State ex rel. Toledo Hosp. v. Olender

[Cite as State ex rel. Toledo Hosp. v. Olender, 2026-Ohio-1631.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


 State ex rel. The Toledo Hospital                    Court of Appeals No.L-25-00294

          Relator

 v.

 The Honorable Lori Olender                           DECISION AND JUDGMENT

          Respondent                                  Decided: May 5, 2026



                                                   *****

        SULEK, J.

        {¶ 1} This matter is before the court on the motions of relator Hon. Lori Olender

and intervenor The Estate of Yvonne Diller (“Estate”) to dismiss respondent The Toledo

Hospital’s complaint for a writ of prohibition. For the reasons that follow, Judge

Olender’s motion to dismiss is granted, the Estate’s motion to dismiss is denied as moot,

and the complaint for a writ of prohibition is dismissed.
                      I. Factual Background and Procedural History

         {¶ 2} Toledo Hospital is a defendant in a civil case before Judge Olender, which

was brought by the Estate for allegedly negligent medical treatment that caused Diller’s

death.

         {¶ 3} On May 11, 2023, Diller presented to Toledo Hospital with complaints of

toe pain. She was treated by Dr. Jacob Goliver, who consulted with Sohaib Lateef, M.D.,

an employee of the University of Toledo Medical Center. Diller later suffered a severe

stroke, which resulted in her death on July 11, 2023.

         {¶ 4} The Estate filed its wrongful death action in case No. CI-2024-01572 against

Toledo Hospital. It alleged that Diller’s death was proximately caused by Dr. Lateef’s

medical negligence and that Toledo Hospital was vicariously liable for Dr. Lateef’s

actions on the basis of agency-by-estoppel.

         {¶ 5} On July 30, 2024, the trial court granted a stay of the wrongful death action

pending a determination by the court of claims whether Lateef was entitled to immunity

as a state employee under R.C. 9.86. On October 18, 2024, the court of claims

determined that he was immune. It held that “Ohio courts of common pleas do not have

jurisdiction over civil actions against Dr. Lateef arising out of his care and treatment of

Yvonne Diller on May 11, 2023, at ProMedica Health System in Toledo, Ohio.” Diller v.

University of Toledo College of Medicine and Life Sciences, Ct. of Cl. No. 2024-

00355JD.




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       {¶ 6} Following the determination of Dr. Lateef’s immunity, the Estate voluntarily

dismissed its complaint. On March 10, 2025, it refiled its complaint in case No. CI-2025-

00836. The case was assigned to Judge Olender.

       {¶ 7} Toledo Hospital moved to dismiss the complaint, arguing that the trial court

lacked subject-matter jurisdiction. It alleged that the Estate could not pursue a vicarious

liability claim against it for the negligence of Dr. Lateef because he was solely employed

by the State and any claims must, therefore, be made through the court of claims. The

trial court denied Toledo Hospital’s motion to dismiss on October 24, 2025.

       {¶ 8} On December 5, 2025, Toledo Hospital filed in this court the current

complaint for a writ of prohibition. The complaint seeks an order of this court

prohibiting Judge Olender from exercising judicial power over the underlying claim in

case No. CI-2025-00836. Subsequently, the Estate moved to intervene. On February 25,

2026, this court granted the Estate’s motion to intervene and issued an alternative writ

ordering Judge Olender either to do the act requested by Toledo Hospital or show cause

why she is not required to do so by filing an answer or a motion to dismiss.

       {¶ 9} Judge Olender filed her motion to dismiss on March 11, 2026. In it, she

argues, inter alia, that R.C. 2305.01 grants the court of common pleas general subject-

matter jurisdiction over civil actions. She notes that R.C. 2743.02 does provide the court

of claims with exclusive subject-matter jurisdiction in certain circumstances, but “only in

civil actions brought against employees and officers of the State of Ohio--not to a private

entity such as [Toledo Hospital].” She maintains, therefore, that Toledo Hospital cannot



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demonstrate a “patent and unambiguous” lack of subject-matter jurisdiction. The Estate,

as intervenor, makes similar arguments in its own motion to dismiss.

