IN THE SUPREME COURT OF OHIO

STATE ex rel.THE EAST OHIO GAS COMPANY d/b/aDOMINION EAST OHIO,

CASE NO. 07-0050

Relator,

vs.

HONORABLE JOHN J. RUSSO, in hisofficial capacity only, et al.,

Respondents.

F^u `L -I 2QTC`n ,Y iV1^tdGFL, CI^RK

NIAR C,ItIFf r,)V;d"10C^lP^l^r^h^

RELATOR'S MOTION FOR EXPEDITEDCONSIDERATION OF RELATOR'SMOTION TO STAY LAKE COUNTYCOMMON PLEAS COURT CASE NO.06CV002747 PENDING FINALADJUDICATION OF RELATOR'S WRIT OFMANDAMUS

Jerome W. Cook (0036835)Attomey for RelatorMcDonald Hopkins Co., LPA600 Superior Ave., E., Suite 2100Cleveland, OH 44114Telephone: (216) 348-5400Facsimile: (216) 348-5474E-Mail: jcook@mcdonaldhopkins.com

Now comes the Relator, The East Ohio Gas Company (d/b/a Dominion East Ohio), by

and through undersigned counsel, pursuant to Rule 14, Section 4(A) of the Rules of Practice of

the Supreme Court of Ohio, and moves this Honorable Court for Expedited Consideration Of

Relator's Motion To Stay Lake County Common Pleas Court Case No. 06cv002747 Pending

Final Adjudication Of Relator's Writ Of Mandamus, filed in this Court on January 23, 2007

(attached hereto as Exh. A). Expedited consideration of Relator's Motion To Stay is warranted

because the Lake County Common Pleas Court has fast-tracked the case by setting a dispositive

(1115869:)

motion deadline of March 1, 2007 and scheduling a final pretrial for March 15, 2007 and a trial

for April 16, 2007. This accelerated schedule will require Relator to waste resources in an

improper forum (Lake County) and will result in the Lake County Court rendering dispositive

decisions before this Court is able to fully consider the merits of Relator's Mandamus

Complaint. Moreover, expedited consideration of Relator's Motion is warranted because any

further progress of Lake County Court of Common Pleas Case No. 06CV002747 will further

undermine the Jurisdictional Priority Rule and legitimize an otherwise erroneous venue transfer.

For these reasons and those more fully set forth in Relator's Brief in Support of its Motion to

Stay (see, Exh. A), Relator respectfully submits that its Motion for Expedited Consideration of

Relator's Motion to Stay is well-taken and should be granted.

Respelefully submitted,

EL L. SNYDER r0040990)E W. COOK (0036835)M. FITZGERALD (0080690)

'cDoriald Hopkins Co., LPA600 Superior Ave., E., Suite 2100Cleveland, Ohio 44114(216) 348-5400Fax: (216) 348-5474E-Mail: msn der ,mcdonaldhopkins.com

jcook ,mcdonaldhopkins.comrfitz eg raldnmcdonaldhonkins.com

Attomeys for RelatorThe East Ohio Gas Companyd/b/a Dominion East Ohio

. 2{11i5869:}

CERTIFICATE OF SERVICE

A copy of the foregoing Realtor East Ohio Gas Company's. Motion For Expedited

Consideration Of Relator's Motion To Stay Lake County Common Pleas Court Case No.

06cv002747 Pending Final Adjudication Of Relator's Writ Of Mandamus was served via

Regular U.S. Mail this 26"' day of February, 2007, upon the following:

Charles E. Hannan Counsel for RespondentAssistant Prosecuting Attorney Judge John RussoCuyahoga County Prosecutor's Office1200 Ontario Street, 9lh FloorCleveland, OH 44113

Mark R. Kobema, Esq.Mark E. Owens, Esq.3401 Enterprise ParkwaySuite 400Cleveland, OH 44122

Counsel for RespondentsTierra Solutions, Inc. andLakeview Bluffs, LLC

EROMne of thhe Eas

a

W. -COOK (0036835)Attorneys for Relator

/Ohio Gas Companyminion East Ohio

3(1115869:)

.IN TI-IF, SUPRF,ME COURT OF OHIO

STATE ex rel.TI-M EAST OHIO CTAS COMPANY d/b/aDOMINION EAST OI-IIO,

CASE NO. 07-0050

Relator,

vs.

HONORABLE JOHN J. RUSSO, in hisofficlal capacity only, ed al.,

Respondents.

RELATOR'S MOTION TO STAY LAKECOUNTY COMMON PLEAS COURT CASENO. 06CV002747 PENDING FINALADJUDICATION OF RELATOR'S WRI'1' OFMANDAMUS

Jerome W. Cook (0036835)Attorney for RelatorMcDonald Hopkins Co., LPA600 Superior Ave., E., Suite 2100Cleveland, OH 44114Telephone: (216) 348-5400Facsimile: (216) 348-5474E-Mail: jcook@mcdonaldhopkins.com

Now comes the Relator, The East Oliio Gas Company (d/b/a Dominion East Ohio), by

and through undersigned counsel, pursuant to this Court's plenary power to correct the excesses

of lower tribunals by preserving the status quo, and moves this Honorable Court to stay the

proceedings in Lake County Common Pleas Court Case No. 06CV002747, styled Tierra

Solutions et al. v. The East Ohio Gas Company, pending final a4judication of Relator's Original

Action in Mandamus currently before this Court.

JAN gj ?067lMARCIA J MtrNGG CL^RK

SUp^^M^ COUR1^p^®

EXHI oT A

The grounds for this motion are more fully set forth in the Brief in Support, which is

attached hereto and incorporat'ed herein by refere

erome W. Cook (0036835)ttorn for RelaforcD nald Hopkins C:o., LPA

6 Superior Ave., E., Suite 2100

Cleveland, OH 44114Telephone: (216) 348-5400Facsimile: (216) 348-5474F-Mail: jcook@niedortaldliopkins.com

2(1083722:)

BRIEF TN STJPPORT

I. INTRODUCTION

On January 11, 2007, Relator filed its Original Action in Mandamus to correct the

results of Respondent Judge Russo's November 1, 2006 venue transfer order transfeiTing venue

from a proper venue (Cuyahoga County) to Lake County wliere: 1) Judge Russo's order is

facially invalid because it transfers a matter from a proper venue with no legal support; 2) it

undermines the Jurisdictional Priority Rule where Plaintiffs could not have otherwise achieved a

dismissal and refiling of their Complaint in Lake County (in light of a Compulsory Counterclaim

that was pending in Cuyahoga County that would have sutvived the dismissal) because the

Jurisdictional Priority Rule would have granted exclusive jurisdiction to Cuyahoga County over

the entire matter and deprived Lake County of subject matter jurisdiction; and 3) Relator has no

adequate remedy in the ordinary course of the law.

