[Cite as State ex rel. Pingue v. Schneider, 2013-Ohio-4211.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio ex rel.                                   :
Giuseppe A. Pingue, Sr.,
                                                        :
                 Relator,                                          No. 13AP-51
                                                        :
v.                                                             (REGULAR CALENDAR)
                                                        :
Charles A. Schneider, Judge,
                                                        :
                 Respondent,
                                                        :
(Alexander Square, LLC,
                                                        :
                 Intervenor-Respondent).
                                                         :




                                          D E C I S I O N

                                   Rendered on September 26, 2013


                 The Behal Law Group LLC, and John M. Gonzales, for
                 relator.

                 Ron O'Brien, Prosecuting Attorney, and Scott O. Sheets, for
                 respondent.

                 Zeiger, Tigges & Little, LLP, Marion H. Little, and
                 Matthew S. Zeiger, for Alexander Square, LLC.

                                            IN PROHIBITION

BROWN, J.
        {¶ 1} Relator, Giuseppe A. Pingue, Sr., has filed an original action requesting that
this court issue a writ of prohibition ordering respondent, the Honorable Charles A.
Schneider, judge of the Franklin County Court of Common Pleas ("respondent"), to
No. 13AP-51                                                                               2


refrain from conducting any further proceedings in common pleas case No. 12CVH11-
14649.
         {¶ 2} The matter was referred to a magistrate of this court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. On February 28, 2013,
respondent filed a motion for summary judgment. On March 13, 2013, relator filed a
cross-motion for summary judgment and a memorandum in opposition to respondent's
motion for summary judgment. The magistrate issued the appended decision, including
findings of fact and conclusions of law, recommending that this court deny relator's
motion for summary judgment and grant summary judgment in favor of respondent.
         {¶ 3} Relator has filed objections to the magistrate's decision, arguing that the
magistrate incorrectly determined that respondent could adjudicate an action filed in
2012 by intervening-respondent, Alexander Square, LLC ("Alexander Square"), in the
Franklin County Court of Common Pleas separate and apart from relator's 2011 action
filed in the Delaware County Court of Common Pleas.            Relator contends that the
magistrate narrowly interpreted the "jurisdictional priority" rule to hold that it only
applies if the causes of action are the same in both cases. Relator argues that the actions
before both tribunals (Franklin County and Delaware County) are part of the same "whole
issue," and therefore the Delaware County Court of Common Pleas has priority
jurisdiction.
         {¶ 4} In order to be entitled to a writ of prohibition, relator is required to
establish that (1) respondent "is about to exercise judicial power, (2) the exercise of that
power is not authorized by law, and (3) denying the writ will result in injury for which no
adequate remedy exists in the ordinary course of law." State ex rel. Wellington v. Kobly,
112 Ohio St.3d 195, 2006-Ohio-6571, ¶ 14, citing State ex rel. Douglas v. Burlew, 106 Ohio
St.3d 180, 2005-Ohio-4382, ¶ 9. See also State ex rel. Dannaher v. Crawford, 78 Ohio
St.3d 391, 392 (1997) ("Neither prohibition nor mandamus will lie where relator possesses
an adequate remedy in the ordinary course of law."). Under Ohio law, "[a]bsent a patent
and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction
can determine its own jurisdiction, and a party challenging the court's jurisdiction has an
adequate remedy by appeal." Id., citing State ex rel. Enyart v. O'Neill, 71 Ohio St.3d 655,
656 (1995).
No. 13AP-51                                                                                   3


       {¶ 5} Upon review, we agree with the magistrate's determination that respondent
can adjudicate Alexander Square's cause of action separate and apart from relator's action
in Delaware County (i.e., claims by Alexander Square that relator violated R.C. 4513.60
and tortiously interfered with business relationships by unlawfully towing cars from its
property are separate from claims by relator that Alexander Square violated a written
easement by allowing its lessees, customers, and business invitees to park vehicles within
portions of the easement area). Here, although the cases may implicate "rights involving
the same general property," they concern "separate and different issues," and therefore
the jurisdictional priority rule "did not patently and unambiguously divest" respondent
of jurisdiction. (Emphasis sic.) Dannaher at 394. Further, this court "need not expressly
rule on the * * * jurisdictional issue since our review is limited to whether * * * jurisdiction
is patently and unambiguously lacking." (Emphasis sic.) Goldstein v. Christiansen, 70
Ohio St.3d 232, 238 (1994). In such circumstances, "[a]ppeal constitutes an adequate
legal remedy to raise any claimed error in failing to apply the jurisdictional priority rule."
Dannaher at 394.
       {¶ 6} Based upon the foregoing, this court adopts the magistrate's decision as our
own, including the findings of facts and conclusions of law. In accordance with the
magistrate's recommendation, respondent's motion for summary judgment is granted,
relator's cross-motion for summary judgment is denied, and relator's request for a writ of
prohibition is denied.
                                     Respondent's motion for summary judgment granted;
                                      relator's cross-motion for summary judgment denied
                                                        relator's writ of prohibition denied.


                          KLATT, P.J., and T. BRYANT, J., concur.

              T. BRYANT, J., retired of the Third Appellate District,
              assigned to active duty under authority of the Ohio
              Constitution, Article IV, Section 6(C).

                             ________________________
[Cite as State ex rel. Pingue v. Schneider, 2013-Ohio-4211.]

                                                APPENDIX

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                   :
Giuseppe A. Pingue, Sr.,
                                                        :
                 Relator,
                                                        :              No. 13AP-51
v.
                                                        :           (REGULAR CALENDAR)
Charles A. Schneider, Judge,
                                                        :
                 Respondent.




                               MAGISTRATE'S DECISION

                                       Rendered on April 30, 2013


                 The Behal Law Group LLC, and John M. Gonzales, for
                 relator.

                 Ron O'Brien, Prosecuting Attorney, and Scott O. Sheets, for
                 respondent.


                                    IN PROHIBITION
                           ON MOTIONS FOR SUMMARY JUDGMENT

        {¶ 7} Relator, Giuseppe A. Pingue, Sr. ("Pingue"), has filed this original action
requesting that this court issue a writ of prohibition ordering respondent, the Honorable
Charles A. Schneider, judge of the Franklin County Court of Common Pleas, to refrain
from conducting any further proceedings in the case of Alexander Square, LLC v.
Giuseppe A. Pingue, Sr., Franklin County C.P. No. 12CVH11-14649.




Findings of Fact:
No. 13AP-51                                                                             5


       {¶ 8} 1. On August 30, 2011, Pingue filed a complaint in the Delaware County
Court of Common Pleas ("Delaware CPC"), against Alexander Square, LLC ("Alexander
Square") and Preferred Real Estate Investments II, LLC ("Preferred"). The substance of
Pingue's complaint was that Alexander Square and Preferred were violating easements
created in 1995 and 2008, primarily by permitting people to utilize the space for parking.
Pingue alleged other infringements as well including that Alexander Square and Preferred
were trespassing on the property.
       {¶ 9} 2. At the time this prohibition action was filed, motions for summary
judgment were pending in the Delaware CPC.
       {¶ 10} 3. On November 28, 2012, Alexander Square filed a complaint for
injunctive relief against Pingue in the Franklin County Court of Common Pleas ("Franklin
CPC"). Alexander Square alleged that Pingue was violating R.C. 4513.60(G) by having
cars towed from the area of the easements. Alexander Square also alleged counts of
tortious interference with contract and/or business relationships and perspective
contractual relations.
       {¶ 11} 4. Pingue filed a motion to dismiss Alexander Square's complaint in the
Franklin CPC on grounds that Alexander Square's cause of action constituted a
compulsive counterclaim in the Delaware CPC litigation under Civ.R. 13(E). Pingue also
contended that the Franklin CPC lacked subject-matter jurisdiction under the
jurisdictional priority rule.    Specifically, Pingue argued that respondent lacked
jurisdiction because the Delaware CPC had acquired jurisdiction of the subject matter
before Alexander Square filed its complaint in the Franklin CPC.
       {¶ 12} 5. On January 8, 2013, respondent issued a decision and entry denying
Pingue's motion to dismiss or transfer the underlying case.           In finding that the
jurisdictional-priority rule did not apply, respondent found as follows:
              [A] Here, although the parties are substantially identical to
              those in Delaware, the claims are not (despite Mr. Pingue's
              assertion that Alexander Square's complaint is simply an
              inversion of his claims in Delaware). In the Delaware action,
              Mr. Pingue alleged that Alexander Square allowed its tenants
              and business invitees to park in the easement, thus denying
              him its full benefit. He also raised claims for trespass and
              encroachment. He prayed for damages and an injunction
              against further violation of the terms of the easement.
No. 13AP-51                                                                                             6



                [B] Moreover, Alexander Square's * * * claim can be fully
                litigated without determining whether parking in the
                easement violates its terms. This is because Mr. Pingue may
                be acting in violation of R.C. 4513.60 and tortiously
                interfering with economic relations1 regardless of whether
                vehicles may be properly parked within the easement.

                [C] And, as Alexander Square argues, its claims are not
                compulsory counterclaims in the Delaware action. Although
                its claims bear some relation to the subject matter of the
                Delaware action, Civ.R. 13(E) provides that "A claim which
                either matured or was acquired by the pleader after serving
                his pleading may, with the permission of the court, be
                presented as a counterclaim by supplemental pleadings."
                * * * Mr. Pingue filed the complaint in Delaware on
                August 30, 2011. * * * Alexander Square's complaint alleges
                that Mr. Pingue did not begin towing cars until at least
                August 2012 * * *.

        {¶ 13} 6. On January 18, 2013, Pingue filed this complaint seeking a writ of
prohibition. Pingue also sought a stay of the underlying Franklin CPC action which this
court denied.
        {¶ 14} 7. On February 28, 2013, respondent, filed a motion for summary
judgment.
        {¶ 15} 8. On March 13, 2013, Pingue filed a cross-motion for summary judgment
and a memorandum opposing respondent's motion for summary judgment.
        {¶ 16} 9. On March 18, 2013, Alexander Square filed an intervening cross-motion
for summary judgment and a memorandum in opposition to Pingue's motion for
summary judgment.
        {¶ 17} 10. The matter is currently before the magistrate on the three motions for
summary judgment.




Conclusions of Law:


1 Whether tortious interference with economic relations by virtue of towing vehicles potentially in
violation of R.C. 4513.60 is actionable and is an issue that can be argued at the evidentiary hearing. See
Wurdlow v. Turvy, 10th Dist. No. 12AP-25, 2012--Ohio-4378, ¶ 11
No. 13AP-51                                                                              7


       {¶ 18} For the reasons that follow, it is this magistrate's decision that this court
should grant summary judgment in favor of respondent and Alexander Square because
Pingue has not demonstrated that the trial court patently and unambiguously lacks
jurisdiction over the underlying action filed by Alexander Square.
       {¶ 19} As an initial matter, Pingue contends that this court cannot grant summary
judgment in favor of respondent because there are genuine issues of material fact. The
magistrate disagrees with Pingue's assertion.
       {¶ 20} In terms of this court's determination of whether respondent patently and
unambiguously lacks jurisdiction over Alexander Square's action filed in the Franklin
CPC, the material facts are not in dispute. The Franklin CPC clearly and succinctly set out
the basic facts and allegations asserted in the Delaware CPC filed by Pingue as well as the
facts and allegations asserted in the Franklin CPC filed by Alexander Square. Nowhere in
his memorandum opposing either motion for summary judgment does Pingue set forth
any material facts which are in dispute.
       {¶ 21} Neither mandamus nor prohibition will issue if Pingue has an adequate
remedy in the ordinary course of law. See State ex rel. Kreps v. Christiansen, 88 Ohio
St.3d 313 (2000). In the absence of a patent and unambiguous lack of jurisdiction, a
court having general subject-matter jurisdiction can determine its own jurisdiction, and a
party challenging that jurisdiction has an adequate remedy by appeal. See State ex rel.
Shimko v. McMonagle, 92 Ohio St.3d 426 (2001). A writ of prohibition will not issue to
prevent an erroneous judgment, or to serve the purpose of an appeal, or to correct
mistakes of the lower court in deciding questions within its jurisdiction. State ex rel.
Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 65 (1950). Furthermore, it
should be used with great caution and not issue in a doubtful case. State ex rel. Merion,
Supt. of Bldg. & Loan Assns. v. Court of Common Pleas of Tuscarawas Cty., 137 Ohio St.
273 (1940).
       {¶ 22} Pingue contends that respondent lacks jurisdiction over the proceedings
brought by Alexander Square alleging that Pingue's actions of having vehicles towed from
Alexander Square's land violates R.C. 4513.60, which includes a safe-harbor provision for
property owners or their agents who have vehicles towed from established private tow-
away zones and Alexander Square's further allegation that, by violating R.C. 4513.60,
No. 13AP-51                                                                               8


