[Cite as Scott v. Dohse, 194 Ohio App.3d 364, 2011-Ohio-2190.]




                          IN THE COURT OF APPEALS OF OHIO
                             SECOND APPELLATE DISTRICT
                                MONTGOMERY COUNTY

SCOTT,                                           :
                                                 :        Appellate Case No. 24052
        Appellant,                               :
                                                 :        Trial Court Case No. 208-CVF-9762
v.                                               :
                                                 :
DOHSE et al.,                                    :        (Civil Appeal from Dayton
                                                 :        (Municipal Court)
        Appellees.                               :

                                             ...........

                                            OPINION

                               Rendered on the 6th day of May, 2011.

                                             ...........

               Boucher & Boucher Co., L.P.A., Richard A. Boucher,
        and Julia C. Kolber, for appellant.

                Craig T. Matthews & Associates, L.P.A., Craig T. Matthews,
        and J. Conrad Dillon, for appellees.

                                                        .............

        HALL, Judge.

        {¶ 1} Jerrilyn Scott appeals from the trial court’s journal entry dismissing her

complaint against appellees Kent Dohse and Paul Stewart for unpaid rent and other money

owed to her.

        {¶ 2} Dohse and Stewart rented commercial space from Scott and operated an

antique store. On December 4, 2008, Scott filed the present action in the small-claims division

of the Dayton Municipal Court, seeking to recover $3,000 for back rent, payment for items
                                                                                            2


sold on consignment, and a utility deposit. On January 2, 2009, Dohse and Stewart filed their

own complaint against Scott in Montgomery County Common Pleas Court, seeking a writ of

replevin for the return of their inventory and damages of $28,000. The complaint also included

claims for unlawful eviction, breach of contract, intentional interference with business

relations, and defamation. Dohse and Stewart requested damages of $250,000 on each of these

claims. In her answer to the complaint filed by Dohse and Stewart, Scott alleged that they

“would not pay rent” and “would not pay [her] for [her] property.”

       {¶ 3} On January 7, 2009, the Dayton Municipal Court transferred Scott’s lawsuit

from the small-claims division to the regular docket. On May 17, 2009, the common pleas

court granted Dohse and Stewart summary judgment on their claims for wrongful termination

of a lease and breach of contract. The common pleas court awarded Dohse and Stewart

damages of $13,307.55, including punitive damages of $4,435.85. The common pleas court

also awarded the two men attorney fees of $9,151.91.

       {¶ 4} On November 12, 2009, Dohse and Stewart moved to dismiss Scott’s

municipal court lawsuit on the basis of res judicata. A magistrate initially denied the motion.

The magistrate then reconsidered and granted the motion. Scott filed what the trial court

treated as objections to the magistrate’s decision. On April 19, 2010, the trial court overruled

the objections and dismissed Scott’s complaint. In support of its ruling, the trial court

reasoned: “The court agrees with the magistrate’s conclusion of law that plaintiff was required

to present her claim as either a counterclaim or a defense in [the common pleas court case].

Plaintiff is now barred from litigating the same issues in the present case and it was properly

dismissed.”

       {¶ 5} On appeal, Scott primarily argues that the dismissal of her complaint violated
                                                                                               3


Ohio’s jurisdictional-priority rule. She asserts that two cases were pending in two different

courts of concurrent jurisdiction involving the same parties and the same issues. Under these

circumstances, she insists that the jurisdictional-priority rule granted exclusive jurisdiction to

the Dayton Municipal Court because it acquired jurisdiction first. As a result, she reasons that

the Montgomery County Common Pleas Court lacked jurisdiction to proceed and, therefore,

that the municipal court erred in dismissing her complaint. Scott also briefly touches on the

concept of res judicata, asserting that she was not given an opportunity in the common pleas

court action “to fully litigate her issues.” In response to Scott’s arguments, Dohse and

Stewart assert that the jurisdictional-priority rule did not apply and that res judicata barred her

complaint for unpaid rent, payment for items sold on consignment, and a utility deposit. In

reply, Scott argues at length that res judicata did not apply and that she was not required to

raise her municipal court claims as counterclaims in the common pleas court action.