As detailed in the Coxnplaint for Mandanlus, Relator has established that Cuyahoga

County (the transferor court) was a proper venue, no issue has been raised below regarding the

Plaintiffs' ability to obtain a fair and impartial trial in Cuyahoga County, and Respondent Judge

Russo iirrplicitly relied upon some form of forum non conveniens principle to support an

intrastate transfer of venue. When a similar set of facts was previously presented to this Court, it

was held that the Relator had clearly established a legal right to vacation of the transfer order, a

clear right to an order compelling the transferor court to accept venue and to adjudicata the

merits, as well as a clear legal duty on the part of the transferor court to perform the requested

acts. State ex rel. Smith v. Cuyahoga County Court ofCommon Pleas et al., 106 Ohio St.3d 151,

2005 Ohio 4103, 832 N.E. 2d 1206, at ¶ 13.

3(1U83722;)

In support of Relator's argument that it has no adequate remedy in the ordinary course of

the law, Relator urged this Court to decm the tratvsfer order a nullity and to apply the

Jurisdictional Priority Rule as if Plaintiffs had attempted to vohuitarily dismiss their Complaint

in Cuyahoga County and refile it in Lake County (while Relator's Compulsory Counterclaim

remained pending in Cuyahoga County), Relator clearly established that this would lead to the

conclusion that the Jurisdictional Priority Rule would have deprived the Lake County Comrnon

Pleas Court of subject matter jurisdiction. See, Lagoons Point Land Co., v. Grendell, Lake App.

No. 2001-L-043, 2002 Ohio 3372, at }j 23-31. However, the Lake County Common Pleas Court

has accepted the transfer despite Relator's opposition and has fast-tracked the case and scheduled

a final pretrial for March 15, 2007 and a trial for April 16, 2007.

Relator's Complaint for Mandamus supports the proposition that an appeal from any

proclamation of the Lake County Court of Common Pleas is not an adequate reinedy in the

ordinary course of the law. If a court acts without jurisdiction, then aiiy proclamation by that

court is void. State ex. rel. Ohio Democratic Parly v. Blackwell, 1 11 Ohio St. 3d 246, 248, 2006

Ohio 5202, 855 N.R. 2d 1188, at ¶ 8. It is liardly an adequatc remedy in the ordinary course of

the law to appeal from a void judgment. "Where the trial court cnters an order without

jurisdiction, its order is void and a nullity. No appeal can be taken from void judgment, as a void

judgment is necessarily not a final appealable order." Pauer v. Langaa, Cuyahoga App. No.

83232, 2004 Ohio 2019, at 112.

As such, Relator moves this Court to stay any further progress of Lake County Common

Pleas Couit Case No. 06CV002747. Relator respectfully submits that to do otherwise would be

to allow Respondents to avoid the Jurisdictional Priority Rule and to undermine thc integrity of

thcjudicial process.

4(1083722:)

II. LAW AND ARGUMENT

']'I is Court has declared it to be "well settled" that a court's inherent authority.includes

the power to issue stays. C'ity ofNorwood v Iforney, 110 Ohio St.3d 353, 2006 Ohio 3799, 853

N.E.2d 1115, at ¶118. As a necessary function of their existence, courts retain the inherent

power to control thei - efficient and prudent operation. State ex rel. Richard v. Cuyahoga County

Cornrnissroners (1995), 100 Ohio App.3d 592, 597, 654 N.E.2d 443. Ohio courts have the power

to stay proceedings pending resolution of potentially dispositive developments. Kovar v.

Latosky, Lake App. No. 2002-I, 037, 2003 Ohio 1749 at ¶15. Among the factors that warrant a

stay are the efficiency and judicial economy that results from staying matters pending resolution

of potentially dispositive developments. Id. at ¶16. Ohio courts also possess inherent power to

issue a stay in the interest of the orderly and efficient administration of justice: State v.

I-lochhausder, 76 Ohio St.3d 455, 464, 1996 Ohio 374, 668 N.E. 2d 457.

In the context of a court that has jurisdiction to issue the writ of mandamus, as well as

o(her extraordinary Writs, that satne cotut has pienary power, not only to' prevent the excesses of

lower tribunals, but to correct the results thereof and to restore the parties to the same position

they occupied before the excesses occurred. See, State; ex rel Adams v. Gusweiler (1972), 30

Ohio St. 2d 326, 330; 285 N.E. 2d 22.

Any further progress of Lake County Court of Common Pleas Case No. 06CV002747

will further undermine the Jurisdictional Priority Rule and legitimize an otherwise erroneous

venue transfer. The integrity of the judicial process can be preserved by ordering a stay of any

further proceedings in Lake County Court of Common Pleas Case No. 06CV002747.

{1083722:)

Ili CONCLUSION

Based upon the foregoing, Retator T'he East Ohio Gas Conipany (d/b/a Dominion East

Ohio) respectfi lly submits that its Motion To Stay Lake County Conunon Pleas Court Case No.

06cv002747 Pending Final Adjudication Of Relator's Writ Of Mandamus is well-taken and

should be gxanted.

W. Cbn,.6835)ttoV ey for Relator

onald Hopkins Co., LPA600 Superior Ave., E., Suite 2100Cleveland, OH 44114Telephone: (216) 348-5400Facsimile: (216) 348-5474E-Mail: icookmcdonaldhopkins com

Jeror

(1083722:)

CIJRTIP'iCATE Oi+ SErZV1C1+,

A copy ofI:he foregoing Realtor's .Motion to Stay Lake County Common Pleas Court

Case No. 06CV002747 Pending Final Adjudication of Relator's Writ of Mandamus was sent by

regular U.S. mail this 22id day of Januaiy, 2007 to the following:

William D. Mason, Esq.Cuyahoga County Prosecutor's Office1200 Ontario Street, 9`h FloorCleveland, OH 44113

Tierra Solutions, Inc.2 Tower Center Blvd., l Oth FloorEast Brunswick, New Jersey 08816

Tierra Solutions, Inc..c/o Csc-Lawyers Incorporating Service, Statutory Agent50 W. Broad St., Suite 1800Columbus, Ohio 43215

Lakeview Bluffs, LLCc/o Todd S. Davis, Statutory AgentOne Corporate Exchange25825 Science Park Drive, Suite 265Beachwood, Ohio 44122

or RelatorW. COOK (0036835)

7{ 1083722: }

Page 1

LEXSEE 2002 OHIO 3372

LAGOONS POTNT LAND CO., Plaintiff-Appellant,- vs - TIMOTIIY J.GRF,NDELL, Defendant-Appellce.

ACCELF,RATED CASE NO. 2001-L-043

COURT OF APPEALS Oh OHIO, ELE VEN'rH APPELLATE DISTRICT, LAKECOUN'f Y

2002 Ohio 3372; 2002 Ohio App. .GEJClS 3368

June 28, 2002, Decided

PRIOR HIS'I'ORY: [*g1] CHARACTER OFPROCBEDINGS: Civil Appeal from the Common PleasCouit_ Case No. 00 CV 001584.

DISPOSITION: Trial court's judgment was affrrrned.

COUNSEL: ATTY. LEO R. COLLINS, Mentor, OH(For Plaintiff-Appellant).

[*P3] On October 4, 2000, appellant filed acomplaint in Lake County Coort of Common Pleas

against appellee for malpractice; alleging that appellee

failed lo return fees that were overpaid to [**2] him. On

October 10, 2000, appellee filed a motion to desmiss Ihe

Lake County case for lack of subject matter jurisdiction.

On Octobei 19, 2000, appcllant ftled an answer to

appellee's motion to dismiss arguing that Lagoons Point

was not a party in the Cuyahoga County case and ttrat the

cases involveddifferent issues.ATTY. TIMOTHY J. GRENDELL, Pro se, BroadviewHeiglits, OII (Defendant-Appellee).

dUDGES: IION. WILLIAM M. O'NEILL, P.J., HON.JUDIT'H A. CHRISTLEY, J., HON. ROBERT A.NADER, J. JUDITH A. CHRISTLEY, J., ROBERT A.NADER, J., coucur.

OPINION BY: WILLIAM M. O'NEILL

OPINION: WILLIAM M. O'NEILL, P.J.

[*PI] Appellant, Lagoons Point Land Co., appeals amotion to dismiss granted by the Lake County Court ofCommon Pleas. The following procedural facts arerelevant to this appeal.

[*P21 On August 2, 2000, Attomey Timothy I.Grendell, appellee, filed a complaint against Albert Nozikin the Cuyahoga County Court of Common Pleas. Mr.Nozik is an attorney and the controlling shareholder ofLagoons Point Land Company. T7te complaint sought adeclaratory judgment 6nding that Albert Nozik owedappellee outstanding atforney fees and costs.

[*P4] On October 24, 2000, appellee moved toamend his complaint in the. Cuyalroga C:onnty case to

include appellant as a named defendant. The motion was

granted and the amended complaint was filed on thatsaine date.

[*P5] Ou Dec:embcr 11, 2000, the Lake County

Court granted appellee's inotion and dismissed the case,

finding that both cases involved the same parties and the

same issues and that both courts had concunentjurisdiction.

[*P61 Appellant assetis four assignments of error.Because all of the assignments of etror are in relation tothe trial court's ruling on tlre motion to dismiss, we willprovide one analysis on the conduct of the trial courtwhich will properly include each assignment of error.

[*P7] Appellant's first assignment of error is asfollows:

[*P8] "The trial court erred in making certainconclusions, determirrations, and [*+3] Gndings withoutconducting auy hearings or taking any evidence."

2002 Ohio 3372, *P8; 2002 Ohio App. LEXIS 3368, **3

[*119] Appellant's second assignment of ermr is:

[*P10] '"fhe trial court erred in dismissingplaintiff's complaint when the issue was 'venue."'

[*PI1] Appellant'sthirdassignmentofcrroris:

[*P12] "The trial coutt erred by incorporating into

its opinion the unsubstantiated allegations contained itt

the defentlant's two'suppleniental motions' to dismiss."'

[*P13] Appellant's fourth assignrnent of error is:

[*P141 "The uial court ened in concluding that'because of the actions sought by plaintiff in this case

involved the satne issue and substantially the same partiesas the action brought in Cuyahoga County, the

jnrisdictional propriety [sic] rule applies and this court is

precluded from exercisingjurisdiction over the action."'

[*P15] Appellant's first and third assignments of

error contend that the trial courl erred in granting

appellee's motion to disntiss without first holding an

evidentiary hearing and by going outside of the pleadings

to rnake its determination.

['P16] When ruling on a Civ.R. 12(B)(1) tnotion todismiss for lack of subject rnatterjurisdiction, the [**4]court must drtennine whether the plaintiff has any

alleged cause of action whicti the court has autltotity to

decide. nl

n I State ex re7. Bush v. Spurlock (1989), 42Ohio St.3d 77, 80, 537 N.E.2d 641.

[*P]7] Regarding motions to dismiss for lack ofsubject matter jurisdiction under Civ.R. 12(B)(1), theSupreme Court of Ohio has noted:

[*Pl8] "'1'he trial court is not confuted to theallegations of the complaint when detemrining itssubject-matter jurisdiction pursuant to a Civ.R. 12(B)(1)motion to disntiss, and it may considei matarial pettittentto such inquiry without.convertiug the motion into onefor summary judgment." n2

n2 Southgate Dev. Corp, v. Columbia GasTranstnission Corp. (1976), 48 Ohio St.2d 211, 2Ohio Op. 3d 393, 358 N.E. 526, paragraph one

of the syllabus_

Page 2

[*P19] The court may dismiss a conrplaint [**5]

for lack of subject matter jurisdiction based upon (1) the

cotnplaint alone; (2) the complaint and undisputed facts

evidenced in the record; or (3) the complaint, undisputed

tacts evidenced 'ut the record, and the court's resolution of

disputed facts. n3 Therefore, no hearing is requireei for a

jurisdictiona] ntliug on the pleadings as the court tnay

look outside the pleadings to infomration contained in the

record that is pertinent to its mling on subject matterjurisdiction.

n."i Johnson v. Wilkinson (1992), 84 OhioApp.3d 509, 516, 617 N E.2d 707.

