[Cite as Research Group, Inc. v. Akron Baptist Temple, Inc., 2018-Ohio-1919.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

THE RESEARCH GROUP, INC.                                   C.A. No.         28608

        Appellant

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
AKRON BAPTIST TEMPLE, INC.                                 COURT OF COMMON PLEAS
                                                           COUNTY OF SUMMIT, OHIO
        AppellAppellee                                     CASE No.   CV-2016-11-4991

                                 DECISION AND JOURNAL ENTRY

Dated: May 16, 2018



        CARR, Judge.

        {¶1}    Appellant, The Research Group, Inc., appeals the judgment of the Summit County

Court of Common Pleas. This Court reverses and remands.

                                                      I.

        {¶2}    This case stems from a dispute over mineral rights. On August 23, 2016, The

Research Group, Inc. (“Research Group”), and its president, Christopher Eiben, filed a complaint

in the Cuyahoga County Court of Common Pleas against the Akron Baptist Temple, Inc.

(“A.B.T.”), alleging claims of breach of contract, unjust enrichment, and promissory estoppel.

A.B.T. filed a motion for transfer of venue on the basis that all of the events giving rise to the

litigation occurred in Summit County. Research Group filed a brief in opposition to the motion.

A.B.T. filed a reply brief in support of its motion and Research Group filed a sur-reply brief.

Research Group successfully moved the trial court for leave to file an amended complaint. On

November 9, 2016, Research Group filed an amended complaint that contained the same causes
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of action and included additional allegations regarding the extent of the work Eiben performed

for A.B.T. at his office in Shaker Heights. Subsequently, on November 17, 2016, the Cuyahoga

County court issued an order granting A.B.T.’s motion and transferring the case to the Summit

County Court of Common Pleas.1

       {¶3}    On November 29, 2016, the case was assigned to a judge in the Summit County

Court of Common Pleas. A.B.T. filed a motion to dismiss the complaint pursuant to Civ.R.

12(B)(6). Research Group filed a brief in opposition to the motion and A.B.T. replied thereto.

       {¶4}    As the motion to dismiss was pending, Research Group filed a motion to refuse

the transfer of venue. Therein, Research Group reiterated its position that it had a right to file the

complaint in Cuyahoga County pursuant to Civ.R. 3(B)(6). A.B.T. filed a brief in opposition and

argued that the trial court did not have authority to simply reconsider an order issued in a

separate county.

       {¶5}    On March 16, 2017, the Summit County court issued an order denying the motion

to reconsider the transfer of venue. On that same day, the Summit County court issued a

separate order granting A.B.T.’s motion to dismiss the complaint.

       {¶6}    On appeal, Research Group raises two assignments of error.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT DENIED EIBEN’S MOTION TO
       RECONSIDER AND REFUSE TRANSFER OF VENUE WHEN EIBEN
       ALLEGED IN ITS AMENDED COMPLAINT, VARIOUS PLEADINGS[,]
       AND BY AFFIDAVIT THAT ALL OR PART OF THE CLAIM FOR RELIEF
       AROSE IN CUYAHOGA COUNTY AS PROVIDED UNDER OHIO CIV.R.
       3(B)(6)[.]

1
 We note that the November 17, 2016 order granting the motion to transfer did not contain any
analysis regarding whether venue was proper in Cuyahoga County, other than to say that the
“motion to transfer, filed 09/20/2016 is granted.”
                                                  3


        {¶7}    In its first assignment of error, Research Group argues that the trial court erred

when it denied the motion to refuse transfer of venue solely on the basis that venue was proper in

Summit County. This Court agrees.

        {¶8}    This Court reviews a trial court’s ruling on a motion for transfer of venue for an

abuse of discretion. Backyard Grill v. Anagnostopoulos, 9th Dist. Lorain No. 98CA007095,

1999 Ohio App. LEXIS 2976, *6 (June 23, 1999). An abuse of discretion is more than an error

of judgment; it means that the trial court was unreasonable, arbitrary or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

        {¶9}    As noted above, this matter was assigned to a judge in the Summit County Court

of Common Pleas on November 29, 2016. Shortly thereafter, Research Group filed a “motion to

reconsider and refuse transfer of venue” in Summit County. In its motion, Research Group

renewed the arguments set forth in the Cuyahoga County filings and maintained its underlying

positon that it had a right to litigate the case in Cuyahoga County under Civ.R. 3(B)(6).

