[Cite as State ex rel. Cunningham v. Pittman, 2023-Ohio-4094.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY

STATE OF OHIO ex rel.

PAUL CUNNINGHAM, et al.,

Relators,

- vs -

THE HONORABLE LAURIE J. PITTMAN,

Respondent.

CASE NO. 2023-P-0060

Original Action for Writ of Prohibition

P E R C U R I A M

O P I N I O N

Decided: November 13, 2023

Judgment: Petition dismissed

Jeff R. Laybourne, Donald J. Malarcik, and Daniel D. Eisenbrei, Malarcik, Pierce, Munyer 

& Will, 121 South Main Street, Suite 520, Akron, OH 44308 (For Relators).

Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant 

Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent). 

PER CURIAM.

{¶1} On August 10, 2023, relators, Paul, Nancy, and Erik Cunningham,

commenced this original action by filing a “Complaint for Writ of Prohibition” against 

Respondent, the Honorable Laurie J. Pittman.

{¶2} The complaint alleged that the trial court scheduled a jury trial in Erik 

Cunningham’s criminal case in the Portage County Court of Common Pleas, case number 

2019CR00022. Relators argued that respondent was without jurisdiction to schedule trial 
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because Paul and Nancy had appealed to this Court after the respondent denied their 

motion to intervene in the criminal case.

{¶3} At the time of relators’ filing, Paul and Nancy Cunningham’s appeal was still 

pending. However, on September 18, 2023, this Court issued an opinion dismissing Paul 

and Nancy Cunningham’s appeal in State v. Cunningham, 11th Dist. Portage No. 2021-

P-0049, 2023-Ohio-3300. Over dissent, that opinion held that Paul and Nancy 

Cunninham’s cell phone data “remains under seal and is thus protected from publication. 

No one, outside of those who have already viewed the data pursuant to the search 

warrant, is permitted to know what is on the Cunninghams’ phones. Those few who have 

reviewed the data cannot disclose the information to anyone—not even to the 

prosecutor—without an additional court order. This change in circumstances creates an 

issue of ripeness.” Id. at ¶ 14. Thus, the majority held that Paul and Nancy Cunningham’s 

motion to intervene was not ripe because the State’s access to the data was a contingent 

event that may never occur. Id. at ¶ 16.

{¶4} On September 22, 2023, we ordered relators to show cause as to why their 

complaint for writ of prohibition was not moot due to the release of our opinion. Relators 

filed their responses to this Court’s show cause order and also filed a motion to stay all 

trial court proceedings. Relators argue that Paul and Nancy’s cell phone data will be 

unsealed upon the resolution of the underlying criminal case. Respondent opposed these 

motions and relators replied.

{¶5} On September 27, 2023, Paul and Nancy Cunningham filed an Application 

for Reconsideration of this Court’s September 18 opinion dismissing their appeal.
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{¶6} On October 26, 2023, this Court denied Paul and Nancy Cunningham’s 

Application for Reconsideration, again over dissent.

Law and Analysis

{¶7} Sua sponte dismissal of a complaint for writ of prohibition is warranted if the 

complaint is frivolous or the relator obviously cannot prevail on the facts alleged in the 

complaint. State ex rel. Jones v. Garfield Hts. Mun. Court, 77 Ohio St.3d 447, 448, 674 

N.E.2d 1381 (1997).

{¶8} “A writ of prohibition is an extraordinary judicial writ issuing out of a court of 

superior jurisdiction and directed to an inferior tribunal commanding it to cease abusing 

or usurping judicial functions.” State ex rel. Jones v. Paschke, 11th Dist. Geauga No. 

2021-G-0013, 2021-Ohio-2889, ¶ 11, citing State ex rel. Tubbs Jones v. Suster, 84 Ohio

St.3d 70, 73, 701 N.E.2d 1002 (1998). “The purpose of a writ of prohibition is to restrain 

inferior courts and tribunals from exceeding their jurisdiction.” Id. A writ of prohibition is 

an extraordinary remedy and therefore to be granted with caution and restraint and only 

in cases of necessity arising from the inadequacy of other remedies. Id.

{¶9} To be entitled to a writ of prohibition, a relator must establish that (1) the 

respondent is about to exercise judicial or quasi-judicial power, (2) the exercise of that 

power is unauthorized by law, and (3) denying the writ would result in injury for which no 

other adequate remedy exists in the ordinary course of law. State ex rel. Bell v. Pfeiffer,

131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 18.

{¶10} When relators filed this writ of prohibition, this Court had not yet released 

its opinion dismissing Paul and Nancy Cunningham’s appeal as unripe. However, that 
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opinion has now been released and reconsideration denied. The trial court’s scheduling 

of a trial date does not alter the clear holding in that case that the State’s access to the 

data was a contingent event that may never occur. 

{¶11} Further, relators’ argument that Paul and Nancy’s cell phone data will be 

released upon the conclusion of Erik’s criminal case is unavailing. The trial has not yet 

started and there is no indication that respondent has exercised or is about to exercise 

judicial power to release the cell phone data. 

{¶12} Accordingly, relators’ “Complaint for Writ of Prohibition” is dismissed. Any 

pending motions are hereby overruled as moot.

JOHN J. EKLUND, P.J., MARY JANE TRAPP, J., EUGENE A. LUCCI, J., concur.