[*P20] In the case sub judice, the judgment eotryfrom the trial court notes that appellee's motion todismiss, followed by two suppletnental briefs andappellant'sbrief in opposition formed the basis of the trialcourt's findings.

[*P21] Therefore, appeitant's first assigrunent oferror has no merit as there is no requirement that the trialcourt hold an evidentiary hearing in order to nde on amotiou to distniss for lack of subject nratter [**6]jurisdiction. The court may look to the pleadings andundisputed facts from the record in making itsdetermination.

[*P22] Appctlant's first and tltird assignmcnts oferror are without merit.

[`P23] Appellant's second and foutih assignmentsof error assert that the trial court erred in grantingappellee's motion to dismiss because the issue is one ofvcnue and the jurisdictional priority rule does not apply.

['P24] The jurisdictionil priority rule stafos, "'asbetween (state) courts of concurrent jurisdiction, thetribunal whose power is first invoked by the institution ofproper proceedings acquires jurisdiction, to the exclusionof all other tribunals, to adjudicate upon the whole issueand to settle the rights of the parties."' n4

n4 State es rel. Dannaher v. Crawford 78Ohio St.3d 391, 393, 1997 041o 72, 678 N.E,2d549, quoting State ex reL Racing Guild of Ohio v.

Page 32002 Ohio 3372, *P24; 2002 Ohio App. LI3X1S 3369, **6

lvloagan (1985), 17 Ohio Sl.3d 54, S6, 17 0hio 13_4,5, 476 N.Ii.2d 1060.

[*P25] After independently reviewing [**7] therecord, we find that the trial court properly dismissed

appellant's complaint based on a lack of subject matter

jurisdiction.Citing thejurisdictionalpriority nile, the tria]

eourt correctly concluded that both the Lake County

Coutt of Corrunon Pleas and the Cuyahoga County Court

of Cotmnon Pleas had conconentjurisdiction and that the

Cuyahoga court acquiredjurisdiction first.

[*P26] Thejurisdictioual priority rule applies if Ihe

claims in both cases are sufficiently similar in that each

of the actions "compdses pat of the 'whole issue' that is

withirt the exclasive jurisdiction of the oourt wtwse

power is legally fitst invoked." n5 In detemtining

whether the two cases involve the same "whole issue" the

court must follow a two-patt analysis. First, there must be

cases pending in two different courts of conettrrent

jurisdiction iuvolving substantially thc same parties.

Second, the ruling of the court subseqttently acquiring

jurisdiction must affect or interfere with the resolution of

the issues before the court whcre the suit was originally

conmrenced.n6

n5 Slate ez rel. Racing Otdld of Ohio v

Morgan (1985), 17 Ohio St.3d 54, 56, 476 N. E..2d1060.

that tlte parties ace the same in both cases.

[*P28] 1'he ttial court concluded that a mling in theLake County case would interfere with the resolutiott ofthe case pending iaCuyahoga County. We agree with this

linding. 1"he Lake County case brought by appellantagainst Grendell alleges the same claim as alleged incoont seven of Nozik's counterclaim in the CuyahogaComrty ease. The same facts and circumstances apply inboth cases. Botlt claims relate to a dispute over tegal feesand expenses in thesame [**9] eminent domain action,Therefore, any tuling by tlte Lake County case wotddint,erfere greatly with the case pending in tl}e C.^ryahogaCounty court.

[*P29] Based on the foregoing analysis, the LakeCounly court properly detertnhted it did nofhave subjectmatter jurisdiction. Therefore, the trial court did not etr ingmnting appellee's motion to dismiss based on a lack ofsubject matter jurisdiction.

[*P30] Appellant's fourth assigmnent of error iswithout merit.

[*P31] Appetlant's second assignment of etror,

contending that the tme isstte is venue, does not apply. A

party can only assert iniproper venue where a coutt

already has subject matter jurisdiction. Stanttes or rules

rclating to venue are merely procedural and detenninc

wltere the suit should be heard. Because venue rules do

not relate to jurisdiction, they do not empower a court to

hear a case if subject matter jurisdiction does not alreadyreside in the court, n7

n6 Fronk v. Chung (Apr. 30, 1999), 1999Ohio App. LEXIS 2009, 1111 Dist. No. 98- L-079,1999 WL 266571, at * 3.

[•P27] The trial court applied this two-step analysisand correctly conciuded that the two suits involvesubstantially the same parties. The Cuyahoga Countycase was brought by Timothy Grendell and his partneragainst Albert Nozik. Gr'endell later amended hiscomplaint to include Lagoons Point Land Co. In the LakeCounty case, Lagoons Point Land Co. is the plaintiff andappellee Nozik is named in the complaint as the chiefslrareholder, president and director of plaintiff. It is clear

n7 Morrison v. Steiner (1972), 32 Ohio St.2d86,61 Ohio Op. 2d 335, 290 KE.2d 841.

[**10]

[*P32] Appellatrt's second assignment of error iswithout merit The judgment of the trial court is aff imed.

JUDTTH A. CHRISTLEY, J.,

ROBERTA. NADER, J.,

eoncur.

Page I

LEXSEE 2004 01110 2U 19

.fEAN PAUER, PlaintitT-Appellantvs. BETTY B. LANCAA, E'r AI,.,Defcndents-Appellees

No. 83232

COURT OF APPEALS OF OIiIO, EIGHTH APPELLATE DISTRICT,CUYAHOGA COUN'I'Y

2004 Ohio 2019; 2004 Ohio App. LEXLS 1747

April 22, 2004, Date of Announcement of Decision

SUBSEQUENT HISTORY: Appeal denied by Pauer v.Langaa, 103 Ohio St. 3d 1463, 2004 Ohio 5056, 815N.E.2d 678, 2004 Ohio LEXIS 2253 (2004)Related proceeding at Langaa v. Pauer, 2005 Ohio 6296,2005 Ohio App. LEXIS 5640 (Ohio Ct. App., GeaugaCounty, Nov. 25, 2005)

PRIOR HISTORY: [**1] Civil appeal from Comnton

Pleas Court. Case No. CV-437087. Laregaa v. Pauer,2002 Ohio 5603, 2002 Ohio App LF,XIS 5611 (Ohio Ct.

