State ex rel. Dannaher v. Crawford

[This opinion has been published in Ohio Official Reports at 

78 Ohio St.3d 391

.]




THE STATE EX REL. DANNAHER, APPELLANT, v. CRAWFORD, JUDGE, APPELLEE.
           [Cite as State ex rel Dannaher v. Crawford, 

1997-Ohio-72

.]
Prohibition—Writ prohibiting Franklin County Common Pleas Court judge from
        transferring case to Perry County Common Pleas Court denied, when—
        Mandamus compelling Franklin County Common Pleas Court judge to
        proceed in a case transferred from Perry County Common Pleas Court
        denied, when.
       (No. 96-1974—Submitted March 18, 1997—Decided May 14, 1997.)
   APPEAL from the Court of Appeals for Franklin County, No. 96APD02-202.
                                  __________________
        {¶ 1} In December 1992, appellant, Elizabeth Dannaher, purchased a house
in Perry County, Ohio. William and Evelyn Coble own a home that is adjacent to
Dannaher’s property.       Dannaher’s realty is subject to an ingress and egress
easement, which includes a driveway shared with the Cobles. An underground line
that provides natural gas to the Cobles runs across Dannaher’s property.
        {¶ 2} In August 1994, Dannaher filed an action in the Franklin County
Court of Common Pleas, naming Franklin County businesses, including Columbia
Gas of Ohio, as defendants. Dannaher sought the termination of the transportation
of gas across her property.         The common pleas court joined the Cobles as
defendants, and the Cobles waived venue as a defense to the action. The Cobles
claimed an easement in the gas line. Dannaher set forth causes of action in trespass,
ejectment, declaratory judgment, and breach of contract.
        {¶ 3} In May 1995, the Cobles filed an action in the Perry County Common
Pleas Court that alleged that Dannaher had unlawfully interfered with the Cobles’
use of the ingress and egress easement on Dannaher’s property by placing blocks
in the common driveway. The Cobles requested injunctive relief and damages.
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Dannaher filed a counterclaim against the Cobles and a third-party complaint
against certain of the Cobles’ social guests, all of whom are Perry County residents.
Dannaher claimed that the Cobles and their guests had created a nuisance and
misused the easement by operating motor vehicles at excessive rates of speed and
without headlights on at night. Dannaher requested an injunction to abate the
nuisance, equitable reformation of the easement, and damages.
       {¶ 4} Dannaher filed a motion in the Perry County Common Pleas Court to
relinquish jurisdiction over the driveway case and transfer it to the Franklin County
Common Pleas Court, where it could be consolidated with the gas-line case.
Dannaher asserted that the two cases were “intimately related” and that “both cases
seek a determination of the rights and responsibilities of the owners of adjoining
properties.” Dannaher claimed that the reckless driving by the Cobles and their
guests constituted retaliation for her institution of the gas-line case in Franklin
County. The Perry County Common Pleas Court subsequently granted Dannaher’s
motion and transferred the driveway case to Franklin County for consolidation with
the gas-line case.
       {¶ 5} In September 1995, the Franklin County judge presiding over the gas-
line case denied Dannaher’s motion to consolidate it with the driveway case
transferred from Perry County because the cases involved issues which were
“separate and distinct.” In January 1996, appellee, Franklin County Common Pleas
Court Judge Dale Crawford, granted the Cobles’ motion to change venue and
transferred the driveway case back to Perry County.
       {¶ 6} Dannaher then filed a complaint in the Court of Appeals for Franklin
County requesting a writ of prohibition to prevent Judge Crawford from
transferring the driveway case back to the Perry County Common Pleas Court, and
a writ of mandamus to compel Judge Crawford to proceed in the driveway case.
After the parties filed evidence and briefs, the court of appeals denied the writs.
       {¶ 7} The cause is now before this court UPon an appeal as of right.



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                                January Term, 1997




                             ____________________
       Garold L. Newbold, for appellant.
       Ron O’Brien, Franklin County Prosecuting Attorney, and George E.
Speaks, Assistant Prosecuting Attorney, for appellee.
                             ____________________
       Per Curiam.
       {¶ 8} Dannaher claims that the court of appeals erred by denying the
requested writs of prohibition and mandamus. For the reasons that follow, we find
that Dannaher’s contentions are meritless and affirm the judgment of the court of
appeals.
       {¶ 9} Neither prohibition nor mandamus will lie where relator possesses an
adequate remedy in the ordinary course of law. State ex rel. Hunter v. Certain
Judges of the Akron Mun. Court (1994), 

71 Ohio St.3d 45, 46

, 

641 N.E.2d 722, 723

. Absent a patent and unambiguous lack of jurisdiction, a court having general
subject-matter jurisdiction can determine its own jurisdiction, and a party
challenging the court’s jurisdiction has an adequate remedy by appeal. State ex rel.
Enyart v. O’Neill (1995), 

