[Cite as State ex rel. West v. McDonnell, 2013-Ohio-1043.]

 Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99085 

STATE OF OHIO EX REL., 

TIMOTHY WEST 

RELATOR 

vs. 

HONORABLE NANCY MCDONNELL 

RESPONDENT 

JUDGMENT:

WRIT DISMISSED 

Writ of Prohibition 

Motion No. 460224 

Order No. 462933 

RELEASE DATE: March 20, 2013 
FOR RELATOR

Timothy West, Pro Se 

Inmate No. 604-876 

Richland Correctional Institution 

P.O. Box 8107 

1001 Olivesburg Road 

Mansfield, OH 44901 

ATTORNEYS FOR RESPONDENT 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: James E. Moss 

Assistant County Prosecutor 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
MELODY J. STEWART, A.J.: 

{¶1} On October 23, 2012, the relator, Timothy West, commenced this prohibition 

action to vacate and correct an order forfeiting and/or clarifying an order of forfeiture for 

a piece of real property in the underlying case, State v. Timothy West & Todd West,

Cuyahoga C.P. No. CR-548609. In Count 1, he claims that the trial judge did not have 

jurisdiction to issue the subject order because of the transfer of jurisdiction principle; he 

had appealed the underlying case, that deprived the judge of jurisdiction to issue an order 

interfering with this court’s jurisdiction to affirm, reverse, or modify the trial court’s 

judgment. In Count 2, he argues that the indictment specified only Permanent Parcel 

No. 004-10-005 as subject to forfeiture. Thus, the trial court did not have the 

jurisdiction to forfeit Permanent Parcel No. 004-10-006 that was part of the subject 

property. On November 16, 2012, the respondent filed a motion to dismiss. On 

December 3, 2012, Timothy West filed his brief in opposition. For the following 

reasons, this court grants the trial judge’s motions to dismiss. 

{¶2} In the underlying case, Timothy West and his brother, Todd West, owned and 

used the large commercial building at 2341 Scranton Road, Cleveland, Ohio to grow 

hundreds of marijuana plants. On November 5, 2010, the Cleveland police raided the 

operation and arrested the brothers. 

{¶3} The grand jury then indicted the brothers for (1) the illegal manufacture of 

drugs or cultivation of marijuana, (2) drug trafficking, (3) drug possession, and (4) 
possession of criminal tools. Each indictment included multiple forfeiture 

specifications, including the forfeiture “of the Premises/Real Estate located at 2341 

Scranton Ave., Cleveland, Ohio , Permanent Parcel #004-10-005.” (The indictments, 

Ex. A to complaint.) A jury convicted the brothers on all counts and specifications, and 

on September 26, 2011, the respondent trial judge sentenced the brothers to a total of 16 

years in prison. The judge also ordered the 2341 Scranton Road property forfeited to the 

state. 

{¶4} A review of the record in the underlying case indicates that the brothers had 

“sold” the Scranton Road property to Nicholas Kulon in May 2011. It is apparent that 

Kulon realized that this sale may be problematic and commenced a civil lawsuit, Kulon v. 

Timothy West, Todd West, State of Ohio & Cuyahoga Cty., Cuyahoga C.P. No. 

CV-761802, on August 8, 2011, to resolve the matter. Thus, the state of Ohio in the 

underlying case on October 3, 2011, filed a brief in support of forfeiture that asked the 

trial judge to declare that the May 2011 contract was null and void and to vest title 

unencumbered with the city of Cleveland. On October 17, 2011, Kulon filed a petition, 

pursuant to R.C. 2981.04, criminal forfeiture proceedings, to determine the validity of his 

interest in the Scranton Road property. In between these filings, the brothers appealed 

their convictions and sentences; State v. Timothy West, 8th Dist. No. 97391 and State v. 

Todd West, 8th Dist. No. 97398. On December 28, 2011, Donnalee West, the brothers’ 

mother, filed a petition to determine her interest in the property. 
{¶5} Timothy West alleges that on November 23, 2011, and December 28, 2011, 

the trial judge held hearings on the R.C. 2981.04 petitions. On January 13, 2012, the 

judge issued a journal entry, pursuant to State v. Baker, 119 Ohio St.3d 197, 

2008-Ohio-3330, 893 N.E.2d 163, that reiterated the convictions, sentences, and 

forfeitures of the brothers and resolved the R.C. 2981.04 petitions. The judge specified 

that 2341 Scranton Road, Cleveland, Ohio sufficiently described the forfeited parcels, 

004-10-005 and 004-10-006; that Donnalee West had no interest of record in the subject 

property and struck her petition as untimely; and that although the brothers’ attempted 

conveyance of the land violated R.C. 2981.07 and was void, Nicholas Kulon was a bona 

fide purchaser of the subject property. Thus, the judge ordered the transfer of the 

subject property to Kulon and ordered the proceeds of the sale forfeited to the City of 

Cleveland Law Enforcement Trust Fund and the Cuyahoga County Prosecutor’s Law 

Enforcement Trust Fund. The brothers timely appealed this decision of the trial court,

State v. Todd West, 8th Dist. No. 97899 and State v. Timothy West, 8th Dist. No. 97900. 

Timothy West also commenced this prohibition action. 

{¶6} 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, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). 

Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the 

cause that it is attempting to adjudicate or the court is about to exceed its jurisdiction. 
State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941), 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 Cty., 153 Ohio St. 64, 

65, 90 N.E.2d 598 (1950). Furthermore, it should be used with great caution and not 

issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common 

Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940). 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, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988); and State ex rel. Csank v. Jaffe, 107 

Ohio App.3d 387, 668 N.E.2d 996 (8th Dist.1995). 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 an appeal from the court’s holding 

that it has jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of Edn. v. Portage 

Cty. Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997). Moreover, the 

court has discretion in issuing the writ of prohibition. State ex rel. Gilligan v. Hoddinott, 

36 Ohio St.2d 127, 304 N.E.2d 382 (1973). 

{¶7} In addition, prohibition may issue to correct the results of prior 

jurisdictionally unauthorized actions, if the court was patently and unambiguously without 

jurisdiction. State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 
915 N.E.2d 633. However, prohibition will not lie, if the court had basic statutory 

jurisdiction. At the very least, the court would have sufficient jurisdiction to determine 

its own jurisdiction, and appeal would provide an adequate remedy. State ex rel. Pruitt 

v. Donnelly, 129 Ohio St.3d 498, 2011-Ohio-4203, 954 N.E.2d 117. 

{¶8} Timothy West argues first that the respondent judge was patently and 

unambiguously without jurisdiction to conduct the forfeiture hearings and issue the 

January 13, 2012 order because of the transfer of jurisdiction principle. In Howard v. 

Catholic Social Serv. of Cuyahoga Cty., 70 Ohio St.3d 141, 146, 1994-Ohio-219, 637 

N.E.2d 840, the Supreme Court of Ohio enunciated the rule as follows: “When a case 

has been appealed, the trial court retains all jurisdiction not inconsistent with the 

reviewing court’s jurisdiction to reverse, modify, or affirm the judgment.” As a 

corollary, the trial court retains jurisdiction over collateral matters, such as contempt, 

enforcement of its judgment, appointment of a receiver, and injunction. Fifth Third 

Mtge. Co. v. Rankin, 4th Dist. No. 11CA18, 2012-Ohio-2804 (the trial court retained 

jurisdiction to confirm the sheriff’s sale pending appeal of judgment of foreclosure). 

Timothy West asserts that the trial court must have lost all jurisdiction after he appealed 

his convictions in October 2011. As a second argument, he asserts that the trial judge 

did not have the jurisdiction to order the forfeiture of Permanent Parcel No. 004-10-006, 

because it was not explicitly stated in the indictment. Although Timothy West does not 

cite authority for this proposition, R.C. 2981.04(A) provides that property may not be 

forfeited unless the indictment includes a specification that includes a description of the 
property. He implicitly argues that the failure to include all of the permanent parcel 

numbers in the specification creates a jurisdictional defect in the indictment. 

{¶9} However, these arguments are not well taken. R.C. 2981.04 provided the 

respondent judge with statutory jurisdiction to proceed. Subsection (D) of the statute 

requires the prosecutor to attempt to identify and notify any person who may have an 

interest in the property. This process requires the prosecutor to give notice by 

publication of the forfeiture once each week for two consecutive weeks. Subsection (E) 

allows any person, other than the offender, who has an interest in the property, to file a 

petition or affidavit asserting that person’s interest in the property. Subsection(E)(1)(a) 

requires the petition to be filed within 30 days after the final publication or receipt of 

notice of the forfeiture. Subsection (E)(3) directs the trial court to hold a hearing on the 

validity of the interest within 30 days of the filing of the petition. The statute envisions 

resolving these matters within the time of a pending appeal. Therefore, the judge had 

statutory jurisdiction to proceed. At the very least, R.C. 2981.04 clothed the respondent 

judge with sufficient jurisdiction to determine her own jurisdiction. 

{¶10} Moreover, as the Supreme Court of Ohio in Pruitt, supra, ruled, errors in 

sentencing, such as the propriety of a forfeiture, are to be addressed on appeal. Thus, an 

adequate remedy at law also bars this prohibition action. 

{¶11} In his appeals, Timothy West argued that the trial court erred in ordering 

the forfeiture of both parcels of land because the indictment only identified one parcel. 

This court rejected that argument by noting that the two parcels were merged for tax 
purposes and that the 2341 Scranton Road address described both parcels. This court 

concluded that the trial court properly forfeited the entire property. State v. Timothy 

West, 8th Dist. Nos. 97291 and 97900, 2013-Ohio-96. 

{¶12} The principles of issue preclusion also bar this action. Issue preclusion 

prevents relitigation of any fact or point that was determined by a court of competent 

jurisdiction in a previous action between the same parties or their privies. O’Nesti v. 

DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 7. As 

shown above, Timothy West has already litigated Count 2 of this prohibition action and 

lost. In his appeal, State v. Todd West, 8th Dist. Nos. 97398 and 97899, Todd West filed 

a motion for reconsideration on January 4, 2013, (motion no. 461387), which raised the 

same transfer of jurisdiction argument as in his brother’s writ. In fact, Todd West relied 

upon the same authority and at times used identical language in his argument as in his 

brother’s writ action. On January 18, 2013, this court denied the motion for 

reconsideration. Thus, as a brother and partner in the same scheme, Timothy West is in 

privity with Todd West, and the litigation of the transfer of jurisdiction issue resolves the 

point for Timothy West as well. 

{¶13} Accordingly, this court grants the respondent judge’s motions to dismiss. 

Relator to pay costs. This court directs the clerk of court to serve all parties notice of 

this judgment and its date of entry upon the journal as required by Civ.R. 58(B). 

{¶14} Writ dismissed. 
 

 

MELODY J. STEWART, ADMINISTRATIVE JUDGE 

MARY J. BOYLE, J., and 

EILEEN A. GALLAGHER, J., CONCUR