       {¶ 6} Upon review, we reject Scott’s first argument. The jurisdictional-priority rule

generally provides that “ ‘[a]s between 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. Judson v. Spahr (1987), 33 Ohio St.3d 111, 113, quoting State ex

rel. Phillips v. Polcar (1977), 50 Ohio St.2d 279. For the rule to apply, the parties and the

subject matter must be the same. Adams Robinson Ent. v. Envirologix Corp. (1996), 111 Ohio

App.3d 426, 429. Even if this requirement is met, the rule does not apply when “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.” Judson at 113, citing State ex rel. McHenry v.

Calhoun (1950), 87 Ohio App. 1; see also Duckworth v. Burger King Corp., 159 Ohio App.3d
                                                                                                          4


540, 548, 2005-Ohio-294, ¶15.

        {¶ 7} In the present case, Scott argues that (1) the Dayton Municipal Court and

Montgomery County Common Pleas Court have concurrent jurisdiction, (2) she first invoked

the municipal court’s jurisdiction, and (3) her municipal court case and the appellees’ common

pleas court case involved the same parties and issues. Even assuming that this is true, Scott

overlooks a dispositive fact—the Dayton Municipal Court’s powers were limited, and it could

not afford full relief to the parties.

        {¶ 8} Scott filed her action in the small-claims division of the Dayton Municipal

Court. The action remained pending there when Dohse and Stewart filed their lawsuit in

Montgomery County Common Pleas Court. The damages requested, and ultimately obtained,

by Dohse and Stewart in the common pleas court significantly exceeded the small-claims

division’s monetary jurisdiction of $3,000.1 R.C. 1925.02(A)(1). The small-claims division

also lacked jurisdiction over some of the claims filed by Dohse and Stewart. See R.C.

1925.02(A)(2)(a) (stating that a small-claims division lacks jurisdiction over actions for “libel,

slander, replevin, malicious prosecution, and abuse of process”). This court has recognized the

common-sense principle that no competing or conflicting jurisdiction exists when one of the

two courts involved lacks jurisdiction. Adams Robinson, 111 Ohio App.3d at 430. Moreover,

as noted above, the jurisdictional-priority rule has no applicability when “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.” Judson, 33 Ohio St.3d at 113. Thus, the

jurisdictional-priority rule did not give the small-claims division of the Dayton Municipal


          1
           The damages requested in the common pleas court case also exceeded the monetary jurisdiction of the
 regular division of the Dayton Municipal Court. R.C. 1901.17.
                                                                                            5


Court exclusive jurisdiction or preclude the lawsuit filed by Dohse and Stewart in the common

pleas court.

       {¶ 9} The remaining issue is whether the trial court erred in holding that (1) Scott

was required to present her claims for $3,000 in back rent, payment for items sold on

consignment, and a utility deposit as counterclaims or defenses in common pleas court and (2)

Scott was “barred from litigating the same issues in the present case” that were adjudicated in

the common pleas court.

       {¶ 10} Upon review, we conclude that both holdings are erroneous. The first holding

implies that the claims Scott raised in her small-claims complaint were compulsory

counterclaims in the common pleas court action. This is incorrect. Under Civ.R. 13(A), a

compulsory counterclaim generally includes “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.” We

do not dispute that Scott’s claims arose out of the same general transaction or occurrence as

the claims raised by Dohse and Stewart. In her lawsuit, Scott claimed that she had locked the

appellees out of their business because they owed her money for rent and other things. In their

lawsuit, Dohse and Stewart alleged that Scott had breached their lease agreement by engaging

in self-help repossession and locking them out.

       {¶ 11} Notably, however, Civ.R. 13(A) contains an exception. It provides that a claim

is not a compulsory counterclaim if “at the time the action was commenced the claim was the

subject of another pending action.” Here Scott’s claims for unpaid rent and other money were

the subject of a pending action in the small-claims division of the Dayton Municipal Court
                                                                                                              6


when Dohse and Stewart filed their lawsuit in Montgomery County Common Pleas Court.

Therefore, under Civ.R. 13(A), Scott’s claims were not compulsory counterclaims, and she

was not required to raise them in the common pleas court.2 Nor were Scott’s claims true

defenses to the allegations raised by Dohse and Stewart. Even if Dohse and Stewart did fail to

pay their rent and owe Scott other money, this would not have prevented the trial court from

entering the judgment it did, awarding the men damages for breach of contract based on

Scott’s unauthorized use of self-help repossession by locking them out of their business. At

most, Scott might have attempted to raise her claims for money due as counterclaims and

sought a setoff. Once again, however, under Civ.R. 13(A) she had no obligation to do so.