Pingue has tortiously interfered with Alexander Square's contractual relationships,
business relationships, and prospective business relationships. Pingue asserts that the
jurisdictional priority rule patently and unambiguously divests any court other than the
Delaware CPC of jurisdiction over the dispute.
       {¶ 23} The jurisdictional priority rule provides:
              As 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. (John Weenink & Sons Co. v.
              Court of Common Pleas, 150 Ohio St. 349, 82 N.E.2d 730
              [38 O.O. 189] approved and followed.)

State ex rel. Racing Guild of Ohio v. Morgan, 17 Ohio St.3d 54 (1985).

       {¶ 24} As a general rule, 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.
Red Head, Brass, Inc. v. Holmes Cty. Court of Common Pleas, 80 Ohio St.3d 149 (1997).
       {¶ 25} In the Delaware CPC, Pingue asserts several causes of action including
trespass. Specifically, Pingue contends that Alexander Square is permitting its lessees,
customers, and/or business invitees to park their vehicles in portions of the 1995
easement area. Pingue contends that Alexander Square is illegally taking portions of the
easement area away from Pingue and is violating the 1995 easement. Ultimately, Pingue
seeks injunctive relief as well as damages.
       {¶ 26} As noted previously, the Delaware CPC was filed in August 2011. According
to the record evidence, both sides have motions filed for summary judgment in the
Delaware CPC.
       {¶ 27} Further, the record establishes that approximately one year after Pingue
filed his action in the Delaware CPC, Pingue began towing cars owned by Alexander
Square residents.
       {¶ 28} In the Franklin CPC, Alexander Square asserts that Pingue is violating R.C.
4513.60 and tortiously interfering with Alexander Square's business. The magistrate finds
that respondent's conclusion that the Franklin CPC could adjudicate Alexander Square's
No. 13AP-51                                                                              9


cause of action separate and apart from Pingue's Delaware CPC action is correct. As the
trial court found, allegations that Pingue violated R.C. 4513.60 by towing cars is separate
from Pingue's arguments that residents and business invitees of Alexander Square were
parking in the easement. In the Franklin CPC, the question is whether or not Pingue
properly towed those cars and, if not, whether that finding can form the basis for
Alexander Square's assertion that Pingue has tortiously interfered with Alexander
Square's economic relations. The resolution of Pingue's claims in the Delaware CPC need
not be determined.
      {¶ 29} It must be remembered that the role of this court is to determine whether or
not the trial court patently and unambiguously lacks jurisdiction and not whether the
jurisdictional priority role precludes the trial court from exercising jurisdiction. The
second is an issue which could be raised on appeal.
      {¶ 30} Even construing the facts most strongly in Pingue's favor, reasonable minds
could reach only one conclusion and that is that the trial court does not patently and
unambiguously lack jurisdiction to hear Alexander Square's case. As such, it is this
magistrate's decision that this court should deny Pingue's motion for summary judgment
and grant summary judgment in favor of respondent and Alexander Square.




                                         /S/ MAGISTRATE
                                         STEPHANIE BISCA BROOKS


                               NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
              as error on appeal the court's adoption of any factual finding
              or legal conclusion, whether or not specifically designated as
              a finding of fact or conclusion of law under Civ.R.
              53(D)(3)(a)(ii), unless the party timely and specifically
              objects to that factual finding or legal conclusion as required
              by Civ.R. 53(D)(3)(b).
