COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68149 ALBERT C. NOZIK : ACCELERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION JEROME M. ELLERIN, etc., et al : : Defendant-appellees : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 22, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 272,390 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: ALBERT C. NOZIK, pro se Attorney at Law 7833 Lake Shore Boulevard Mentor-on-the-Lake, OH 44060 For defendant-appellees: MICHAEL A. SANSON Attorney at Law 1640 Standard Building Cleveland, Ohio 44113-1746 PER CURIAM: Appellant, Albert Nozik, appeals from the decision of the trial court dismissing this case. At all times relevant to the subject matter of this suit, shares of a corporation titled Mentor Lagoons, Inc. were held by appellant and his late ex-wife, Sara B. Nozik. Appellant commenced this suit on June 15, 1994 alleging breach of fiduciary duty, and breach of contract on the part of Sara and Erroll Nozik. Named in this suit are appellees Jerome Ellerin, Esq., who held power of attorney for Sara Nozik, and Erroll Nozik, individually and as Executor of Sara Nozik's estate. On July 25, 1994, appellees moved to dismiss this suit for lack of subject matter jurisdiction because an identical suit had been dismissed by the trial court on December 27, 1993 and because two similar actions, one to dissolve Mentor Lagoons, Inc. in 1990 and one for mismanagement of the corporation in 1992, had been filed in the Lake County Common Pleas Court. The trial court granted this motion to dismiss on October 27, 1994. Appellant now appeals, raising one assignment of error. - 3 - I THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF- APPELLANT IN DISMISSING THE COMPLAINT WITH PREJUDICE FOR LACK OF SUBSTANTIVE JURISDICTION. Appellant argues that jurisdiction is proper in the Cuyahoga County Court of Common Pleas while appellees contend that the Cuyahoga County court cannot exercise jurisdiction because the Lake County Court of Common Pleas first exercised jurisdiction over the subject of this case. The issue then for our review is whether the trial court properly dismissed this case for lack of jurisdiction. It is a long-standing proposition of Ohio law that: As between courts of concurrent jurisdiction, the tribunal whose power is first invoked by the insti- tution of proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudi- cate upon the whole issue and to settle the rights of the parties. See Knowlton Co. v. Knowlton (1992), 63 Ohio St.3d 677; State, ex rel. Phillips v. Polcar (1977), 50 Ohio St.2d 279; Weenink v. Court (1948), 150 Ohio St. 349. Further, under Civ. R. 13(A), all claims arising out of one transaction must be brought in one suit. Civ. R. 13(A) reads in pertinent part: * * * A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. * * *. - 4 - In the first case brought between these parties, Lake County Common Pleas Court No. 90 CV 000633, Sara and Erroll Nozik sued Mentor Lagoons, Inc., Albert Nozik and Eleanore McDonald for dissolution of Mentor Lagoons and for equitable relief. A second suit, alleging mismanagement of Mentor Lagoons, titled Mentor Lagoons, Inc. v. Jerome Ellerin , Sara Nozik and Erroll Nozik, was filed in 1992 in Lake County. In that suit, appellant was named third-party defendant and asserted as a defense that Ellerin and the Noziks breached their fiduciary duties as officers of Mentor Lagoons. Under the priority doctrine set forth in Knowlton and Polcar, supra, the Lake County Court of Common Pleas established jurisdiction over issues of the mismanagement and dissolution of Mentor Lagoons, Inc., thereby depriving the Cuyahoga County Court of Common Pleas from exercising jurisdiction. Further, under Civ. R. 13(A) all of appellant's claims arising out of this transaction must be brought in one suit. In this case the defendants are Ellerin and Errol Nozik, both of whom were parties to the Lake county litigation. Therefore, jurisdiction over these claims properly lies in the Lake County Court of Common Pleas and not in Cuyahoga County. On this basis we conclude that the trial court properly dismissed this case. Appellant's sole assignment of error is overruled. Judgment affirmed. - 5 - - 6 - It is ordered that appellees recover of appellant their 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, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE TERRENCE O'DONNELL, JUDGE 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. .