[Cite as Priconics, L.L.C. v. Amperor, Inc., 2018-Ohio-551.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




PRICONICS, LLC,                                          :

        Plaintiff-Appellant,                             :     CASE NO. CA2017-07-099

                                                         :          OPINION
    - vs -                                                           2/12/2018
                                                         :

AMPEROR, INC.,                                           :

        Defendant-Appellee.                              :



         CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             Case No. 17CV89588



W. Evan Price II, P.O. Box 20244, Columbus, Ohio 43220-0244, for plaintiff-appellant

Bricker & Eckler LLP, Jeffrey P. McSherry, Pramila A. Kamath, 201 East Fifth Street, Suite
1110, Cincinnati, Ohio 45202, for defendant-appellee



        RINGLAND, J.

        {¶ 1} Plaintiff-appellant, Priconics, LLC, appeals the decision of the Warren County

Court of Common Pleas granting a motion to dismiss in favor of defendant-appellee,

Amperor, Inc. For the reasons detailed below, we reverse the decision of the trial court and

remand this matter for further proceedings.

        {¶ 2} Amperor is a Texas corporation, specializing in the manufacture of electronic

parts and equipment. Priconics is an Ohio limited liability company that acts as a sales
                                                                        Warren CA2017-07-099

representative by selling principal products. In February 2015, Amperor and Priconics

entered into a sales representative agreement ("Contract") where Priconics agreed to act as

a sales representative for Amperor and its products in Ohio, western Pennsylvania, and West

Virginia.

       {¶ 3} The Contract provided that Priconics was to receive its commission based upon

its procurement of purchase orders. A dispute arose between the parties as to whether

Priconics was entitled to commissions from one of Amperor's pre-existing clients.

       {¶ 4} On February 14, 2017, Amperor filed a declaratory judgment action in Harris

County, Texas. In the Texas litigation, Amperor sought a declaratory judgment that: (1)

Priconics was not entitled to commissions from purchase orders received from pre-existing

customers, and (2) Priconics has been paid all commissions currently due and owing under

the terms of the contract.

       {¶ 5} On March 7, 2014, Priconics filed the instant action against Amperor in Warren

County, Ohio. The Ohio litigation filed by Priconics alleged that Amperor violated R.C.

1335.11 by failing to pay commissions owed to Priconics and that Amperor had breached the

terms of the Contract by failing to pay all commissions.

       {¶ 6} On April 26, 2017, Amperor moved to dismiss the Ohio litigation under Civ.R.

12(B)(1) for lack of subject matter jurisdiction based on the jurisdictional-priority rule.

Amperor claims that the Texas litigation and the Ohio litigation involve the same parties and

seek to resolve the same issues. Therefore, because the Texas action was filed first,

Amperor argues that jurisdiction is properly in Texas and the lawsuit in Ohio should be

dismissed. The trial court agreed with Amperor and dismissed the Ohio litigation on the basis

of the jurisdiction-priority rule. Priconics now appeals the decision of the trial court, raising a

single assignment of error for review:

       {¶ 7} THE TRIAL COURT ERRED BY DISMISSING THE COMPLAINT UNDER THE
                                                -2-
                                                                         Warren CA2017-07-099

JURISDICTIONAL-PRIORITY RULE BASED ON THE CONCLUSION THAT BOTH CASES

INVOLVED THE SAME PARTIES BEFORE IT WAS DETERMINED THAT THE TEXAS

COURT HAD PERSONAL JURISDICTION OVER PRICONICS.

       {¶ 8} In its sole assignment of error, Priconics argues that the trial court erred by

dismissing its complaint based on the jurisdictional-priority rule. We agree.

       {¶ 9} "The jurisdictional-priority rule provides that as between state courts of

concurrent jurisdiction, the tribunal whose power is first invoked acquires exclusive

jurisdiction to adjudicate the whole issue and settle the rights of the parties." Triton Servs.,

Inc. v. Reed, 12th Dist. Warren Nos. CA2016-04-028 and CA2016-08-068, 2016-Ohio-7838,

¶ 8. Generally, "it is a condition of the jurisdictional-priority rule that the claims and parties be

the same in both cases, so '[i]f the second case is not for the same cause of action, nor

between the same parties, the former suit will not prevent the latter.'" State ex rel. Dunlap v.

Sarko, 135 Ohio St.3d 171, 2013-Ohio-67, ¶ 10. However, the rule can apply even when the

causes of action, relief requested, and the parties are not exactly the same so long as the

actions are part of the same "whole issue." Id. at ¶ 11.

       {¶ 10} The jurisdictional-priority rule, however, does not apply to courts in other

states. Mouded v. Khoury, 8th Dist. Cuyahoga No. 105656, 2018-Ohio-284, ¶ 10, citing

Developers Diversified Realty v. Coventry Real Estate Fund II, L.L.C., 8th Dist. Cuyahoga

No. 97231, 2012-Ohio-1056, ¶ 30. Long v. Grill, 155 Ohio App.3d 135, 2003-Ohio-5665, ¶

27 (10th Dist.) ("The 'rule of priority of jurisdiction' applies to actions pending in different Ohio

courts that have concurrent jurisdiction; it does not apply when an action is pending in

another state").

       {¶ 11} "A court faced with the situation of a prior case pending in another state now

has three options: (1) it can grant a stay in the Ohio proceedings pending the resolution of

the earlier action outside of Ohio, (2) it can go forward with the action in Ohio, or (3) it can
                                                 -3-
                                                                      Warren CA2017-07-099

dismiss the case under the doctrine of forum non conveniens." In re Estate of Rush, 12th

Dist. Warren No. CA2013-10-103, 2014-Ohio-3293, ¶ 34; Calvary Industries v. Coral Chem.

Co., 12th Dist. Butler No. CA2016-12-233, 2017-Ohio-7279, ¶ 17.

       {¶ 12} In the present case, the trial court dismissed for lack of subject matter

jurisdiction based on the jurisdictional-priority rule.     However, as noted above, the

jurisdictional-priority rule does not apply to actions pending in another state. Mouded at ¶ 10.

As previously noted, the action is pending in Texas and was initiated prior to the filing of the

complaint in this action. Therefore, we find the trial court erred by dismissing this action

based on the jurisdictional-priority rule. On remand, the trial court has three options: "(1) it

can grant a stay in the Ohio proceedings pending the resolution of the earlier action outside

of Ohio, (2) it can go forward with the action in Ohio, or (3) it can dismiss the case under the

doctrine of forum non conveniens." In re Estate of Rush at ¶ 34.

       {¶ 13} Judgment reversed and remanded for further proceedings.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




                                              -4-