71 Ohio St.3d 655

, 656, 

646 N.E.2d 1110, 1112

. But
where a lower court patently and unambiguously lacks jurisdiction over the cause,
prohibition and mandamus will issue to prevent any future unauthorized exercise
of jurisdiction and to correct the results of prior jurisdictionally unauthorized
actions, notwithstanding the availability of appeal. State ex rel. Fraternal Order of
Police, Ohio Labor Council, Inc. v. Franklin Cty. Court of Common Pleas (1996),

76 Ohio St.3d 287, 289

, 

667 N.E.2d 929, 931

; State ex rel. Fogle v. Steiner (1995),

74 Ohio St.3d 158, 161

, 

656 N.E.2d 1288, 1292

.
       {¶ 10} Judge Crawford transferred the driveway case back to Perry County.
Therefore, prohibition and mandamus will not issue to vacate the transfer order and
compel Judge Crawford to proceed in the case unless Dannaher establishes a patent




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and unambiguous lack of jurisdiction on the part of Judge Crawford to grant the
Cobles’ motion for change of venue.
        {¶ 11} In her first proposition of law, Dannaher asserts that Judge Crawford
lacked jurisdiction to transfer the case back to Perry County due to the jurisdictional
priority rule. The jurisdictional priority rule provides that “‘[a]s between [state]
courts of concurrent jurisdiction, the tribunal whose power is first invoked by the
institution of proper proceedings acquires jurisdiction, to the exclusion of all
tribunals, to adjudicate upon the whole issue and to settle the rights of the parties.’”
State ex rel. Racing Guild of Ohio v. Morgan (1985), 

17 Ohio St.3d 54, 56

, 17 OBR
45, 46, 

476 N.E.2d 1060, 1062

, quoting State ex rel. Phillips v. Polcar (1977), 

50 Ohio St.2d 279

, 

4 O.O.3d 445

, 

364 N.E.2d 33

, syllabus.
        {¶ 12} Generally, “it is a condition of the operation of the state jurisdictional
priority rule that the claims or causes of action be the same in both cases, and ‘[i]f
the second case is not for the same cause of action, nor between the same parties,
the former suit will not prevent the latter.’” State ex rel. Sellers v. Gerken (1995),

72 Ohio St.3d 115, 117

, 

647 N.E.2d 807, 809

, quoting State ex rel. Judson v. Spahr
(1987), 

33 Ohio St.3d 111, 113

, 

515 N.E.2d 911, 913

.
        {¶ 13} The gas-line and driveway cases involve different claims for relief.
The gas-line case involved claims of trespass, ejectment, declaratory judgment, and
breach of contract.     The driveway case involved claims of interference with
easement, nuisance, and equitable reformation. Further, the cases had different
parties, with the gas-line case including Franklin County businesses not joined in
the driveway case and the driveway case including certain Perry County residents
who were not parties to the gas-line case. Although the cases involved rights
concerning the same general property, they concerned separate and distinct issues,
one involving an ingress and egress easement and the other involving an alleged
gas-line easement.




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                                January Term, 1997




       {¶ 14} Based on the foregoing, the jurisdictional priority rule did not
patently and unambiguously divest Judge Crawford of the requisite jurisdiction to
grant the Cobles’ motion and transfer the driveway case back to Perry County.
Sellers, 

72 Ohio St.3d at 118

, 

647 N.E.2d at 810

, quoting Goldstein v. Christiansen
(1994), 

70 Ohio St.3d 232, 238

, 

638 N.E.2d 541, 545

 (“[W]e need not expressly
rule on the jurisdictional issue ‘since our review is limited to whether ***
jurisdiction is patently and unambiguously lacking.’” [Emphasis sic.]). Appeal
constitutes an adequate legal remedy to raise any claimed error in failing to apply
the jurisdictional priority rule. We overrule Dannaher’s first proposition of law.
       {¶ 15} Dannaher asserts in her second proposition of law that the court of
appeals erred in failing to issue writs of prohibition and mandamus because Judge
Crawford failed to follow the law-of-the-case by refusing to accede to the Perry
County Common Pleas Court’s transfer order in the driveway case.
       {¶ 16} Under the law-of-the-case doctrine, “the decision of a reviewing
court in a case remains the law of the case on the legal questions involved for all
subsequent proceedings at both the trial and reviewing levels.” Nolan v. Nolan
(1984), 

11 Ohio St.3d 1, 3

, 11 OBR 1, 2-3, 

462 N.E.2d 410, 412

. This doctrine
precludes a litigant from attempting to rely on arguments at retrial which were fully
litigated, or could have been fully litigated, in a first appeal. Hubbard ex rel. Creed
v. Sauline (1996), 

74 Ohio St.3d 402, 404-405

, 

659 N.E.2d 781, 784

.
       {¶ 17} The portion of the doctrine generally applied in extraordinary-writ
cases provides that “[a]bsent extraordinary circumstances, such as an intervening
decision by the Supreme Court, an inferior court has no discretion to disregard the
mandate of a superior court in a prior appeal in the same case.” Nolan at syllabus;
State ex rel. Crandall, Pheils & Wisniewski v. DeCessna (1995), 

