COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60826 STATE, EX REL. C. DOUGLAS : THOMAS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION OHIO DEPARTMENT OF : REHABILITATION AND CORRECTION,: ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 097575 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: C. DOUGLAS THOMAS, ESQ. LEE FISHER, ESQ. P.O. Box 18270 ATTORNEY GENERAL Cleveland, Ohio 44118 R. PAUL CUSHION, II, ESQ. ASST. ATTORNEY GENERAL 12th Floor, State Office Building 615 West Superior Avenue Cleveland, Ohio 44113-1899 - 1 - DYKE, J.: Appellant appeals from the Civ. R. 54(B) dismissal of his complaint for money damages against appellees, employees of the Ohio Department of Rehabilitation and Correction. Appellant filed his original complaint with the Court of Common Pleas in September of 1985, alleging that the appellees had maliciously and intentionally violated their duty to allow appellant access to certain public records. In October of 1985 the Court of Common Pleas granted appellant's motion for a peremptory writ ordering the appellees to allow appellant access to the records as they were required to under R.C. 149.43. The Court of Common Pleas was still considering the issue of money damages against the appellees. On January 30, 1987, appellant filed a suit in the Court of Claims based on the same allegations made in appellant's case pending in the Court of Common Pleas. Appellees filed a motion for summary judgment in the Court of Common Pleas. The motion asserted that the Court of Common Pleas had no further jurisdiction over the matter because appellant had filed a concurrent action in the Court of Claims. Under R.C. 2743.02 a plaintiff waives his right to sue on the same issue in other forums once the plaintiff initiates an action in the Court of Claims. The Common Pleas Court entered an interlocutory dismissal of the case in May of 1987, citing Smith - 2 - v. Stempel (1979), 65 Ohio App. 2d 36, at paragraph 3 of the syllabus: Where a plaintiff has an action pending in the Court of Common Pleas against several state officers or employees and a simultaneous action pending against the state in the Court of Claims based upon the same act or omission, upon the raising of the issue of waiver in the Court of Common Pleas on the basis that another action is pending in the Court of Claims, Civ. R. 54(B) permits the Court of Common Pleas to enter an interlocutory order of dismissal which may be later modified, removing the necessity of proceeding to trial with respect to the defendant state officers or employees and deferring the entry of final judgment until the Court of Claims has made its determination upon the issue of scope of employment. In June of 1990, the Court of Claims dismissed appellant's case with prejudice for failure to show that he had dismissed the other cases pending in other courts. The Court of Claims never reached the issue of appellees' scope of employment and whether they acted within that scope in denying appellant access to the records. In October of 1990, the Court of Common Pleas modified its interlocutory dismissal and entered a final order of dismissal. - 3 - It is from this final order of dismissal that appellant appeals. 1 Appellant makes three assignments of error. I THE TRIAL COURT ERRED IN GRANTING AN INTERLOCUTORY ORDER OF DISMISSAL. Appellant argues that the dismissal of the proceedings by the Court of Common Pleas was improper, citing Walker v. Steinbacher (1987), 37 Ohio App. 3d 1. Appellant's first assignment of error is not well taken. His reliance on Walker v. Steinbacher is misplaced. The facts of that case indicate that no action had ever been filed in the Court of Claims. Walker simply stands for the proposition that, where the Court of Common Pleas still has jurisdiction over the case, it should stay the proceedings until a Court of Claims action can be filed and the Court of Claims can decide the scope of employment issue. Where a Court of Claims action has already been filed, the interlocutory dismissal is appropriate. The Court of Common Pleas in this case correctly relied upon Smith v. Stempel (1979), 65 Ohio App. 2d 36. The Court of Appeals in Franklin County interpreted R.C. 2743.02(A)(1) to constitute a waiver of the appellant's right to bring suit in 1 Appellant lists differently worded assignments of error on page 2 of his appellate brief than the assignments listed and addressed in the argument portion of his brief. This opinion will address the assignments of error as worded in appellant's argument. - 4 - another court once he or she chose to file an action in the Court of Claims. R.C. 2743.02(A)(1) reads in pertinent part: Except in the case of a civil action filed by the state, filing a civil action in the court of claims results in a complete waiver of any cause of action, based on the same act or omission, which the filing party has against any state officer or employee. The waiver shall be void if the court determines that the act or omission was manifestly outside the scope of the officer's or employee's office or employment or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner. The court in Smith v. Stempel proposed that Civ. R. 54(B) allows a Court of Common Pleas in this situation to enter the interlocutory dismissal, rather than a final dismissal. This measure would prevent the inefficiency of having a plaintiff refile his or her claim in the Court of Common Pleas if the Court of Claims made a determination that the defendant's act or omission was outside the scope of employment or malicious, in bad faith, etc. ... The Ohio Supreme Court supported this interpretation indirectly in Cooperman v. Univ. Surgical Assoc. (1987), 32 Ohio St. 3d 191. The facts of that case are similar to Walker v. Steinbacher, supra. The plaintiff had filed a complaint in the Court of Common Pleas. The trial court granted defendants' motion to dismiss because the court thought that it lacked subject-matter jurisdiction pursuant to R.C. 2743. The appellate - 5 - court in Franklin County upheld the dismissal. The Ohio Supreme Court held "that neither R.C. Chapter 2743 nor R.C. 9.86 divests the common pleas court of subject-matter jurisdiction under these facts." Cooperman, at 193-94. The plaintiff had never filed an action in the Court of Claims. We hold, therefore, that a court of common pleas does not lack jurisdiction over an action against state officers or employees merely because the Court of Claims has not first determined that the act or omission, which is the subject of the action, was manifestly outside the scope of the officer's or employee's office or employment, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner. This rule does not obtain, however, if the aggrieved party has also filed a concurrent suit in the Court of Claims based upon the same act or omission. As appellee has filed no action in the Court of Claims based upon the acts herein complained of, the waiver provision of R.C. 2743.02(A)(1) does not apply, and the court of common pleas retains its jurisdiction, if such jurisdiction is otherwise proper. Conversely, a Court of Common Pleas does not have jurisdiction once a claim stemming from the same act or omission has been filed in the Court of Claims. The Ohio legislature amended R.C. 2743.02 effective October 20, 1987, to clarify the jurisdictional issues between the Courts of Common Pleas and the Courts of Claims. Section (F) contains the following: - 6 - A civil action against a state officer or employee ... 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 responsibili-ties, 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, which has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to civil immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action. R.C. 2743.02(F) requires the claim against state officers or employees to be filed first in the Court of Claims. This added section provides a procedural guideline for plaintiffs and avoids the Civ. R. 54(B) solution to the jurisdictional problem, proposed by the Franklin County Court of Appeals in Smith v. Stempel. Under the recently enacted Section (F) or under Smith v. Stempel, with support from the Ohio Supreme Court's Cooperman v. Univ. Surgical Assoc., the Court of Common Pleas in the case at issue here was correct in its dismissal of the proceedings while the same issues were being determined by the Court of Claims. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED IN ENTERING AN INTERLOCUTORY JUDGMENT CONTRARY TO THE FIRST JUDGMENT OF THE COURT. - 7 - This assignment of error is incorrect in its assertion that the interlocutory dismissal affected the court's grant of appellant's motion for a peremptory writ at the beginning of the case. The trial court specifically rejected the appellees' arguments in their motion for reconsideration of the peremptory writ order. The trial court found that the appellees' motion was a nullity because the peremptory writ was a final order, and overruled the motion on that basis (p. 2 of the trial court's judgment entry dated 5/4/87.) The court entered the interlocutory dismissal only on the basis of appellant's waiver under R.C. 2347.02. (p. 4 of the 5/4/87 journal entry). The court reserved jurisdiction to modify the interlocutory dismissal order after a determination by the Court of Claims on the scope of employment issue. (p. 4-5, 5/4/87 journal entry). In no way can it be argued that this order was contrary to or conflicting with the court's peremptory writ order. The appellant's second assignment of error is overruled III THE COURT OF CLAIMS HAS NO JURISDICTION TO DETERMINE LIABILITY IN MANDAMUS ACTIONS. Appellant cites State, ex rel. Mahoning Cty. Community Corr. Assn., Inc., v. Shoemaker (1983), 12 Ohio App. 3d 36, as support for his third assignment of error. That case held that "[t]he Court of Claims has no authority to issue writs of mandamus." - 8 - State, ex rel. Mahoning Cty. Community Corr. Assn., Inc., at paragraph 2 of the syllabus. Appellant was not requesting a writ of mandamus in his Court of Claims action. Appellant's prayer stated the following: WHEREFORE, Plaintiff prays for judgment against Defendants in the sum of TWENTY THOUSAND DOLLARS ($20,000.00) damages, FIFTY THOUSAND DOLLARS ($50,000.00) compensatory damages, and ONE HUNDRED THOUSAND DOLLARS ($100,000.00) punitive damages, attorney fees and costs expended. According to R.C. 2743.02(A)(1) and (F) the Court of Claims has exclusive, original jurisdiction over claims of this nature against state employees. Appellant argues further under this assignment of error that the final dismissal by the Court of Common Pleas was in error because the Court of Claims did not address the issue of the appellees' scope of employment. R.C. 2743.02(A)(1) does not require the Court of Claims to address this issue. However, the statute does allow the Court of Common Pleas to regain jurisdiction over the proceedings, if the Court of Claims finds that the state employees acted outside the scope of their employment. R.C. 2743.02(A)(1) states that the "waiver shall be void" if the Court of Claims determines that the scope of employment had been exceeded. R.C. 2743.02(F) requires the Court of Claims "to determine, initially, whether the officer or employee is entitled to civil immunity under section 9.86 of - 9 - the Revised Code." However, the Court of Claims was not allowed to reach even this point in the proceedings. Appellant failed to perfect his cause of action in the Court of Claims procedurally. The court required appellant to dismiss his other pending cases and to show proof of such dismissals within 20 days. When appellant failed to do so, the Court of Claims dismissed his action with prejudice. If the appellant wished to appeal from that decision, he had recourse to do so in the Franklin County Court of Appeals. R.C. 2743.20. We have no jurisdiction to review the decisions of a Court of Claims. Appellant's third assignment of error is overruled. The final order of the Court of Common Pleas dismissing the case, dated October 10, 1990, is affirmed. - 10 - It is ordered that appellees recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J., AND BLACKMON, J., CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .