COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 86521 IN RE: MICHAEL J. O'SHEA : ORIGINAL ACTION : : JOURNAL ENTRY Relator : AND : OPINION vs. : : RAYMOND PIANKA, CLEVELAND : MUNICIPAL JUDGE : : Respondent : DATE OF JOURNALIZATION: JUNE 23, 2005 CHARACTER OF PROCEEDINGS: WRIT OF PROHIBITION AND MANDAMUS JUDGMENT: DISMISSED. Order No. 372953. APPEARANCES: For Relator: MATTHEW C. HUDSON Goldberg & O'Shea Co., L.P.A. 450 Lakeside Place 323 Lakeside Avenue Cleveland, Ohio 44113 For Respondent: TERESA M. BEASLEY Director of Law City of Cleveland Law Dept. 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44114 -2- JUDGE ANTHONY O. CALABRESE, JR.: On June 10, 2005, the relator, Michael O'Shea, commenced this prohibition and mandamus action against the respondent, Judge Raymond Pianka of the Housing Division of Cleveland Municipal Court. O'Shea maintains that under the priority of jurisdiction rule Judge Pianka is without jurisdiction to hear the second cause of action, the claim for back rent, in Lakeside Place LLC v. 450 Lakeside Place, Inc, et al., Cleveland Municipal Court Case No. 2005 CVG 10717. Instead, this court should issue a writ of mandamus to compel Judge Pianka to transfer the second cause of action to the Cuyahoga County Common Pleas Court, which first acquired jurisdiction over the matter in O'Shea v. Lakeside Place LLC, et al., Case No. CV. 561193. For the following reasons this court dismisses the instant complaint, sua sponte. The underlying cases concern a landlord-tenant dispute over the amount of rent. The landlord (Lakeside Place LLC) leased office space at 323 Lakeside Avenue West to 450 Lakeside Place, Inc.1 The lease provides that the tenant shall pay as part of the rent certain pass-through amounts, e.g., the tenant's proportional share of utilities, certain taxes, and operating expenses. The lease also provides that the landlord would provide the tenant with statements showing the actual pass-through amounts and that the 1 Michael O'Shea, Kevein Roberts, David Hildebrandt, and Michael Goldberg are members of 450 Lakeside Place, Inc., and use the space for the practice of law. -3- four members of the tenant are personal guarantors of the amount owed the landlord. The landlord claims that the tenant, and thus the members, are indebted to it for pass-through amounts. O'Shea claims that the pass-through amounts are undocumented and unsubstantiated and that he is not liable for those amounts until a proper accounting is tendered. Moreover, he maintains that despite requests, the landlord has refused to provide a proper accounting. Accordingly, April 22, 2005, O'Shea brought the common pleas action in which he seeks an accounting of the pass-through amounts, a declaratory judgment finding that the landlord has breached the contract and nullifying his guaranty, and an injunction preventing the landlord from disturbing his tenancy. On April 29, 2005, the landlord responded by filing the municipal court action seeking eviction and damages for alleged unpaid pass-through rent. The jurisdictional priority rule provides that "as between courts of concurrent jurisdiction, the one 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." The John Weenink & Sons Co. v. Court of Common Pleas of Cuyahoga County (1948), 150 Ohio St. 349, 82 N.E.2d 730, paragraph two of the syllabus; State ex rel. Dannaher v. Crawford, 78 Ohio St.3d 391, 1997-Ohio-72, 678 N.E.2d 549; and State ex rel. Shimko -4- v. McMonagle, 92 Ohio St.3d 426, 2001-Ohio-301, 751 N.E.2d 472. Generally, the jurisdictional priority rule applies when the causes of action are the same in both cases, and if the first case does not involve the same cause of action or the same parties as the second case, the first case will not prevent the second. Shimko and Crawford. O'Shea argues that because his common pleas action was filed first and concerns the same subject matter, the amount of rent due, the jurisdictional priority rule applies and renders Judge Pianka without jurisdiction to adjudicate that second cause of action. 2 Thus, this court should issue a writ of prohibition to prevent this unauthorized exercise of judicial power. The principles governing prohibition are well established. Its requisites are (1) the respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is no adequate remedy at law. State ex rel. Largent v. Fisher (1989), 43 Ohio St.3d 160, 540 N.E.2d 239. Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause which it is attempting to adjudicate or the court is about to exceed its 2O'Shea concedes that Judge Pianka has exclusive jurisdiction over the eviction claim pursuant to R.C. 1901.181 and R.C. 1923.01(A). The court also notes that O 'Shea presented the jurisdictional priority rule argument to Judge Pianka pursuant to a motion to dismiss. The judge rejected the argument and set both causes of action for trial on June 27, 2005. -5- jurisdiction. State ex rel. Ellis v. McCabe (1941), 138 Ohio St. 417, 35 N.E.2d 571, paragraph three of the syllabus. "The writ will not issue to prevent an erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction." State ex rel. Sparto v. Juvenile Court of Darke County (1950), 153 Ohio St. 64, 65, 90 N.E.2d 598. Furthermore, it should be used with great caution and not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas (1940), 137 Ohio St. 273, 28 N.E.2d 273; Reiss v. Columbus Municipal Court (App. 1956), 76 Ohio Law Abs. 141, 145 N.E.2d 447. Nevertheless, when a court is patently and unambiguously without jurisdiction to act whatsoever, the availability or adequacy of a remedy is immaterial to the issuance of a writ of prohibition. State ex rel. Tilford v. Crush (1988), 39 Ohio St.3d 174, 529 N.E.2d 1245 and State ex rel. Csank v. Jaffe (1995), 107 Ohio App.3d 387, 668 N.E.2d 996. However, absent such a patent and unambiguous lack of jurisdiction, a court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction. A party challenging the court's jurisdiction has an adequate remedy at law via appeal from the court's holding that it has jurisdiction. State ex rel. Rootstown Local School District Board of Education v. Portage County Court of Common Pleas (1997), 78 Ohio St.3d 489, 678 N.E.2d 1365 and State ex rel. Bradford v. Trumbull County Court, 64 Ohio -6- St.3d 502, 1992-Ohio-116, 597 N.E.2d 116. Moreover, the court has discretion in issuing the writ of prohibition. State ex rel. Gilligan v. Hoddinott (1973), 36 Ohio St.2d 127, 304 N.E.2d 382. Thus, the issue is whether Judge Pianka is patently and unambiguously without jurisdiction to adjudicate the second cause of action. This court rules that Judge Pianka is not patently and unambiguously without jurisdiction because of the peculiarities of the jurisdiction conferred on the Housing Division of Cleveland Municipal Court. In State ex rel. J.K. & E. Auto Wrecking v. Trumbo, 64 Ohio St.3d 73, 1991-Ohio-59, 591 N.E.2d 1238, the petitioner sought a writ of prohibition against Judge Trumbo for exceeding his jurisdiction when a landlord filed suit in the Housing Division for eviction, back rent and disposal of tires; the landlord also filed a complaint with Judge Trumbo in the General Division of Municipal Court for the disposal of tires and associated expenses. The Supreme Court of Ohio upheld the issuance of the writ of prohibition because the Housing Division has exclusive jurisdiction over forcible entry and detainer actions and as a corollary has full power to render a complete determination of the rights of the parties. The Supreme Court reasoned that R.C. 1901.011 created a housing division in the Cleveland Municipal Court and that R.C. 1901.181 grants the housing division exclusive jurisdiction in any civil action commenced pursuant to Chapter 1923. R.C. 1923.01(A) grants jurisdiction for forcible entry and -7- detainer actions, and R.C. 1923.081 permits a forcible entry and detainer action to include claims for past due rent and other damages under a rental agreement. Finally, R.C. 1901.131 provides that if an action is properly before the housing division, it "has jurisdiction to determine, preserve, and enforce all rights involved in the action or proceeding, to hear and determine all legal and equitable remedies necessary or proper for a complete determination of the rights of the parties ***." The Supreme Court concluded from these statutes that the Housing Division "has exclusive jurisdiction over the dispute between the parties and the claims arising from it." 64 Ohio St.3d at 76. Similarly, in City of Cleveland v. A.J. Rose Manufacturing Company (1993), 89 Ohio App.3d 267, 624 N.E.2d 245, this court upheld the exclusive jurisdiction of the Housing Division over forcible entry and detainer actions against the appellants ' jurisdictional priority argument. See also,State ex rel. Charron- Krofta v. Corrigan (Oct. 12, 1995), Cuyahoga App. No. 69434. In summary, the Ohio Revised Code grants the Housing Division of Municipal Court exclusive jurisdiction over forcible entry and detainer actions and as a corollary also vests the Housing Division with jurisdiction to determine damage claims arising from the tenancy, including back rent. Therefore, this court cannot conclude that Judge Pianka is patently and unambiguously without jurisdiction. The statutes and the common law decisions at the -8- very least create a doubt as to whether the peculiar jurisdiction of the Housing Division "trumps"the jurisdictional priority rule. Thus, Judge Pianka has sufficient jurisdiction to determine his own jurisdiction, and O'Shea has a remedy by way of appeal, if necessary. The claim for mandamus is rendered moot. Accordingly, this court dismisses the complaint for writs of prohibition and mandamus. Petitioner to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B). ANTHONY O. CALABRESE, JR. JUDGE JAMES J. SWEENEY, P.J., CONCURS DIANE KARPINSKI, J., CONCURS .