73 Ohio St.3d 180, 182

, 

652 N.E.2d 742, 744

; State ex rel. Heck v. Kessler (1995), 

72 Ohio St.3d 98, 102

, 

647 N.E.2d 792, 796-797

. Writs of prohibition and mandamus are appropriate
to require lower courts to comply with and not proceed contrary to the mandate of




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a superior court. State ex rel. Newton v. Court of Claims (1995), 

73 Ohio St.3d 553, 557

, 

653 N.E.2d 366, 370

; State ex rel. Smith v. O’Connor (1995), 

71 Ohio St.3d 660

, 662, 

646 N.E.2d 1115, 1117

.
       {¶ 18} Dannaher is not entitled to the requested writs based on the law-of-
the-case. First, unlike the cases permitting extraordinary relief because of the law-
of-the-case, Dannaher does not contend that Judge Crawford failed to comply with
the mandate of a superior court. Second, contrary to Dannaher’s assertions, the
Cobles could not have appealed the Perry County court’s change-of-venue order
because an order changing venue does not constitute a final appealable order. See,
e.g., State ex rel. Starner v. DeHoff (1985), 

18 Ohio St.3d 163, 165

, 18 OBR 219,
221, 

480 N.E.2d 449, 451

. Third, although Dannaher cites Clymer v. Clymer (Sept.
26, 1995), Franklin App. No. 95APF02-239, unreported, 

1995 WL 571445

, for the
proposition that the law-of-the-case doctrine encompasses a lower court’s
adherence to its own prior rulings or to the rulings of another judge or court in the
same case, Clymer further held that the law-of-the-case doctrine “should not be
taken to imply that a trial court can never, under any circumstances, reconsider its
prior ruling.”    See, also, Aguinaga v. United Food & Commercial Workers
Internatl.Union (D.Kan.1994), 

854 F.Supp. 757

, 773, noting that this “more
amorphous” category of the law-of-the-case doctrine “involves the consequences
of failure to appeal an issue”; 18 Wright, Miller & Cooper, Federal Practice &
Procedure (1981) 794, Section 4478 (“A wide degree of freedom is often
appropriate when the same question is presented to different judges of a single
district court.   *** Substantial freedom is desirable ***, particularly since
continued proceedings may often provide a much improved foundation for deciding
the same issue.”).    Clymer does not preclude a common pleas court from
reconsidering an interlocutory change-of-venue order entered in the same case by
a different common pleas court judge.          Dannaher’s second proposition is
consequently meritless and is overruled.



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                                January Term, 1997




       {¶ 19} Dannaher asserts in her third proposition of law that the court of
appeals should have issued writs of prohibition and mandamus because Judge
Crawford’s order changing venue of the driveway case to Perry County cannot be
reviewed on appeal.
       {¶ 20} Dannaher’s assertion is baseless. Although an order changing venue
does not constitute a final appealable order, it is reviewable after a final judgment
is entered in the action. State ex rel. Lyons v. Zaleski (1996), 

75 Ohio St.3d 623, 625

, 

665 N.E.2d 212, 214

.
       {¶ 21} In addition, as the court of appeals determined, it appears that Judge
Crawford correctly granted the Cobles’ motion to change venue because the subject
property as well as all of the parties to the driveway case were in Perry County.
The court of appeals also correctly held that venue in the driveway action was
improper in Franklin County. See Civ.R. 3(B).
       {¶ 22} Finally, appeal following a final judgment provides an adequate
legal remedy for Dannaher to challenge Judge Crawford’s change-of-venue order.

Id.,

75 Ohio St.3d at 625

, 

665 N.E.2d at 215

; State ex rel. Ruessman v. Flanagan
(1992), 

65 Ohio St.3d 464, 467

, 

605 N.E.2d 31, 35

; State ex rel. McCoy v. Lawther
(1985), 

17 Ohio St.3d 37, 38-39

, 17 OBR 30, 32, 

476 N.E.2d 1048, 1049

.
Dannaher’s claim that this appeal would be inadequate due to time and expense
lacks merit. Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm. (1995), 

74 Ohio St.3d 120, 124

, 

656 N.E.2d 684

, 688. Dannaher’s further claim that appeal is
inadequate because the Perry County and Franklin County courts could simply
transfer venue back and forth ad infinitum is not supported by the evidence. Cf.
State ex rel. Wallace v. Tyack (1984), 

13 Ohio St.3d 61

, 13 OBR 379, 

469 N.E.2d 844

 (writs of procedendo issued against Court of Claims and common pleas court
where both courts had stayed wrongful death actions pending resolution of other
court’s proceeding, resulting in preclusion of any final order in either action).
Dannaher’s third proposition is overruled.




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       {¶ 23} Accordingly, the court of appeals did not err in denying writs of
prohibition and mandamus. Therefore, the judgment of the court of appeals is
affirmed.
                                                            Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                            __________________




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