Research Group argued that all or part of the action arose in Cuyahoga County because Eiben

performed extensive work for A.B.T. at his office in Shaker Heights. In response, A.B.T.

asserted that the trial court did not have authority to reconsider an order issued by a trial judge in

a different jurisdiction.

        {¶10} The Summit County court issued an order denying the motion to refuse transfer

of venue on March 16, 2017. While the court substantively considered the motion, it did not

analyze whether Cuyahoga County was a proper venue. Instead, the court noted that venue was

proper in Summit County for a number of reasons, namely that (1) A.B.T.’s principal place of

business is in Summit County; (2) A.B.T.’s conduct which gave rise to the dispute occurred in

Summit County; and (3) the matter involved a dispute over real property situated in Summit
                                                 4


County. Based on its determination that venue was proper in Summit County, the court

concluded that there was “no good cause to refuse transfer and no basis for the Court to

‘reconsider’ the decision * * * to transfer this case, as the Cuyahoga County Court of Common

Pleas has already given its final decision on the matter.”

       {¶11} The trial court abused its discretion when it limited its change-of-venue analysis

to whether venue was proper in Summit County. “[A]n order changing venue does not constitute

a final appealable order[.]” State ex rel. Dannaher v. Crawford, 78 Ohio St.3d 391, 395 (1997),

citing State ex rel. Lyons v. Zaleski, 75 Ohio St.3d 623, 625 (1996). Therefore, a common pleas

court is not precluded from “reconsidering an interlocutory change-of-venue order entered in the

same case by a different common pleas court judge[.]” Dannaher at 395. The Research Group

moved the Summit County court to refuse transfer of venue on the basis that part of the claim for

relief arose in Cuyahoga County and that it had a right to file the action in Cuyahoga County

pursuant to Civ.R. 3(B)(6). Significantly, under Civ.R. 3, a trial court should only transfer venue

when the original venue is improper. Hose v. Gatliff, 9th Dist. Summit No. 21957, 2004-Ohio-

4958, ¶ 10. “Under the Ohio Rules of Civil Procedure, the only basis for a transfer of venue

from a county where the venue is proper is when the transfer is necessary to obtain a fair trial.”

State ex rel. Starner v. De Hoff, 18 Ohio St.3d 163, 165 (1985). Accordingly, the foremost

question presented by the motion to refuse transfer of venue was whether venue was proper in

Cuyahoga County. The trial court abused its discretion when it denied the motion to refuse

transfer of venue based solely on its determination that venue was proper in Summit County.

This matter must be remanded for the trial court to consider Research Group’s argument that

venue was proper in Cuyahoga County under Civ.R. 3(B)(6). This Court takes no position with

respect to the merits of Research Group’s argument at this time.
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       {¶12} The first assignment of error is sustained.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED WHEN IT GRANTED ABT’s MOTION TO
       DISMISS AND FOUND THAT EIBEN, THOUGH UNLICENSED, SOUGHT
       COMPENSATION FOR ACTIVITIES PERFORMED THAT REQUIRED AN
       OHIO REAL ESTATE BROKER LICENSE[.]

       {¶13} In its second assignment of error, Research Group argues that the trial court erred

by granting A.B.T.’s motion to dismiss. Given our resolution of the first assignment of error, the

second assignment of error is not properly before this Court and we decline to address it at this

time. See App.R. 12(A)(1)(c).

                                                III.

       {¶14} Research Group’s first assignment of error is sustained. This Court declines to

reach the merits of the second assignment of error. The judgment of the Summit County Court

of Common Pleas is reversed and the cause remanded for further proceedings consistent with this

decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                6


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                    DONNA J. CARR
                                                    FOR THE COURT



SCHAFER, P.J.
TEODOSIO, J.
CONCUR

APPEARANCES:

ALAN H. KRAUS, Attorney at Law, for Appellant.

JOHN C. ROSS and NICHOLAS HORRIGAN, Attorneys at Law, for Appellee.

TIM TUSEK, Attorney at Law, for Appellee.
