[Cite as Basinger v. York, 2012-Ohio-2017.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      MEIGS COUNTY


Joel M. Basinger,                                  :
                                                   :
             Plaintiff-Appellee,                   :         Case No: 11CA2
                                                   :
             v.                                    :
                                                   :         DECISION AND
Gary York,                                         :         JUDGMENT ENTRY
                                                   :
             Defendant-Appellant.                  :         Filed: May 2, 2012



                                              APPEARANCES:

Gary York, Shade, Ohio, pro se, Appellant.

Joel M. Basinger, Shade, Ohio, pro se, Appellee.1


Kline, J.:

         {¶1} Gary York (hereinafter “York”) appeals the judgment of the Meigs County

Court, Small Claims Division, which awarded Joel M. Basinger (hereinafter “Basinger”)

a civil judgment of $509.99. On appeal, York raises various arguments about the

proceedings below. We will not, however, address these arguments. Instead, we find

that the trial court lacked subject matter jurisdiction over this action. Accordingly, we

vacate the trial court’s judgment and instruct the trial court to dismiss this entire case

pursuant to Civ.R. 12(H)(3).

                                                   I.




1
    Basinger did not participate in this appeal.
Meigs App. No. 11CA2                                                                2


       {¶2} Basinger used to live on York’s property, and the two of them had some

type of business arrangement. After being evicted from York’s property, Basinger filed

a complaint against York in the Meigs County Court, Small Claims Division. York then

filed a counterclaim against Basinger. In relevant part, York’s counterclaim states that

“Defendant would like returned to him, from Plaintiff, in good working order, 1 electronic

digital remote control varmint caller with remote and 2 jack stands that the Plaintiff has

borrowed and not returned.”

       {¶3} After a February 19, 2010 hearing, the trial court found for Basinger and

awarded him $509.99 in damages. York took nothing on his counterclaim.

       {¶4} York appeals and asserts the following five assignments of error: I. “The

Court erred in stating that there was no rental agreement.” II. “The Court erred in

rendering any judgment, for items withheld by Plaintiff, electronic digital varmint caller

with remote and two jack stands.” III. “The Court erred as they did not take into

consideration Defendant[’]s countersuit and a notarized letter from the Plaintiff.” IV.

“The Court erred as they denied rendering any judgment for the boarding of a hog, that

belonged to the plaintiff[,] since plaintiff moved out and discontinued involvement of feed

or medical care for such hog.” And V. “The Court erred as they would not allow any

exchange of items still retained by Plaintiff and Defendant as offered in a letter dated

October 14, 2009.”

                                             II.

       {¶5} Before we may address York’s arguments on appeal, we must determine

whether the Meigs County Court, Small Claims Division, had subject-matter jurisdiction

to decide this case.
Meigs App. No. 11CA2                                                                  3


       {¶6} “Subject matter jurisdiction is defined as a court’s power to hear and decide

cases.” Heisler v. Heisler, 4th Dist. No. 09CA12, 2010-Ohio-98, ¶ 15, citing State ex rel.

Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998). “Appellate

courts may sua sponte consider subject matter jurisdiction even if not raised in the lower

courts.” Brown v. E. Ohio Gas Co., 8th Dist. No. 96815, 2011-Ohio-6443, ¶ 6, citing

State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 684 N.E.2d 72

(1997).

       {¶7} In the proceedings below, York filed a counterclaim for replevin. But

“[j]urisdiction of the small claims division is limited to $3,000, and there is no subject-

matter jurisdiction over claims for libel, slander, replevin, malicious prosecution, or

abuse of process. R.C. 1925.02(A)(1) and (2)(a)(i).” (Emphasis added.) Cleveland Bar

Assn. v. Pearlman, 106 Ohio St.3d 136, 2005-Ohio-4107, 832 N.E.2d 1193, ¶ 15.

“Replevin has been defined as: ‘* * * [A] remedy and a civil action by which the owner or

one who has a general or special interest in specific and identifiable personal property

and the right to its immediate possession seeks to recover the possession of such

property in specie, the recovery of damages, if it is sought, being only incidental.’”

(Omission sic.) Gates v. Praul, 10th Dist. No. 10AP-784, 2011-Ohio-6230, ¶ 33, quoting

Holstein v. Holstein, 7th Dist. No. 559, 1982 WL 6129, *2 (May 4, 1982). And here,

York’s counterclaim seeks to recover specific property from Ballinger -- namely, one

varmint caller and two jack stands. Therefore, York’s counterclaim is for replevin, and

the trial court lacked subject-matter jurisdiction over this counterclaim.