App., Geauga County, Oct. 18, 2002)

SEAN C. GALLAGHER, J

[*Pl] PLiintiff-appellant Jean Pauer ("Pauer')appeals from the decision of Cuyahoga County Court of

Common Pleas whicly denied her Civ.R. 60(B) motion tovacate a previously granted motion for summary

judgment in favor of the defendants-appellees Betty B.Langaa and Kurt Liedtke ni (collectively "Langaa") as

well as a motion for sanctions against Pauer. For tire

reasons adduced betow, we affrm in part and vacate in

purt.

DISPOSITIONa AFEIRMED IN PART, VACATED INPART.

COUNSEL: For plaintiff-appellant: J6AN PAUGR, Prose, C1ltesterLand, Oltio.

For defendants-appellees Betty B. Langaa, et al.:MICHAEL A. THOMAS, E SQ., Rocky River, Ohio.

For dbfendant-appellee KURT TIIOMAS LIEDTKE: Prose, Kurt Liedtke W illougltby, Ohio.

For defendant-appellee DANIEL T. PAUER: Pro se,DaniefT. Pauer, Chesterland, Ohio.

JIIDGES: SEAN C. GALLAGHER JUDGE, ANNE L.KILBANE, P.J., CONCURS. COLLEEN CONWAYCOONEY, J., CONCURS IN JUDGMGNT ONLY.

OPINION BY: SEAN C. GALLAGHER

nl Kttrt Liedtke, pro se, rlid not file anappellatc brief but did participate in oralargument.

[**7]

[*P2] Tlte following facts give rise to this appeal.Pauer tiled a complaintagainst Langaa on April26, 2001.On May 7, 2002, the trial court granted suuunaryjudgment against Pauer. In addition, on August 2, 2002,the trial court granted Langaa's motion for sanctionsagainst Pauer. Finally, on October 15, 2002, Langaa fileda voluntary dismissal of all claims against Pauer, makingboth court ordors final and appealable. On November 25,2002, Pauer frled a notice of appeal; however, onDecember 18; 2002, this court sua sponte dismissed theappeal as untimely pursuant to Civ32. 4(A) and App.R.4(A). Subsequently, on May 5, 2003, Pauer filed a Civ.R.60(8) motion to vacate, which was denied by the trial.court on July 2, 2003. Again, Pauer tiled a notica ofappeal to this court.

OPINION: JOURNAL ENTRY AND OPINION

2004 Ohio 2019, *P2; 2004 Ohio App_ LEXIS 1747, **2

[*P3] Pauer appeals Ihe decision of the trial court

and advances three assignments of error for our review,

wluch provide

[*P4] "'I'lte trial court erred and abused itsdiscretion in refusing to grant Plaintiffs motion for relieffrom judgment."

[*P5] "Civil Rule 60(B) sets fnrtlt the requirementsfor a trial court rcview aud ability for re-hearing. Theelements of 60(B) were met and the trial [**3] courterred and abused its discretion in refusing to hold ahearing upon the plaintifPs tnotion for rclicf_"

[*P6] "The trial court erred to the prejudice of theplaintiff-appellant in failing to enter a final appealableorder."

[*P7] First, the court must address whether it lrasjurisdiction to hear this appeal or whcther Paaer's right toappeal was waived by the late filing of her first notice ofappeal. We fitid that as to the merits of the case, Pauerhas lost her right to appeal; however, as to the order forsanctions, this court must vacate the order in part for lackof subject matterjurisdiction.

[*P8] It is well settled that a Civ. R. 60(B) motion to

vacate is not a substiurte for a timely appeal- Doe v

Trumbull Cly. Children Services Bd. (1986), 28 Ohio

St3d 128, 28 Ohio B. 225, 502 N.E.2d 605. The principle

of finality requires that, so long as the order is not void,

even an erroneous ruling must be given binding effect

arnung the parties once the time. for appeal has passed_

Dizna v. Dizna, Cuyahoga App. No. 80029, 2002 Oliio

2753.

[*P9] In a similar case, Firstar Bank Mibvaukee v.Elizabeth GVhitmore, Cuyahoga App. No. 81349, 2003Ohio 1506 [**4] , Whittnore's first appeal wasdismissed by this court as untimely and she then filed aCiv.R. 60(B) motion for relief frotn judgment in the trialcourt. When that motion was denied, Whitmore appealedagain. Id. This court stated that "a Civ.R. 60(B) motiondoes not extend the time for filing an appeal, Whitmore'sattempt to again appeal, based on the same perceivederrors in the magistrate's decision, remains untimely.Lack of timeliness deprives this court of jurisdiction toconsiderthe merits of the issue raised therein•" Id.

[*P10] In the instant case, Pauer's first notice ofappeal was dismissed as untimely. She then returned to

Page 2

the trial court, filing a Civ.R 60(R) motion to vacate thc

suuunary judgment orcler and the order for sanclions-,

citing the same issues alleged in her noticc of appeal.

Wlten tllat motion was denied, Pauer the0 filed another

notice of appeal in a.seentingly timely fashion. However,

we find that Pauer's appeal is untimely, attd we are

therefore unable to mlo upon any assigned error related to

the trial court's denial of Pauer's Civ.R.60(B) tnotiou

because it was based upon the same perceived errors

alleged in ttie ficst appeal, whiclr was disniisscd as

untimely. [**5]

[*PI1] That being said, an issue still rernains as to

the propriety of the trial court's order for sanctions that

included attontey fees for a related Geauga Couuty case,

whiclt was dismissed on the merits. Pauer argues that the

trial coutY lacked jurisdiction to issue sanctions against

her for a Geauga Couaty case that was dismissed on the

merits and affirmed on appeal. We agree and find that the

trial cottrt lackcd subject nraner jurisdiction over the

claims filed and adjudicated in Geauga County. The court

only had jurisdiction and authority to impose sanctions

regarding the case pending before it.

[*Pl2] This court stated in State v. Kenney,

CuyahogaRpp. No. 8065.3, 2003 Ohia 2046: "Whcrc the

trial court enters an order without jurisdiction, its order is

void and a nullity. No appeal can be taken Crotn a void

judgment, as a void judgment is necessarily not a final

appealable order." Nevertheless, it is well established that

the defense of lack of subject rnattcr jurisdiction can

never be waived. In re King (1980), 6Z Ohio St2d 87,

403 N.E.2r1 200. Obicctioas based upon lack ol'subject

matter jurisdiction may be raised at any stage of the

proceedings, [**6] Byard v. IJyler (1996), 74 Ohio St.3d

294, 1996 Oliio 163, 658 NE.2d 735; may be raised for

the first tiute on appeal, Jenklns v. Keller (1966), 6 Ohio

St.2d 122, 216 N.E.2d 379, paragraplt 6ve of the syllabus;

or may be attacked collaterally, State v. SJnurn (1982), 7

Ohio App.3d 244, 7 Ohio B. 323, 455 N.E.2d 531.

