COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72551 KATHY KLEIN, ET AL. : : : JOURNAL ENTRY PLAINTIFFS-APPELLANTS : : AND v. : : OPINION JOHN GLAS dba JOHN GLAS : ORNAMENTAL METALS : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, CV-315969. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Charles Gruenspan, Esq. Three Commerce Park Square Suite 900 23200 Chagrin Boulevard Beachwood, OH 44122-5422 For Defendant-Appellee: Ida L. MacDonald, Esq. 120 North Main Street Hudson, OH 44236 TIMOTHY E. McMONAGLE, J.: Plaintiffs-appellants Kathy Klein and Richard Klein appeal from the judgment of the Cuyahoga County Court of Common Pleas -2- which granted defendant-appellee John Glas' motion to dismiss their case against him. For the reasons stated below, we affirm in part and reverse in part. The facts giving rise to this appeal are as follows. On April 3, 1995, appellant Richard Klein filed a complaint in the Bedford Municipal Court Small Claims Division, styled 95CVI00997, against appellee Glas dba John Glas Ornamental Metals for damages incurred for substandard work. Appellee filed a counterclaim exceeding the monetary jurisdiction of the Small Claims Division and on May 11, 1995, the Bedford Municipal Court ordered the matter transferred to its regular docket. On September 27, 1996, during the pendency of the Bedford Municipal Court case, appellants jointly filed the within four-count complaint in Cuyahoga County Common Pleas Court. This complaint alleges that appellants entered into a contract with appellee for $7,000 worth of ornamental ironwork to be performed in their home in Moreland Hills, Ohio and asserts claims against appellee for: 1) breach of contract by Glas due to his incomplete and noncompliant work; 2) breach of implied warranty for Glas' failure to perform the work in a good and workmanlike manner; 3) negligence for Glas' failure to exercise reasonable care in construction; and, 4) Glas' violation of the Ohio Consumer Sales Practices Act, O.R.C. 1345 et seq. The complaint states on its face that these claims arise from the same facts and circumstances as contained in Bedford Municipal Court case no. 95CVI00997. Appellants' complaint included a prayer for: 1) damages in excess of $40,000; and, 2)statutory treble damages and attorneys fees for -3- violation of the Consumer Sale Practices Act. In response, appellee moved the court to dismiss this complaint claiming that with the exception of the original claim to recover damage for sub-standard work the claims are barred by the statute of limitations and, further, the Cuyahoga County Court of Common Pleas lacked jurisdiction over the matter. Appellants opposed the motion. On April 18, 1997, the trial court granted appellee's motion to dismiss the complaint finding that jurisdiction in the within matter rests in Bedford Municipal Court. Appellants timely appeal the dismissal of their complaint and advance a single assignment of error for our review. I. TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION TO DISMISS. In their sole assignment of error, appellants contend that the trial court erred in granting appellee's motion to dismiss their claims against him. Specifically, appellants assert that in resolving the motion to dismiss the trial court improperly considered evidentiary materials attached to the motion to dismiss and that, on its face, the subject complaint states justiciable claims sufficient to overcome the challenge of dismissal. Further, appellants argue that under the circumstances of this case, concurrent jurisdiction with the Bedford Municipal court does not exist because appellant Kathy Klein is not a party in the Bedford case and, moreover, the prayer for judgment in the matter sub judice exceeds the subject matter jurisdiction of the Bedford Municipal court. On the other hand, appellee submits that jurisdiction properly rests in the Bedford Municipal court. -4- Although appellants first argue that the court may not consider evidence outside the averments set forth in the complaint when reviewing a motion to dismiss a complaint for failure to state a claim pursuant to Civ.R. 12(B)(6), we note that a trial court may consider any pertinent evidentiary materials when determining its own jurisdiction under a Civ.R. 12(B)(1) motion and the court is not confined to the allegations of the complaint. Southgate Dev. Corp. v. Columbia