        {¶ 12} Finally, the trial court erred in holding that Scott was “barred from litigating

the same issues in the present case” that were adjudicated in common pleas court. The

problem with this holding is that the two cases did not involve the same issues.3 A thorough

review of the common pleas court’s ruling reveals that it never made any factual finding as to

whether Dohse and Stewart owed Scott money for back rent, items sold on consignment, or a

utility deposit. In its ruling, which was provided to the trial court below, the common pleas

court recognized Scott’s assertion that she was owed money but noted her failure to raise any

actual counterclaims or defenses in her answer. It then proceeded to find that she had engaged

in improper self-help to repossess her property. This determination neither explicitly nor

          2
           In fact, Civ.R. 13(B) suggests that Scott’s pending claims for unpaid rent were not even permissive
 counterclaims in the common pleas court action. Under Civ.R. 13(B), a permissive counterclaim is “any claim
 against an opposing party not arising out of the transaction or occurrence that is the subject of the opposing party’s
 claim.” Here, Scott’s claims for rent and other money due did arise out of the same transaction or occurrence as the
 claims raised by Dohse and Stewart. As explained above, the only reason her claims did not qualify as compulsory
 counterclaims was that they were already pending when Dohse and Stewart filed their lawsuit.
          3
           This conclusion is somewhat at odds with Scott’s argument regarding the jurisdictional-priority rule. In our
 analysis above, however, we rejected her jurisdictional-priority argument.
                                                                                            7


implicitly resolved the factual issue raised in Scott’s small-claims action, namely whether

Dohse and Stewart owed her money.

       {¶ 13} In the proceedings below, Dohse and Stewart insisted that it made no difference

whether the common pleas court actually had decided the factual issue presented by Scott’s

claims. It was enough, they asserted, that Scott could have litigated the issue in the common

pleas court. We disagree. The doctrine of res judicata encompasses two related concepts,

claim preclusion (or estoppel by judgment) and issue preclusion (or collateral estoppel). State

ex rel. Schachter v. Ohio Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-1704, ¶

27. “‘Claim preclusion prevents subsequent actions, by the same parties or their privies, based

upon any claim arising out of a transaction that was the subject matter of a previous action.’ *

* * The previous action is conclusive for all claims that were or that could have been litigated

in the first action.” Id., quoting O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59,

2007-Ohio-1102, 862 N.E.2d 803, ¶ 6.

       {¶ 14} On the other hand, issue preclusion “ ‘holds that a fact or a point that was

actually and directly at issue in a previous action, and was passed upon and determined by a

court of competent jurisdiction, may not be drawn into question in a subsequent action

between the same parties or their privies, whether the cause of action in the two actions be

identical or different.’ ” (Emphasis added.) State ex rel. Davis v. Pub. Emps. Retirement Bd.,

120 Ohio St.3d 386, 2008-Ohio-6254, ¶ 27, quoting Ft. Frye Teachers Assn., OEA/NEA v.

State Emp. Relations Bd. (1998), 81 Ohio St.3d 392, 395.

       {¶ 15} In the proceedings below, Dohse and Stewart specifically relied on the issue

preclusion branch of res judicata to argue that Scott’s small-claims action should be

dismissed. As set forth above, however, whether Dohse and Stewart owed Scott money was
                                                                                           8


not “actually and directly at issue” in the common pleas court case. Nor did the common pleas

court pass upon and determine that issue. The issue in the common pleas court was whether

Scott improperly had engaged in self-help repossession by locking Dohse and Stewart out of

their business, regardless of whether they owed her any money. Because the common pleas

court action involved a different issue, Scott’s small-claims complaint was not barred by issue

preclusion.

       {¶ 16} Based on the reasoning set forth above, we sustain Scott’s assignment of error,

in part. The judgment of the Dayton Municipal Court is reversed, and the cause is remanded

for further proceedings consistent with this opinion.

                                                                            Judgment reversed

                                                                          and cause remanded.

                                                   .............

       GRADY, P.J., and FROELICH, J., concur.

Copies mailed to:

Richard A. Boucher
Julia C. Kolber
Craig T. Matthews
J. Conrad Dillon
Hon. Carl Sims Henderson
