COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO.71448 SOCIETY NATIONAL BANK : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION EDWARD L. WILLIAMS : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 9, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-296140. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Donald A. Mausar, Esq. Robert B. Weltman, Esq. Weltman, Weinberg & Reis Co., L.P.A. Lakeside Place, Suite 200 323 Lakeside Avenue, West Cleveland, Ohio 44113 For Defendant-appellant: Uche Mgbaraho, Esq. 1677 East 40th Street Cleveland, Ohio 44103 Edward L. Williams, pro se 1373 Black Pond Drive Akron, Ohio 44320 2 SWEENEY, JAMES D., C.J.: Defendant-appellant Edward L. Williams appeals from the trial court's decision granting the motion for summary judgment filed by plaintiff-appellee Society National Bank. The appellee filed this action against the appellant seeking to recover the amount due on: 1) a promissory note executed on September 25, 1992 for the sum of $4,200.00; 2) a promissory note executed on September 24, 1990 for the sum of $10,000.00; and, 3) an outstanding balance on one credit card in the amount of $1,502.76. The appellant signed a personal guarantee for the note executed September 25, 1992. The appellant represented himself pro se throughout the proceedings in the trial court. Subsequent to the filing of the complaint, the appellant filed an answer which disputed the amount of the debt, disputed that he was the party responsible for the debt, and disputed the jurisdiction of the court. After a pre-trial, the appellant filed a motion for dismissal for lack of jurisdiction and improper venue. As the basis of this motion, the appellant asserted that the notes were entered into in the City of Akron. He pointed out to the court that although the City of Akron is a 50% guarantor on the 1990 note; that the appellee failed to name the City of Akron as a party; and that the U.S. Small Business Administration was a 90% guarantor on the other note and was not named as a party. The appellant alleges that he was relieved of personal responsibility by the incorporation of his business in 1995. He also asserted that the appellee maliciously and willfully filed this action in 3 the wrong court and chose not to include necessary parties. In its brief in opposition, the appellee asserts that the lines of credit were approved at its offices in Cleveland; that the 1992 note states Cleveland, Ohio, in the top right corner; that the 1990 note makes reference to payment to the appellee in Cleveland; and that the MasterCard account charges were incurred and processed by the appellee in Cleveland. Based upon these facts, the appellee asserts that pursuant to Civ.R. 3(B), it was permitted to file the action in the Cuyahoga County Court of Common Pleas. The appellant filed a counterclaim pursuant to Civ.R. 13(C) seeking damages for appellee's willful actions. The docket reflects that the trial court denied the appellant's motion to dismiss. The appellee filed its motion for summary judgment attaching as evidence the affidavit of Ms. Jan Matuszak, the person in possession of the books and record pertaining to the balances due on the appellant's obligations. In his brief in opposition to the motion for summary judgment, the appellant reasserted that the court should have granted his motion to dismiss; that the court lacked jurisdiction; that all of the notes were signed in Akron; that the case should be transferred to the proper county; and that neither the U.S. Small Business Administration nor the City of Akron had been added as parties. The appellant attached as evidence a certificate from the Secretary of State Bob Taft indicating that his business incorporated on February 24, 1992. The trial court granted the appellee's motion for summary 4 judgment and entered judgment for the appellee on its claim. The court subsequently granted the appellee's motion to dismiss the counterclaim, thus rendering the judgment final. The appellant sets forth two assignments of error. This court will first consider the second assignment of error. THE TRIAL COURT ERRED BY FAILING TO DISMISS OR TRANSFER THE CASE TO THE SUMMIT COUNTY COURT OF COMMON PLEAS WHICH WAS THE PROPER VENUE. The appellant argues that pursuant to Civ.R. 3(B) the proper venue for this action was in Summit County and that the trial court should have either dismissed the action or transferred it to Summit County. The appellant states that his personal and business addresses are both in Akron; that the notes in question were both signed in Akron; and that the appellee has branches all over Ohio and allows payment at any branch. The appellee argues that the case is properly venued in Cuyahoga County. Civ.R. 3 governs matters of venue, and Civ.R. 3 (B) sets forth the rules by which proper venue is established. Civ.R. 3(B) states in pertinent part: Any action may be venued, commenced, and decided in any court in any county. *** Proper venue lies in any one or more of the following courts: (1) The county in which the defendant resides; (2) The county in which the defendant has his principal place of business; (3) A county in which the defendant