Moreover, parties may not, by stipulation or agreement,

confer subject tnatter jurisdiction on a court, where

subject matter jurisdiction is otherwise lacking. Fox v.

Eaton Corp. (1976), 48 Ohio St.2d 236, 358 N.E.2d 536.

A judgment entered by a court that lacks subject matter

jurisdiction is void ab initio. Myers v. Clinebell (May 14,

1999), Sandusky App. No. S-98-048, 1999 Ohio App.

LF,XlS 2132.

[*P13] A motion to vacate a void judgment does

2004 Ohio 2019, °'P13; 2004 Ohio App. LEXIS 1747, **6

not need to comply with the requirements of Civ.R.60(6).

Dor.rey v Ford A9otor Co (May 18, 2000), Ctryahoga

App. No. 75636, 2000 OhTo App. LEXIS 2105. Tltc

autbority to vacate a void judgtnent constitutes an

inberent power possesscd by the Ohio courts. f'atton v.

Dienter (1988), 35 Ohio St.3d 68, 518 N.E.2d 941.

Accordingly, because the judgtnettt for sanctions is void

in part, Ihis court must vacate the judgment as to the

attorney's fees incurrcd in dm Geauga case. See Savage v.

Goda (Oct. 26, 2000),Cuyahoga App. No.s.-77473 mtd

77486, 2000 Ohio App. Lb'XIS 4990. [**7] Tlterefore,

ttre judgrnent for sarrctions is partially void and vacated t.o

exctudc the award of attomey's fees related to the Gcauga

case, attd afiirmed as to those incurred for the Cuyahogacase..

[*P14] After a review of the record, including theattorney's fee bifl and the court docket, we find that theaward of sanctions should be reduced by $5,445. Wedetermined that 35.3 hours in attomey's fees and $150 infiling fees related to the Geauga case; tlrus, the judgmentis void only as to those fees.

[*P151 The judgment is aftitmed in patt and

vacated in patY.

Judgment af6rnred in part and vacated in part.

ANNE L. KI1..BANE, P.J., CONCURS.

COLLEF.N CONWAY COONEY, J., CONCURS IN

Page 3

JUDCrMF,NT ON LY.

`I'his cause is affinned in pairt and vacated in part

II is ordcred that appellant and appe(lccs 9hare Ihecosts herein taxed.

't'he court frnds there were reasonable grounds forthis appeal. It is ordered that a special mandate issue outof this court clirecting the Chyahoga Cottnty ConmzonPleas Court to carry this judgtnent into execution.

A certified copy of this entry shall constitute themandate pursnant to Rtde 27 of die Rules of Appellate[**8] Procedure.

SEAN C. GALLAGI3ER

JCTDGE

N.H. This eutry is an announcement of the court's

decision, See App.R. 22(B), 22(D) and 26(A); Loc.App.R.

22. This decision will be joumalized and will become the

judgment and order of the court pursuant to App.R. 22(E)

unless a motion for reconsideration with supporting brief,

per App.R. 26(A), is filed within ten (10) days of the

atmouncetnent of the court's decision. The time period for

review by the Supreme Cottrt of Ohio shall begiu to mn

upon the joumalization of this court's annonnccmcnt of

decision by the cierk per App.R. 22(E). Sce, also, S. Cl.

Prac.R. II, Section 2(A)(1).

Page 7

I,t?XSEE 2003 OHIO 1749

LARRY KOVAII, PlaintitT-Appellant,- vs - MONICA LATOSICY,Defendant-Appcllec.

CASE NO, 2002-L-037

COURT OF APPEALS OF OIIIO, ELEVP]N'rH APPELLATE DISTRIC'1', LAKECOUNTY

2003 Ohio 1749; 2003 Ohfo App. LEXIS 1662

April 4, 2003, Decided

SUBSEQCTT:NT IfISTORY: ["l] As Corrected April1, 2004.

PRIOR HISTORY: Civil Appeal from WilloughbyMunicipal Couct, Case No. 02 CVG 00055. .

DISPOSITION: Affirtned.

CODNSEL:

Keith R. Kraos aud Richard N. Selby, If, Dworken &

Bcrnstein Co., L.I'.A., fainesvilte, OI-1 (por

Plaintiff-Appellan t).

Micltael P. Gennano, Wiles and Richards, Eastlake, OH

(For Defendant-Appel lee),

JUDGES: DIANE V, GRENDELL, J. DONALD R.FORD, P.L, concurs, JUDITH A. CHRISTLEY, J.,dissents with Dissenting Opinion.

OPINION BY: DIANE V. GRENDELL

OPINION: DIANE V. GRF,NDF,LL, J.

[*PIj Larry Kovar ("appellant") appeals theFebruary 11, 2002 decision of the WilIoughby MunicipalCourt, In that decision, the trial court granted MonicaLatosky's ("appellee") motion to stay the forcible entryand detainer action initiated against her by appellant. Forthe following reasons, we affirtn the decision of theWilloughby Municipal Court in this matter.

[*P2] Appellant filed a forcible enhy aud detainer

action against appellee on January 10, 2002. Appelleethen filed a complaint for divorce in the Lake CountyCommon Pleas Court on January 24, 2002. On January25, 2002, appeliee filed her answer to appellant's forcibleentry complaint, asserted a dofense of common lawmatriage, and noted tliat a divorce action was pending inthe Lake [**2] County Common Pleas Court. Appelleealso filed her motion to stay on January 25, 2002, inwhich she provided speeific information as to the originof the alleged common law marriage with appellant.

[*P3] A hcaring on the motion to stay was heldbefore the magisnate on February 7, 2002. At theconclusion of the hearing, the magistrate decided to staythe matter periding a determination of the parties' maritalstatus aixd property rights by the Lake County Common

Pleas Court, Domestic Relations Division. The nturucipal

court adopted the magistrate's decision on February 11,

2002. This timely appeal followed, and appellant asserts

one assignment of error for our review:-

[*P4] "[1.] The erial court erred tothe prejudice of plaintiff-appellant bystaying the eviction proceeding on thebasis of a subsequently filed "common lawman•iage" divorce complaint."

[*P5] Appellant contends that tlre municipal courtin this case has original jurisdiction over the forcibleentry and detainer action pursuant to R.C: 1901.18(A)(8).Appellant also contends that: "A forcible entry anddetainer action is intended to serve as an expeditedmechanism by which an aggrieved landlord may recover[**3] possession or real property ***. Thus, ***, thedrafters of the Rules of Civil Procedure were careful to

2003 Ohio 1749, 'P5; 2003 Oltio App. LEXIS 1662, **3

avoid encrusting the special rcmcdy with a tizne

cansuming procedure tcrtding to destroy its efficacy."

A9iele v Ribovic/t (2000), 90 Olno S1.3d 439, 441, 2000

Ohio 193,739NG.Zd333.

[*1'6] for most for'cible entry and detairter cases,

appellant is cotrect. However, cases involving the

possible exclusion of a spouse from a marital residence

fall witltin an exception to the norm.

[*P7] Generally, a ntunicipal court has original

jurisdiction over forcible entiy artd detainer actions. B.C.

1901.18(11). In exercising that jurisdiction, the issue is

the inipact, if atty, of a party's assertion of an existittgmarriage.

[*P8] Although "municipal courts have jurisdiction

to determine cases in forcible detainer, they are without

jurisdiction to determine domestic relations cases and

niay not determine that one or the other niay be excluded

froan the marital home pursuant to statute providing Ihat

neither spouse can be excluded from the other's dwelling,

except on a decree or order of injunction by a court of

competent jurisdiction." Slansky v. Slansky (1973), 33Ohio App.2d 127. 139, 293 N.fi.2d 302; ["*4] R.C.

3103.04. A"Common Plcas Cotu-t, or its docnestic

relations division, ltas exclttsive jurisdiction to excludeone spouse from thc menital dwelling." .Slansky, s'upra.

Purtherrrtore, "The court of conunon pleas, ineluciing

division of courts of domestic relatious, bas full equity

power and jurisdiction appropriate to the determination of

all domestic relation matters." R.C. 3105.11.

['1'9] fn .S'lansky, tlte parties wcre unqucstiotubly

married. Therefore, the marital status of the parties was

not at issue. By contrast, the marital statps of the parties,

as an alleged common law marriage couple, is the cenfral

issue in tttis case.

["'P10] This court addressed the comrnon lawmarriage defense issue in Demidovich v. Poccia (Nov.10, 1988), 11th Dist. No, 4036, 1988 Oltio App. LE 184483. In that case, the defendant in a forcible eniry anddetainer action asserted that she was the cotnmon lawwife of the plaintiff-property owner, and, therefore, tltemunicipal court lacked subject matter jurisdiction. Thiseoutt distinguished that alleged common law marriagecase from the actual marriage situation in Slanskybecause the [**5J pending common law divorce actionhad beeu dismissed. Thus, we conduded that a municipaltrial court is not required to address the marriage defense,

Page 2

and tnay procecci with the forcible entry action, unless

evidence of a valid marriage is presented. Moreover, tltis

court held that the dcfcndant's "tnere" assertion in her

answer Uiat a common law tnarriage existed was notsufficientto establisltttte defense. Id at 2.

[*PI1] The Eighth Appellate District reached asitniiar conclusion in Stafc ex rel. Car-r-o v- Weiler (2001),

143 Ohio App.3d 402, 758 N.E.2rl 225 (fact that allegedconunon law wife was appcaling the determinationof the

Court of Cornmon Pleas, Division of Domestic Relations,that she was not a common law wife, did not deprive thc

rnunicipal court of jurisdiction in a forcible entry and

detainer action). At a minimum, a munieipal eourt hasjurisdiction to determine whether the assertion of anexisting marriage, in this case a common law tnarriage, is

a dilatory tactic to clelay such expedited proceedings or issupported by some credible evidence that preeludesfurtlter jurisdiction over the issue and warrants a stay ordismissal of those proceedings.

[*P72] The nutnicipal court [**6] in this case wasfaced with an alleged contmon law marriage. Consistentwith Dernidovic/r, the municipal court in this case hadjurisdiction to take evidence orr the issue of an existittgconmton law or statutory marriage. I.n other words,appellee cuuld havc provided the trial court with aliceuse, c-ettif3cate, proof of disposition on the maritalissue from a couri of valid jurisdiction, or cvidence of avalid conunon law marriage. If appellee were able to doso, tlten the case would evolve into an action to quiettitle, whiclr would require the municipal court to dismissthe action for lack of jurisdiction. flaas v. Oerski (1963),175 Ohio St. 327, 194 N.E.2d 765; Wells v, Cunningham(1990); 56 Ohio Misc.2d 9, 564 N.E.2d 758. However, ifappellee cottld not prove that an existing marriage waspresent, the rnwticipal court could then proceed with theittstant forcible entry and detainer action. Dernidovici•t,supra. In that case, the municipal coutt's deterttilnationthat the parties wore not iuvolved in an existing marriagewould only be applicable to the specific facts of theforcible entry and detainer action and would not serve asa bar to a[*•7] sttbsequent action brought by eitherparly. R.C. 1923.03. A subsequent divorce action couldstill be adjudicated in the domestic relations court. Haas,supra, at 330.

[*P13] While the municipal court in this case hadjurisdiction to proceed with the forcible entry auddetainer action, the couri also had the power to stay

2003 Ohio 1749,'P 13; 2003 Ohio App. LEXIS1662, "*7

proceedings if the cireumstanceswanantedsueh a slay.

[*P14] A trial court's decision to stay proceeclings

shall not be overturned absent au abase of discretion.

G(enntoore Builders, Inc. v. Kennedy, llth Dist. No.

2001-P-0007, 2001 Ohio 8777, 2001 Ohio App., LEXIS

5449. An abuse of discretion is more than an error of law

or,judgment; it implies that tlre action of the trial court

was unreasonable, arbittaty, or ttnconscionablc_Blakemore v. Blakemore (1983), 5 Ohio S'r.3d 217, 219, 5

Ohio B. 481, 450 N.E.2d 1140.

["Pt 5] Courts have the power to stay proceedings

pending resolution of poteutially dispositive

developments. State v. llochhausder (1996), 76 Ohio

St.3d 455, 464, 1996 Ohio 374, 668 N.E.2d 457; State ex

rel. Smith v. Friedman (1970), 22 Ohio St.2d 25, 257

NE.2d 386. This authority flows from the inherent [**8]

power of the courts to control their dockets, Id. Anrong

the factors that courts have held warrant a stay are the

efficiency and judicial economy that results from staying

matters peud'utg resolution of potentially dispositive

developments. See State ex rel. Zeliner v. Bd. of Edn. of

Cincinnati (1973), 34 Ohio St.2d 199, 202, 297 N.E.2d

528. Additionally, the commoa pleas domestic relations

courl also has cottcun'ent original jurisdiction in aforcible entry and detaincr action. Seventh tlrban, Inc, v.

Univ. Circle Property Dev., Inc. (1981). 67 Ohio St.2d

19, 423 N.E.2d 1070.

[*P16] Avoiding judicial duplication and

potentially divergent judicial ntlings are valid reasons for

staying an action pending resotution of' potentially

dispositive developntents. Thosc tcasons are particularly

relevant in this case where a decision to evict appellee

could subsequently rurt afoul of R. C. 3103.04, should the

domestic relations court conGnrt the existeuce of a

common law marriage.

[*P17] In the interests of judicial econotny, themunicipal court had the discretionary authority to grant astay in the instant matter. If the parties in this case wereadjudged ["°"9] to be involved in a common lawmarriage, then R.C. 3105.11 would bar the mmnicipalcourt from excluding appellee from the marital home. Wecannot say tltat the municipal court abused its discretionby staying this action. Under these circutnstances, thcexercise of the municipal court's discretionary stayauthority was proper.

Page 3

fhat ttte municipal court's decision to stiy the proceedings

was not an abuse of discretiou. Appellant's solc

assigtmtent of error is without rncrit. 7he decisiou of Ilte

Willoughby Municipal Court is afFrmed.

DONALD R. pOkl),P_J., concurs,

JUDITH A. CHRISTLEY, J., dissents with DissentingOpittion.

DISSENT BY: .NDITH A. CHRIS'i'LEY

DISSENT: JUDITH A. CHRISTLEY, J., dissents withDissenting Opinion.

[*P191 I respectfully dissent primarily concerningthe ability of the municipal court to stay the foreible entryand detainer action. However, I also have concerns withother aspects of the analysis with respect to the extent ofa municipal court's jurisdiction when a conunon lawmarriage claim is asserted.

[*P20] There is no question thai absent an

unambiguous lack of jurisdiction, any court, includiug a

munieipal [**10] court, has the authority to detenninc itsown jurisdiction. State ex ret. Roots Local School Dist.Bd. of Edn. v. Portage Cty. Court of Cotnmon Pleas(1977), 78 Ohio 8t.34 489, 491-492, 678 N.E.2d 1365.

llrus, to that limited extent, a niunicipal court ean

conduct a narrow inquiry when a claim of a common law

mamage is asserted as a defense to a forcible entry anddetainer action. Tfte fact that such a claim is being madeas a dilatory tactic is irrelevant to the cotuY's right toinquire.

[*P21] That being said, when a claim of contrrtonlaw trtmTiatge is made, the total extent of the municipalcourt's inquiry is whether ajudicial adjudicationregarding the existence of a common law marriage hasa lreadybeen mudc by a court of competent jurisdiction.Ifthere is no evidence of such a deternrination, then the

municipal court can proceed with the forcible entry anddt:tainer action as though the parties were unntarried. Themunicipal court has absolutely no jurisdiction to gobeyond that inquiry as the jurisdiction to detetmine thevalidity of a claim of a common law marriage is theexclusivejurisdiction of the domestic court.

[*P22] T'his is no diff8rent from a situation were atenant [*'rll] claims an equitable interest in the realestate as a defense to eviction. The municipal court has

2003 Ohio 1749, *P22; 2003 Ohio App. LEXIS 1662, ** l I

no jnrisdiction to maintain a quict title action; benCe, it

nmst procecd solely oo the issuc of who holds presentrecorded titte. Haas v. Get-ski (1963), 175 Ohio St. 327,

194 N.G.2rI765. It cannot go beyond that determination.

[*P23] Under flaas, reliance ort present title wasclearly not considered to be a quiet title action as therewas no detemiination of title beyond thc simpledetetntination of who was the present titleholder ofrecurd. It would be a simple inquiry as to the status of anexisting public record. As a result, an evictionproceedingin niunicipal court was irrelevant to any petuiing orsubsequent comntou pleas action to quiet title, as tlrerewottld be no conflicting determination of title.'t"he reasonbcing is that "there [was] no question as to present recordtitle" in the municipal court. Id. at paragraph one of thesyllabus.

[*P24] The principles set out in Flaa.r werereaffirmed in 1980 by the Supreme Court of Ohio in State

ex rel. Carpenter P. Warren Mun. Court (1980), 61 Ohio

St.2d 208, 400 N.E.2d 391. There, not only did the courtdetennine [** 12] that the municipal court could proceedwhen there is a simultaneous quiet title action proceeding

in common pleas court, but it detennined that it ntustprocccd.

[*P25] Again quoting Naas, tlte Supreme Coutt

held that "'In the case at bar, appellee held the title to the

property by duly recorded deed. *** For the purpose of

t'at;e 4

the forcible entry and detainer action, this was conclusive

of his right to present possession after having given the

required notice to vacate the 1remises. Were appellee notpennitted to prove his riglet to pos:ce.rsion by proving his

record t[tle, the forcible enlby and detainer statute would

have little mcaning. ***" (Etnpltasis sic and cita(ions

omitted.) State ex ret. Carpenter at 209, quoting Haas at330-331.

["P26] "To allow the Municipal Court the

discretion to stay proceedings in this cause would be to

defeat ttte purpose of the forcible entry and detainer

statutes (i.e-, inrmediate possession), to permit their

circumventionby.rnerely bringing title into question in a

collateral suit in common pleas court, and to deny

through successivc appeals, ttte relief they were intendedto provide." (Emphasis sic.) State ex rel. Carpenter at210.

[*P27] Thus, ["* 13] not only is the iuquiry into.

the existence of.a comnton law marriage very limited iu a

forcible entry and detainer action, but if no legal

adjud'tcation is found to exist, the municipal court mttst

proceed to adjudicate the eviction as though the parties

were uiunarried. Per Carpenter, no stay is permissible if

there is evidence of a present record title in the name of

the landlord. Thus, I would reverse and remand to ttie

trial court with orders to procecd with the eviction.