized this judgment on March 10, 2003. Simultaneously with the filing of this writ action, Mr. Epstein also filed for a writ of habeas corpus to secure his release from jail. The application for this writ of prohibition -3- explained that its purpose is to prevent the respondent judge (after the writ of habeas corpus is granted) from doing the same thing all over again, i.e., require Mr. Epstein to answer questions and then hold him in contempt when he invokes his Fifth Amendment right against self-incrimination. However, this court has dismissed the habeas corpus action. In re: Epstein v. McFaul (Mar. 11, 2003), Cuyahoga App. No. 82590. Thus, the premise for this writ is ill-founded. Moreover, Mr. Epstein has failed to establish the requisites for a writ of prohibition. The principles governing prohibition are well established. Its requisites are (1) the respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is no adequate remedy at law. State ex rel. Largent v Fisher (1989), 43 Ohio St.3d 160, 540 N.E.2d 239. Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause which it is attempting to adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe (1941), 138 Ohio St. 417, 35 N.E.2d 571, paragraph three of the syllabus. "The writ will not issue to prevent an erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction." State ex rel. Sparto v. Juvenile Court of Darke County (1950), 153 Ohio St. 64, 65, 90 N.E.2d 598. Furthermore, it should be used with great caution and -4- not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas (1940), 137 Ohio St. 273, 28 N.E.2d 273; Reiss v. Columbus Municipal Court (App. 1956), 76 Ohio Law Abs. 141, 145 N.E.2d 447. Nevertheless, when a court is patently and unambiguously without jurisdiction to act whatsoever, the availability or adequacy of a remedy is immaterial to the issuance of a writ of prohibition. State ex rel. Tilford v. Crush (1988), 39 Ohio St.3d 174, 529 N.E.2d 1245 and State ex rel. Csank v. Jaffe (1995), 107 Ohio App.3d 387, 668 N.E.2d 996. However, absent such a patent and unambiguous lack of jurisdiction, a court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction. A party challenging the court's jurisdiction has an adequate remedy at law via appeal from the court's holding that it has jurisdiction. State ex rel. Rootstown Local School District Board of Education v. Portage County Court of Common Pleas (1997), 78 Ohio St.3d 489, 678 N.E.2d 1365 and State ex rel. Bradford v. Trumbull County Court, 64 Ohio St.3d 502, 1992-Ohio-116, 597 N.E.2d 116. In the present case, the Domestic Relations Division of the Common Pleas Court has jurisdiction in contempt. R.C. 2705.01, et seq. and State ex rel. Alicia Frazer v. Administrator/Director Juvenile Court Detention Home (Nov. 3, 1995), Cuyahoga App. No. 69767. Holding Mr. Epstein in contempt for invoking his Fifth Amendment right against self-incrimination may have been in error, -5- but if it was, such was an error within the jurisdiction, the power, of the court.1 Moreover, as this court ruled in In re: Epstein v. McFaul, appeal is an adequate remedy for determining whether the respondent judge erred in holding Mr. Epstein in contempt. Furthermore, Mr. Epstein 's reliance on State ex rel. News Herald v. Ottawa County Court of Common Pleas, Juvenile Division, 77 Ohio St.3d 40, 1996-Ohio-354, 671 N.E.2d 5, is misplaced. It does not stand for the proposition that prohibition is a remedy for a direct violation of a relator's constitutional right. Rather, its narrow holding is that prohibition is the remedy for the sui generis issue of closure of court proceedings. Therefore, the requisites for a writ of prohibition cannot be fulfilled, and this court dismisses the application for a writ of prohibition. Petitioner to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B). COLLEEN CONWAY COONEY, J., AND DIANE KARPINSKI, J., CONCUR. ANN DYKE PRESIDING JUDGE 1 The court is not opining on the propriety of the judge's actions. .