conducted activity that gave rise to the claim for relief **** (6) The county in which all or part of the claim for relief arose; ***; **** (10) If there is no available forum in divisions (B)(1) to (B)(9) of this rule, in the county in which plaintiff resides, has his principal 5 place of business, or regularly and systematically conducts business activity; The Supreme Court has held that subject-matter jurisdiction of a court connotes the power to hear and decide a case upon its merits; venue connotes the locality where the suit should be heard. Morrison v. Steiner (1972), 32 Ohio St.2d 86, syllabus 1. When determining its own jurisdiction, a trial court has the authority to consider any pertinent evidentiary materials. See Nemazee v. Mt. Sinai Medical Ctr. (1990), 56 Ohio St.3d 109, fn. 3. Civ.R. 3(C)(1)empowers the trial court to transfer an action commenced in a county where venue is improper to a county where venue is proper upon a timely filed motion by the defendant pursuant to Civ. R. 12(B). Morton Int'l. Inc. v. Harbor Ins. Co. (1992), 79 Ohio App.3d 183. The first nine provisions of Civ.R. 3(B) are on an equal status, and any court specified therein may be a proper and initial place of venue. Morrison, supra, at 89. This court finds instructive Grange Mut. Cas. Co. v. Thompson (1990), 61 Ohio App.3d 190, where the Tenth District Court of Appeals wrestled with similar issues as are before this court in the case sub judice. The court determined that venue was not proper in the district in which plaintiff-insurance company Grange Mutual conducted its business. Essentially, Grange argued that because it maintained its records and supervised its claims in Columbus, that Franklin County was the proper venue. The court found that these facts spoke to the activity of the plaintiff, not the defendant and that Franklin County was not the place where the 6 claim for relief arose. Here, the appellee Society National Bank asserts the same basic arguments: that the site of the signing of the documents is determinative; that the payments were due in Cleveland; and that the records and accounts are kept in Cleveland. Like the Tenth District, this court does not find the place of the plaintiff's record keeping to be relevant. In this case, while the 1992 note indicates that payment is due in Cleveland, the note also states that another place may be designated by the holder. There was no evidence before the trial court as to whether or not the appellee accepted payments at another location. Cf. Lorenz Equipment Co. v. Ultra Builders, Inc. (Feb. 23, 1993), Franklin App. No. 92AP- 1445, unreported, where the court found when payments are due on a contract, an action may be venued at the place the payments are due. In the case sub judice, unlike Grange Mut., supra, the trial court here had insufficient evidence before it upon which to base its determination of venue. The evidence in the record before the trial court at the time of the ruling on the motion to dismiss consisted only of the two promissory notes and copies of MasterCard bills issued to the appellant. The documentation supporting the September 25, 1992 note has the words Cleveland, Ohio, printed in the upper right corner of the document. While the appellee argues that this indicates the place of signing, this court finds that an equal presumption may be made that this language merely indicates the place the document was prepared. The record shows that the 7 personal guarantee to this note lacks any indication of place of signature, or any other indication of any activity of the appellant in Cuyahoga County. The September 24, 1990 note states in the body of the contract that the note was signed in Akron, Ohio. No other indication is given of any activity by the appellant in Cuyahoga County. As to the MasterCard debt, once again there is no evidence of any contact by the appellant with Cuyahoga County. Given the dearth of conclusive evidence indicating that any activity was conducted by the appellant in Cuyahoga County, this court finds that the trial court erred in denying the appellant's motion to dismiss. The trial court is instructed to revisit this issue and prior to making any determination must offer the parties an opportunity to submit evidence either in the form of clarified documents, and/or affidavits, or through testimony. The appellant's assignment of error must be well taken, and this action is remanded to the trial court for a determination, based upon evidence, as to the proper venue. The appellant's first assignment of error: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR APPELLEE WHERE THERE ARE GENUINE ISSUES OF FACT TO BE LITIGATED. Based upon this court's determination of the second assignment of error, the first assignment of error is moot pursuant to App.R. 12. Judgment reversed and remanded to the trial court. 8 9 This cause is reversed and remanded. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. DAVID T. MATIA, J., and LEO M. SPELLACY, J., CONCUR. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized 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 announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .