COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67735 SANFORD J. BERGER : PER CURIAM : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION CITY OF CLEVELAND : : Defendant-appellee : ACCELERATED DOCKET : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 30, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 264,853 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: ROBERT M. FERTEL Attorney at Law 1836 Euclid Avenue, #305 Cleveland, Ohio 44115-2234 For defendant-appellee: SHARON SOBOL JORDAN Director of Law PAMELA A. PFLEGER WALKER, Ass't. Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the record from the Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel. Plaintiff-appellant, Sanford J. Berger, timely appeals from the judgment of the lower court dismissing his complaint for monetary damages against defendant-appellee, the City of Cleveland (hereinafter "the City"), for the City's failure to repair a damaged and obstructed sanitary sewer system which served appellant's property. Appellant raises the following sole assignment of error for our review: WHEN A COURT RULES THAT IT HAS NO SUBJECT MATTER JURISDICTION TO ISSUE A WRIT OF MANDAMUS DUE TO MOOTNESS, ITS JUDGMENT COMMENTS THEREAFTER CONCERNING REQUESTED DAMAGES CANNOT BE CONSIDERED AS A JUDGMENT ON THE MERITS OF SUCH DAMAGE CLAIM FOR PURPOSES OF RES JUDICATA. Appellant's previous action in this court requested a writ of mandamus to compel the City to make the necessary repairs to its sewer line. However, before this court could reach the merits of appellant's mandamus action, the City agreed to repair its sewer line. Therefore, this court dismissed appellant's petition, holding that "[j]udgment is not being rendered in favor of relator - 3 - [appellant herein] in this case because the action is now moot." State, ex rel. Berger v. Cleveland (Apr. 24, 1992), Cuyahoga App. No. 62719, unreported, at 2. Thereafter, appellant filed the present action against appellee, seeking monetary damages. However, on appellee's motion, the trial court dismissed the instant complaint on the basis that this court's dismissal of appellant's mandamus complaint was res judicata on the instant complaint. The principle of res judicata is that "a final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent action on the same claim or cause of action between the parties or those in privity with them." Johnson's Island, Inc. v. Bd. of Twp. Trustees (1982), 69 Ohio St.2d 41, 243, quoting Norwood v. McDonald (1943), 142 Ohio St. 299, paragraph one of the syllabus. In State, ex rel. Schneider v. North Olmsted Bd. of Edn. (1988), 39 Ohio St.3d 281, the Ohio Supreme Court was confronted with the issue of whether this court's dismissal of a mandamus action, finding that "[t]here is an adequate remedy at law" and that the Ninth District Court of Appeals has "continuing jurisdiction" over the action to enforce its judgment, was actually a dismissal for lack of subject matter jurisdiction. Respondent contended that this court's ruling that an adequate remedy at law - 4 - existed amounted to a dismissal on the merits. However, the court disagreed, noting: Schneider [relator] argues that the Eighth District's holding that the Ninth District had "continuing jurisdiction" over the action meant that the Eighth District lacked jurisdiction. Thus, Schneider contends that, despite the "adequate remedy" language, the dismissal was really grounded on lack of jurisdiction. We agree. Civ.R. 41(B)(4)(a) provides: A dismissal for lack of jurisdiction over the person or the subject matter *** shall operate as a failure otherwise than on the merits. If the Eighth District ruled that it lacked jurisdiction, its ruling is not res judicata to the instant action. The Court went on to conclude that this court's finding that the Ninth District has "continuing jurisdiction" amounted to a finding that this court lacked jurisdiction. Therefore, our finding that there was an adequate remedy at law was not res judicata to subsequent litigation. Thus, where a court dismisses a mandamus action for lack of jurisdiction, its ruling is not res judicata to a subsequent action. This court has reached a similar conclusion in Shirokey v. Marth (July 19, 1990), Cuyahoga App. Nos. 57267 & 57412, unreported. In Shirokey, we explained: Appellant argues the court of appeals' dismissal of appellee's mandamus action operated as res judicata. We disagree. Appellee filed his complaint with the court of common pleas on August 1, 1985. On August 20, 1985, appellee filed a mandamus action in the Court of Appeals for Cuyahoga County, Case No. - 5 - 50783. The mandamus action was dismissed, without a hearing and without opinion, upon motion of appellants. The motion to dismiss raised the argument that appellee had an adequate remedy at law in a pending lower court action. The court of appeals did not have jurisdiction to proceed on the mandamus since an action was pending in the lower court which provided for an adequate remedy at law. State, ex rel. Woodbury v. Spitler (1974), 40 Ohio St.2d 1. While the court did not state a reason for the dismissal, we interpret the judgment of the court of appeals as ruling that it lacked jurisdiction. Pursuant to Civ.R. 41(B)(4)(a), a dismissal for lack of jurisdiction over the person shall operate as a failure otherwise than on the merits; thus, the judgment is not res judicata. State, ex rel. Schneider v. North Olmsted Bd. of Edn. (1988), 39 Ohio St.3d 281. Accordingly, Assignment of Error No. IV is overruled. It is well settled that subject matter jurisdiction of a court is the power to decide a matter on its merits. Morrison v. Steiner (1972), 32 Ohio St.2d 86, 87; and State, ex rel. Stough v. Bd. of Education (1977), 50 Ohio St.2d 47, 49. Conversely, where it is determined that a writ of mandamus would not issue as the dispute became moot, there is no longer an issue to decide, and subject matter jurisdiction does not lie. Therefore, our dismissal of appellant's mandamus complaint was for lack of subject matter jurisdiction as the issue had become moot. A dismissal for lack of subject matter jurisdiction is a dismissal otherwise than on the merits. Civ.R. 41(B)(4)(a). - 6 - In the present case, this court, clearly and unambiguously, held that "[j]udgment is not being rendered in favor of relator in this case because the action is now moot." Moreover, this court's remaining rationale for denying the writ of mandamus was not essential to the judgment since the city had remedied the complained-of situation. Where a determination in