       {¶ 10} In response, Toledo Hospital argues that under R.C. 2743.02 the court of

claims “has exclusive jurisdiction over all claims arising out of Dr. Lateef’s alleged

negligence.” It asserts that because the Estate’s claim against it arises solely out of the

alleged negligence of Dr. Lateef, the claim “is purely derivative and cannot be

maintained independently of a claim against Dr. Lateef, a state-employed physician that

the Court of Claims has held is immune from suit.” It cites Comer v. Risko, 2005-Ohio-

4559, Fisher v. Van Loveren, 2008-Ohio-4115 (1st Dist.), and Schoewe v. Kosinski,

Lucas C.P. No. CI 2010-06207, 2012 WL 4843144 (Feb. 8, 2012), as examples where

courts have held that private hospitals could not be held liable for the alleged negligence

of state-employed physicians under the theory of agency-by-estoppel.

       {¶ 11} Briefing having been completed by the parties, the matter is now

decisional.

                                        II. Analysis

       {¶ 12} “A Civ.R. 12(B)(6) motion to dismiss is procedural and tests the

sufficiency of the complaint.” Fisher v. Smith & Lehrer Co., L.P.A., 2024-Ohio-1177, ¶

11 (6th Dist.), quoting NZR Retail of Toledo, Inc. v. Beck Suppliers, Inc., 2016-Ohio-

3205, ¶ 12 (6th Dist.). “To dismiss a complaint under Civ.R. 12(B)(6), ‘it must appear

beyond doubt that the plaintiff can prove no set of facts in support of the claim that would

entitle the plaintiff to the relief sought.’” Id., quoting Ohio Bur. of Workers’ Comp. v.

McKinley, 2011-Ohio-4432, ¶ 12. “In considering the motion, the court must accept as

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true all factual allegations in the complaint and construe any reasonable inferences in

favor of the non-moving party.” Id., citing Alford v. Collins-McGregor Operating Co.,

2018-Ohio-8, ¶ 10.

       {¶ 13} “A writ of prohibition is an extraordinary writ that a court does not grant

routinely or easily.” State ex rel. Allenbaugh v. Sezon, 2023-Ohio-1754, ¶ 11. To be

entitled to a writ of prohibition, Toledo Hospital must demonstrate that: (1) Judge

Olender is about to exercise or has exercised 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 court of the law. Id.

       {¶ 14} Here, Toledo Hospital cannot satisfy all the elements for a writ of

prohibition because it has an adequate remedy at law by way of an appeal following final

judgment in the common pleas court. The sole issue then is whether the no-adequate-

remedy requirement is dispensed with because the common pleas court “patently and

unambiguously lacks subject-matter jurisdiction over a cause of action.” Schlegel v.

Sweeney, 2022-Ohio-3841, ¶ 6.

       {¶ 15} “‘[W]hen a court has the constitutional or statutory power to adjudicate a

particular class or type of case, that court has subject-matter jurisdiction.’” Id. at ¶ 12,

quoting Ostanek v. Ostanek, 2021-Ohio-2319, ¶ 36. “Common pleas courts ‘have such

original jurisdiction over all justiciable matters… as may be provided by law.” Id.,

quoting Ohio Constitution, Article IV, Section 4(B). “Provided by law” is understood “to

mean that the general subject matter jurisdiction of the common pleas court ‘is defined



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entirely by statute.’” State ex rel. Gray v. Kimbler, 2022-Ohio-3937, ¶ 13, quoting State

v. Wilson, 73 Ohio St.3d 40, 42 (1995).

       {¶ 16} R.C. 2305.01 broadly grants common pleas courts general subject-matter

jurisdiction over “all civil cases in which the sum or matter in dispute exceeds the

exclusive original jurisdiction of county courts.” Thus, “when a court of common pleas

patently and unambiguously lacks jurisdiction to hear a case, ‘it is almost always because

a statute explicitly removed that jurisdiction.’” Kimbler at ¶ 15, quoting Ohio High

School Athletic Assn. v. Ruehlman, 2019-Ohio-2845, ¶ 9. “A statutory grant of exclusive

jurisdiction over a specific type of case to another court, office, or agency divests the

common pleas court of jurisdiction over that type of case.” Id.

       {¶ 17} The statute at issue in this case, R.C. 2743.02, divests the common pleas

court of jurisdiction over claims against the State; it does not divest the common pleas

court of jurisdiction over claims against Toledo Hospital. See R.C. 2743.02(A)(1) (“The

state hereby waives its immunity from liability . . . and consents to be sued, and have its

liability determined, in the court of claims created in this chapter in accordance with the

same rules of law applicable to suits between private parties, except that the

determination of liability is subject to the limitations set forth in this chapter . . ..”).