       {¶8} Because of the replevin counterclaim, the trial court should have dismissed

this action. “Pursuant to R.C. 1925.16, the Ohio Rules of Civil Procedure apply to
Meigs App. No. 11CA2                                                                  4


actions in the Small Claims Court to the extent they are not inconsistent with the

procedures provided in R.C. Chapter 1925.” Shokles v. Beatley, 10th Dist. No.

95APG05-665, 1995 WL 771443, *2 (Dec. 19, 1995); compare Civ.R. 1(C)(4). And

Civ.R. 12(H)(3) states that, “[w]henever it appears by suggestion of the parties or

otherwise that the court lacks jurisdiction on the subject matter, the court shall dismiss

the action.” (Emphasis added.) According to the rule in R.C. 1925.16, we find that

Civ.R. 12(H)(3) applies to actions in small claims court. Therefore, because York filed a

counterclaim for replevin, the trial court should have dismissed this action pursuant to

Civ.R. 12(H)(3). See Eicher v. Eicher, 4th Dist. No. 09CA34, 2010-Ohio-3784, ¶ 12

(finding that, “pursuant to Civ.R. 12(H)(3), the Hillsboro Municipal Court was required to

dismiss [an] action”).

       {¶9} Indeed, the trial court should have dismissed the entire case, not just York’s

counterclaim. Black’s Law Dictionary defines an “action” as “[a] civil or criminal judicial

proceeding[.]” Therefore, an action is not limited to the counterclaim itself -- an action is

the entire proceeding. Furthermore, we should read Civ.R. 12(H)(3) in conjunction with

the other civil rules. See generally State ex rel. Natl. Employee Benefit Servs., Inc. v.

Court of Common Pleas of Cuyahoga Cty., 49 Ohio St.3d 49, 50, 550 N.E.2d 941(1990)

(interpreting the civil rules so that they do not conflict with one another). And

significantly, Civ.R. 54(B) states the following: “When more than one claim for relief is

presented in an action whether as a claim, counterclaim, cross-claim, or third-party

claim * * *.” (Emphasis added.) Accordingly, a counterclaim is not a separate action

unto itself. Rather, the civil rules contemplate that an action is the sum total of all
Meigs App. No. 11CA2                                                                 5


claims, including counterclaims. Therefore, because the trial court lacked subject-matter

jurisdiction over York’s counterclaim, the entire case should have been dismissed.

       {¶10} Furthermore, we find that dismissing the entire case is especially

appropriate here. York’s replevin counterclaim appears to be a compulsory

counterclaim, and “compulsory counterclaims [are] applicable to small claims

proceedings.” Thirion v. Tutoki, 94 Ohio Misc.2d 77, 78, 703 N.E.2d 378 (M.C.1998).

See also R.C. 1925.05(A); Civ.R. 13(A). Therefore, one forum should resolve all of the

claims in this case.

       {¶11} Finally, dismissal is appropriate because the small claims division may not

transfer this case to the regular docket. Generally, when subject-matter jurisdiction is

lacking, a trial court may not transfer a case to the appropriate court. See Adams v.

Cox, 10th Dist. No. 09AP-684, 2010-Ohio-415, ¶10-18. But rules or statutes may

provide for transfer in certain circumstances. For example, “Civ.R. 13(J) permits a

municipal court to transfer a case by certifying it to the common pleas court if a

counterclaim, cross-claim or third-party complaint exceeds the court’s jurisdiction[.]” Id.

at ¶ 16. And under R.C. 1925.10, “A civil action that is duly entered on the docket of the

small claims division shall be transferred to the regular docket of the court * * * by the

filing of a counterclaim or cross-claim for more than three thousand dollars.” Therefore,

when a counterclaim falls outside the jurisdiction of the small claims court, R.C. 1925.10

provides for transfer only when that counterclaim exceeds the court’s monetary

jurisdiction.
Meigs App. No. 11CA2                                                             6


       {¶12} For the foregoing reasons, we vacate the judgment of the Meigs County

Court, Small Claims Division. On remand, we instruct the trial court to dismiss this

action pursuant to Civ.R. 12(H)(3).

                                      JUDGMENT VACATED AND CAUSE REMANDED.
Meigs App. No. 11CA2                                                               7


                                  JUDGMENT ENTRY

    It is ordered that the JUDGMENT BE VACATED AND THE CAUSE BE
REMANDED. Appellant and Appellee shall split equally the costs herein.

       The Court finds that there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Meigs County 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. Exceptions.

Harsha, J.:      Concurs in Judgment and Opinion.
McFarland, J.:   Dissents.



                                  For the Court


                                  BY:_____________________________
                                     Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