Gas Transmission Corp. (1993), 48 Ohio St.2d 211. When deciding whether the court has jurisdiction, a distinction is drawn between an attack on the factual basis of the court's jurisdiction and an attack on the facial sufficiency of the complaint. Jenkins v. Eberhart (1991), 71 Ohio App.3d 351. The standard of review when a complaint is dismissed under Civ.R. 12(B)(1) is whether the plaintiff has alleged any cause of action cognizable in the forum. State ex rel Bush v. Spurlock (1989), 42 Ohio St.3d 77; City of Cleveland v. Cleveland Elec. Illuminating (1996), 115 Ohio App.3d 1. Appellants admit in their complaint that Bedford Municipal Court case no. 95CVI00997 arises from the same facts and circumstance as the matter sub judice. The record reveals that the dispute between appellant Richard Klein and appellee has been administered within the Bedford Municipal Court for three years. Pretrials have been held; appellant Richard Klein was granted leave to amend his complaint on December 14, 1995 (although he failed to do so); arbitration was held June 5, 1996 (wherein appellant did not merit an award on his complaint but appellee prevailed on his -5- counterclaim); then, an appeal de novo, (although requested outside the time limit pursuant to Local Rule of the Bedford Municipal Court), was granted to appellant Richard Klein; finally, the matter was set for trial before the Bedford Municipal Court. It is well established that the pendency of a prior action between the same parties and involving the same subject matter in another court of concurrent jurisdiction requires dismissal of the second lawsuit. Konicek et al. v. Elyria (1987), 37 Ohio App.3d 43; Devito, et al. v. University Hospitals et al. (February 20, 1992), Cuyahoga App. No. 62626, unreported. Conversely, if the second action does not concern the same subject matter, seek the same relief, or involve the same parties as the first action, then the second action must proceed. State ex rel Maxwell v. Schneider (1921), 103 Ohio St. 492, 134 N.E. 443. Konicek, supra, 44. The general rule for the resolution of a conflict between two courts over the same cause is that the tribunal whose power is invoked first acquires jurisdiction. State ex rel Phillips v. Polcar (1977), 50 Ohio St.2d 279 at the syllabus. The jurisdictional priority rule provides that `as 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 other 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 Ohio B.Rep. 45, 46, 476 N.E.2d 1060, 1062, quoting State ex rel Phillips v. Polcar (1977), 50 Ohio St.2d 279, 4 Ohio Op.3d 445, 364 N.E.2d 33, syllabus. 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.' Whitehall ex rel Wolfe v. Ohio Civ. Rights Comm. (1995), 74 Ohio St.3d 120, 123, 656 N.E.2d 684, 688 -6- quoting Stateex rel Sellers v. Gerken (1995), 72 Ohio St.3d 115, 117, 647 N.E.2d 807, 809. Therefore, if the second case does not involve the same cause of action or the same parties, the first suit will normally not prevent the second case. Id.; State ex rel Judson v Spahr (1987) 33 Ohio St.3d 111, 113, 515 N.E.2d 911, 913. State ex rel Red Head Brass, Inc. v. Holmes County Court of Common Pleas et al. (1997), 80 Ohio St.3d 149, 151. The Ohio Supreme court has held that as between courts of concurrent jurisdiction, the court whose power is first invoked by proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the parties. Knowlton Co. v. Knowlton (1992), 63 Ohio St.3d 677. Once a court acquires jurisdiction over a cause, its authority continues until the matter is completely and finally disposed of, and no court of coordinate jurisdiction is at liberty to interfere with its proceedings. John Weenick & Sons Co. v. Court of Common Pleas of Cuyahoga Cty. (1948), 150 Ohio St. 349; Huntington Mortgage Co. v. Shanker (1993), 92 Ohio App.3d 144. Appellant Richard Klein commenced his action in the Bedford Municipal Court and the power of the Bedford Court was first invoked by service upon appellee. Appellants argue that concurrent jurisdiction does not exist in this matter because in the later filed case in Cuyahoga County Common Pleas Court the parties are different and the prayer for relief exceeds the subject matter jurisdiction of the Bedford Municipal court. Appellants assert that appellant Kathy Klein was an indispensible party defendant to appellee's counterclaim and she was not properly