       {¶ 18} Notwithstanding this, Toledo Hospital points to R.C. 2743.02(A)(2), but

that section provides it with no relief. R.C. 2743.02(A)(2) states,

              If a claimant proves in the court of claims that an officer or
       employee, as defined in section 109.36 of the Revised Code, would have
       personal liability for the officer’s or employee’s acts or omissions but for
       the fact that the officer or employee has personal immunity under section
       9.86 of the Revised Code, the state shall be held liable in the court of

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        claims in any action that is timely filed pursuant to section 2743.16 of the
        Revised Code and that is based upon the acts or omissions.

R.C. 2743.02(A)(2) thus establishes that the State is liable for the acts or omissions of its

officers and employees, and those cases must be brought in the court of claims. Again,

though, the exclusive jurisdiction of the court of claims only applies to the State. It does

not apply to private entities such as Toledo Hospital.

        {¶ 19} Toledo Hospital also cites R.C. 2743.02(F), which provides, in relevant

part,

               A civil action against an officer or employee, as defined in section
        109.36 of the Revised Code, that alleges that the officer’s or employee’s
        conduct was manifestly outside the scope of the officer’s or employee’s
        employment or official responsibilities, or that the officer or employee
        acted with malicious purpose, in bad faith, or in a wanton or reckless
        manner shall first be filed against the state in the court of claims that has
        exclusive, original jurisdiction to determine, initially, whether the officer or
        employee is entitled to personal immunity under section 9.86 of the
        Revised Code and whether the courts of common pleas have jurisdiction
        over the civil action.

This section applies to civil actions against an “officer or employee.” Toledo Hospital is

neither. R.C. 2743.02(F), therefore, does not divest the common pleas court of

jurisdiction over the claim against Toledo Hospital.

        {¶ 20} In opposing dismissal of its petition for a writ of prohibition, Toledo

Hospital argues that it cannot be held liable because Dr. Lateef was a state employee and

he had no employment relationship with the hospital. This, however, is a question of

liability that is separate and distinct from the threshold question of whether the common

pleas court has subject-matter jurisdiction over the claim. Because nothing in R.C.

2743.02 divests the common pleas court of the jurisdiction provided in R.C. 2305.01, it

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does. The merits of the Estate’s underlying agency-by-estoppel claim and the

applicability of, inter alia, Comer v. Risko, 2005-Ohio-4559, Clawson v. Heights

Chiropractic Physicians, LLC, 2022-Ohio-4154, Fisher v. Van Loveren, 2008-Ohio-4115

(1st Dist.), and Schoewe v. Kosinski, Lucas C.P. No. CI 2010-06207, 2012 WL 4843144

(Feb. 8, 2012), should be addressed in the first instance in the common pleas court.

       {¶ 21} Accordingly, R.C. 2743.02 does not divest the common pleas court of

jurisdiction over the claim against Toledo Hospital. Consequently, because Judge

Olender does not patently and unambiguously lack jurisdiction, and because Toledo

Hospital has an adequate remedy by way of appeal, Toledo Hospital cannot establish

entitlement to a writ of prohibition, and its petition must be dismissed.

                                      III. Conclusion

       {¶ 22} For the foregoing reasons, Judge Olender’s motion to dismiss is found

well-taken and is hereby granted. Toledo Hospital’s complaint for a writ of prohibition is

dismissed with prejudice. The Estate’s motion to dismiss is denied as moot. Costs of this

action are assessed to Toledo Hospital.

       {¶ 23} The clerk of court is directed to serve upon all parties, within three days, a

copy of this decision in a manner prescribed by Civ.R. 5(B).

       It is so ordered.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                           State ex rel. The Toledo Hospital v. The Honorable Lori Olender
                                                                     Case No.: L-25-00294




 Thomas J. Osowik, P.J.
                                                               JUDGE



 Gene A. Zmuda, J.
                                                               JUDGE



 Charles E. Sulek, J.
 CONCUR.                                                       JUDGE



          This decision is subject to further editing by the Supreme Court of
     Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
          version are advised to visit the Ohio Supreme Court’s web site at:
                   http://www.supremecourt.ohio.gov/ROD/docs/.




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