a prior action is not essential to the judgment obtained therein, collateral estoppel will not foreclose consideration of the issue in a subsequent proceeding involving a different claim for relief. Kelly v. Georgia Pacific Corp. (1989), 46 Ohio St.3d 134, paragraph one of the syllabus. In the present case, appellant could not litigate his claim for damages since the underlying action in mandamus was rendered moot by the city's actions in repairing the sewers. R.C. 2731.11 provides for damages only where a writ of mandamus is rendered for the plaintiff. Since the writ would not issue because the subject was moot, this court lacked jurisdiction to hear appellant's claim for damages. For the foregoing reasons, we hold the trial court erred in dismissing appellant's complaint on the basis that such complaint was barred by the doctrine of res judicata. Appellant's sole assignment of error is sustained. The judgment of the common pleas court is reversed and the cause is remanded for further proceedings consistent with this opinion. - 7 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is ordered that appellant recover of appellee his 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 Cuyahoga County Court of Common Pleas 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. DONALD C. NUGENT, PRES. JUDGE AUGUST PRYATEL, JUDGE* CONCURS ANN DYKE, JUDGE DISSENTS (See attached opinion) *SITTING BY ASSIGNMENT: August Pryatel, retired Judge of the Eighth Appellate District. 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 journalization, at which time it will become the judgment and order of the Court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67735 : SANFORD J. BERGER : : : Plaintiff-Appellant : : D I S S E N T I N G -vs- : : O P I N I O N CITY OF CLEVELAND : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 30, 1995 DYKE, J. DISSENTING: I respectfully dissent from the majority's opinion as to whether this Court had subject matter jurisdiction to decide the issue of damages in the original action sounding in mandamus. It is my understanding of the law of res judicata that appellant is precluded from raising his claim for damages when he has previously received a full and fair opportunity to be heard by a court of competent jurisdiction. Appellant's November 1991 petition for writs of mandamus requested both that the City be ordered to repair the sewer line and to pay him damages stemming from the costs he had incurred to temporarily repair the line in the amount of $2,828.75. The - 2 - petition was drafted in such a way that each of the claims requested separate writs of mandamus to issue to the City, one order to repair the line and one order to pay appellant his incurred costs. As the majority decision points out, the City undertook to repair the line prior to this Court's hearing of appellant's petition. The City did not, however, offer to pay appellant's requested damages. This Court subsequently dismissed the petition to compel the City to make repairs as moot. See State of Ohio ex rel. Berger v. City of Cleveland (April 24, 1992), Cuyahoga App. No. 62719, unreported. As to the petition for damages, this Court determined that appellant had: [F]ailed to meet his burden of demonstrating a clear legal duty on the part of the City to repair and maintain the sewer line in issue. As we have noted, the parties neither submitted stipulated facts nor did they notify this court that facts could not be stipulated as ordered. Consequently, we had an insufficient record before us regarding the location of the sewer line and obstruction with which to determine whether the City had a clear legal duty to effect repairs at all. Since relator has failed to establish liability, an award of damages and costs is hereby denied. State of Ohio ex rel. Berger v. City of Cleveland, supra, at p. 2. Appellant filed the present complaint on January 31, 1994 requesting damages of $83,000 for contractual breach, failure to timely repair, interference with his business and the use of his property, and deprivation of his use of the sewer without cause. Each of these claims stemmed from the same incident which was the subject of the first petition. Appellee filed a motion to dismiss - 3 - based upon res judicata. On July 14, 1994, the court granted appellee's motion and dismissed the action. The majority now asserts that the trial court improperly dismissed the present action because this Court lacked jurisdiction to review the damages issue after finding the initial matter of repair moot. I disagree. The issue of damages was properly brought before this Court pursuant to the petition for a writ of mandamus. It was not rendered moot by the City's decision to undertake repairs of the sewer line. The damage issue was not tied to the claim for repairs as a basis of jurisdiction as the majority implies when stating that "appellant could not litigate his claim for damages since the underlying action in mandamus was rendered moot by the city's actions in repairing the sewers." In order to establish a claim in mandamus, it must be proved that there exists a clear legal duty to act on the part of a public officer or agency, and that the relator has no plain and adequate remedy in the ordinary course of the law. State, ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, paragraph one of the syllabus. I find that a clear legal duty to pay appellant for the costs he incurred in repairing the sewer very well could have existed. In a similar petition for mandamus, the Ohio Supreme Court reversed this Court's dismissal for lack of jurisdiction and found that: The ministerial act of making payment of money due a public employee may be compelled by mandamus where the public employee has a clear legal right to payment of the compensation and the respondent public officer has a clear legal duty to perform the ministerial task of making such payment. - 4 - State, ex rel. Fenske v. McGovern (1984), 11 Ohio St.3d 129, at paragraph three of the syllabus. This Court had jurisdiction to entertain appellant's original petition for a writ of mandamus to compel the City to reimburse him for the costs he incurred in temporarily repairing the sewer line. This Court determined that appellant had failed to assert the proper facts in his petition to prove that the City was actually liable for the repairs and, consequently, appellant's costs. This decision was on the merits, rendering the action below barred under the principles of res judicata. I would affirm the trial court's dismissal of the present action. .