joined. We find -7- these arguments to have no merit. First, appellant Richard Klein failed to timely assert the matter of joinder of Kathy Klein pursuant to Civ.R. 12(B)(7) and 19(A) and failure to do so is waiver. See, Civ.R. 12(G) and (H).1 Second, appellant Richard Klein failed to amend his complaint to request damages exceeding the monetary jurisdiction of the court. Therefore, we conclude upon a review of the record before us that the trial court did not err when it granted appellee's motion to dismiss the within action against Richard Klein and found that jurisdiction lies within the Bedford Municipal Court. Accordingly, jurisdiction as to the claims and counterclaims between Richard Klein and John Glas dba Glas Ornamental Metals remains in the Bedford Municipal Court. On the other hand, appellant Kathy Klein was never a party to the matter in Bedford Municipal Court. Appellant Kathy Klein's complaint was first brought in the Cuyahoga County Court of Common Pleas. Although appellants concede that there is identity of subject matter between the issues being litigated, the case filed in Cuyahoga County Common Pleas Court involves a different party plaintiff. Where the second case is not for the same cause of action or between the same parties then the former suit will not prevent the latter. Commercial Union Ins. Co. v. Wheeling Pittsburgh Corp., (1995), 106 Ohio App.3d 477. Furthermore, the 1Whether the Bedford court properly denied Richard Klein's motion to amend his complaint to add Kathy Klein and to amend his prayer for relief is a matter which may be taken on appeal from a judgment when rendered in the Bedford Municipal Court case. Those issues are not before us here. -8- rule does not apply where the conflict of jurisdiction is between a court of general jurisdiction and one whose limited powers are inadequate to afford full relief to the parties. State ex rel. McHenry v. Calhoun (1950), 87 Ohio App.1, 93 N.E. 2d 317." State ex rel Judson v. Spahr (1987), 33 Ohio St.3d 111, 113. Consequently, appellee's motion to dismiss the complaint of Kathy Klein against him will not lie for failure of jurisdiction pursuant to Civ.R. 12(B)(1). We, therefore, review appellee's motion to dismiss as to the claims of appellant Kathy Klein pursuant to Civ.R. 12(B)(6) to determine whether the trial court erred in granting the motion. In ruling on a motion pursuant to Civ.R. 12(B)(6), a court must, as a matter of law, accept all the allegations in the complaint as true. Perez v. Cleveland (1993), 66 Ohio St. 3d 397. To grant such a motion, it must appear beyond a reasonable doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228. A motion to dismiss based upon the bar of the statute of limitations should be granted only where the complaint conclusively shows on its face that the action is barred by the statute of limitations. Velotta v. Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376. A review of the pleadings in this case reveals that appellant Kathy Klein's complaint is not on its face barred by the statute of limitations. Her complaint states claims for breach of contract, breach of implied warranty, negligence and violation of the Ohio Consumer Sales Practices Act, R.C. 1345.01. Each of these claims -9- is cognizable under Ohio law and the allegations of the complaint, if accepted as true, could entitle appellant Kathy Klein to recovery. Therefore, we find appellant Kathy Klein's complaint sufficient to withstand a challenge of dismissal pursuant to Civ.R. 12(B)(6) and find that the trial court erred in granting appellee's motion to dismiss the complaint of appellant Kathy Klein against him. Accordingly, the dismissal of the complaint by appellant Richard Klein brought in Cuyahoga County Court of Common Pleas is affirmed, as the trial court properly found jurisdiction lies in the Bedford Municipal Court as to his claims against appellee. However, the trial court's dismissal of appellant Kathy Klein's complaint was in error and is, therefore, reversed and remanded for further proceedings. -10- This cause is affirmed in part, reversed in part and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellants and said appellee equally share the 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. ANN DYKE, P.J. and JAMES D. SWEENEY, J., CONCUR. TIMOTHY E. McMONAGLE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .