[Cite as Brislin v. Albert, 2014-Ohio-3406.]


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

RALPH BRISLIN                                        C.A. No.     27052

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
VICTOR ALBERT                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellee                                     CASE No.   CV 2013-03-1654

                                  DECISION AND JOURNAL ENTRY

Dated: August 6, 2014



        HENSAL, Presiding Judge.

        {¶1}     Appellant, Ralph Brislin, appeals from the judgment of the Summit County Court

of Common Pleas. This Court reverses.

                                                I.

        {¶2}     Mr. Brislin sued Appellee, Victor Albert, in the Summit County Court of

Common Pleas for breach of an oral contract and contribution. He alleged that, in 2003, he and

Mr. Albert each executed a personal guaranty in connection with a loan obtained by a Michigan

corporation that was incorporated by both parties. According to Mr. Brislin, in December of

2008, he and Mr. Albert entered into an oral agreement in Summit County that each would pay

one-half of the payment due each month. In September of 2009, Mr. Albert stopped paying his

share of the monthly payment. In 2010, the corporation defaulted on the loan and the lender

demanded payment in full from both Mr. Brislin and Mr. Albert pursuant to the terms of their
                                                 2


guaranties.   Mr. Brislin alleged that he has paid more than his proportional share of the

outstanding balance due on the loan since the 2010 default.

       {¶3}     Mr. Albert filed a motion to dismiss wherein he argued that venue was improper

in Summit County. The trial court granted the motion on the basis that it did not have personal

jurisdiction over Mr. Albert. It further found that Summit County was not the proper venue for

the lawsuit. Mr. Brislin appeals and raises two assignments of error for this Court’s review.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DISMISSING APPELLANT BRISLIN’S
       COMPLAINT AGAINST APPELLEE ALBERT FOR LACK OF PERSONAL
       JURISDICTION.

       {¶4}    In his first assignment of error, Mr. Brislin argues that the trial court erred when it

concluded that it did not have personal jurisdiction over Mr. Albert. This Court agrees.

       {¶5}    “Personal jurisdiction is a question of law that appellate courts review de novo.”

Fraley v. Estate of Oeding, 138 Ohio St.3d 250, 2014-Ohio-452, ¶ 11. A court acquires personal

jurisdiction over a defendant either by “service of process upon the defendant, the voluntary

appearance and submission of the defendant or his legal representative, or by certain acts of the

defendant or his legal representative which constitute an involuntary submission to the

jurisdiction of the court.” Maryhew v. Yova, 11 Ohio St.3d 154, 156 (1984). “The latter may

more accurately be referred to as a waiver of certain affirmative defenses, including jurisdiction

over the person under the Rules of Civil Procedure.” Id.

       {¶6}    A challenge to the court’s personal jurisdiction over a defendant must generally

be raised either in his answer or by a motion filed before his answer. State ex rel. DeWine v.
                                                 3


9150 Group, L.P., 9th Dist. Summit No. 25939, 2012-Ohio-3339, ¶ 6; Civ.R. 12(B)(2). Civil

Rule 12(G) provides that

       [a] party who makes a motion under this rule must join with it the other motions
       herein provided for and then available to him. If a party makes a motion under
       this rule and does not include therein all defenses and objections then available to
       him which this rule permits to be raised by motion, he shall not thereafter assert
       by motion or responsive pleading, any of the defenses or objections so omitted,
       except as provided in subdivision (H) of this rule.

The defense of lack of personal jurisdiction is waived if it was omitted from either a Rule 12(G)

motion or a responsive pleading. Civ.R. 12(H)(1).

       {¶7}    Mr. Albert’s motion to dismiss was premised on his argument that Summit

County was not the proper venue for the lawsuit since he resided in Michigan and all or part of

the claim did not arise in the county. He failed to raise any defense based on a lack of personal

jurisdiction in his motion. Mr. Albert used language found in Civil Rule 3(B), which concerns

venue, in his motion to dismiss. In his opposition to Mr. Albert’s motion to dismiss, Mr. Brislin

maintained that the action was filed in the proper venue and that the court had personal

jurisdiction over the defendant on the basis of Ohio’s long-arm statute, Revised Code Section

2307.382.

       {¶8}    Personal jurisdiction and venue are two distinct legal concepts. See Fish v.

Nottoli, 7th Dist. Monroe No. 02-MO-4, 2003-Ohio-6275, ¶ 38. “[P]ersonal jurisdiction” is

defined as “‘[a] court’s power to bring a person into its adjudicative process; jurisdiction over a

defendant’s personal rights, rather [than] merely over property interests.” Renacci v. Evans, 9th

Dist. Medina No. 09CA0004-M, 2009-Ohio-5154, ¶ 6, quoting Black’s Law Dictionary 870 (8th

Ed.2004). “Venue” is defined as “the particular locality where a suit should be heard, after

jurisdiction is established.” Id., citing Morrison v. Steiner, 32 Ohio St.2d 86, 87 (1972).
                                                 4


       {¶9}    This Court concludes that Mr. Albert waived his defense of lack of personal

jurisdiction by failing to specifically raise it along with his venue defense in his motion to

dismiss. Civ.R. 12(G) and (H)(1). The trial court essentially considered the issue of personal

jurisdiction sua sponte since Mr. Albert did not raise it. However, “once the lack of personal

jurisdiction was waived, the trial court could not sua sponte address the issue of personal

jurisdiction in its judgment entry.” D’Amore v. Mathews, 193 Ohio App.3d 575, 2011-Ohio-

2853, ¶ 34 (12th Dist.). Accordingly, the trial court erred in finding that it lacked personal

jurisdiction over Mr. Albert. His first assignment of error is sustained.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN DISMISSING APPELLANT BRISLIN’S
       COMPLAINT AGAINST APPELLEE ALBERT FOR IMPROPER VENUE.

       {¶10} Mr. Brislin argues in his second assignment of error that the trial court erred in

finding that Summit County was not the proper venue for his lawsuit. We agree.

       {¶11} This Court reviews a decision on venue for an abuse of discretion. Renacci,

2009-Ohio-5154, at ¶ 12.        An abuse of discretion “implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). We may not substitute our judgment for that of the trial court when applying the abuse

of discretion standard. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶12} Civil Rule 3(B) provides, in pertinent part, that:

       Any action may be venued, commenced, and decided in any court in any county.
       * * * Proper venue lies in any one or more of the following counties:

       (1) The county in which the defendant resides;

       ***

       (3) A county in which the defendant conducted activity that gave rise to the claim
       for relief;
                                                 5



       ***

       (6) The county in which all or part of the claim for relief arose * * *;

       (7) In actions described in Civ.R. 4.3, in the county where plaintiff resides;

       ***

       (12) If there is no available forum in divisions (B)(1) to (B)(10) of this rule, in
       the county in which plaintiff resides * * *[.]

Civil Rule 4.3(A)(9) provides that service of process may be effected on a nonresident who

       has caused an event to occur out of which the claim that is the subject of the
       complaint arose, from the person’s * * * [c]ausing tortious injury in this state to
       any person by an act outside this state committed with the purpose of injuring
       persons, when the person to be served might reasonably have expected that some
       person would be injured by the act in this state[.]

       {¶13} Mr. Albert argued in his motion to dismiss that venue was not proper as the action

was not commenced where he resided or where all or part of the claim for relief arose. He

appended an affidavit wherein he averred that: (1) his permanent residence was in Michigan; (2)

he had never resided in Ohio; (3) all of the discussions pertaining to the transaction occurred in

Michigan; (4) the promissory note was executed in Michigan; and (5) he was never in Ohio with

regard to the transaction. Mr. Brislin argued that venue was proper in Summit County under

Civil Rule 3(B)(6) and (7) as it was the county in which all or part of the claim for relief arose

and because he was a resident of the county.

       {¶14} In granting Mr. Albert’s motion to dismiss, the trial court found that Summit

County was not the proper venue for the action. The court noted that, although Mr. Brislin

alleged that the loan transaction originated in Ohio, it found that: (1) the promissory note does

not state where it originated; (2) Mr. Albert’s guaranty lists Michigan as the address for both him

and the lender; and (3) the guaranty contains a forum selection clause that provides that the
                                                  6


guarantor would submit to the jurisdiction of the court where the lender’s loan production office

was located, which was in Michigan. The trial court found that Mr. Albert had only minimal

contacts with Ohio, and that Michigan was the appropriate venue for the action.

       {¶15} This case is analogous to Renacci, 2009-Ohio-5154.1 In that case, the parties

entered into a contract wherein the defendant agreed to reimburse the plaintiff for any losses he

suffered as a result of his obtaining a line of credit for a Florida corporation. The defendant

moved to change venue on the basis that the debt occurred in Florida, the matter involved

funding for a Florida corporation that produced products in Pennsylvania, the agreement was

governed by the laws of Florida, and he was a Michigan resident. The plaintiff maintained that

venue was proper as he was both a resident of Medina County and maintained his principal place

of business there. In addition, the plaintiff argued that the action concerned the recovery of

funds that were provided and accounted for in the county and that the payments were being made

in the county.

       {¶16} This Court determined that the trial court did not err in finding that Medina

County was the proper venue for the action. Renacci, 2009-Ohio-5154, at ¶ 21. Specifically, we

recognized that the default occurred in Medina and the repayment was to be cured and

reimbursed in the county. Id. In addition, the agreement between the parties provided for

reimbursement to the plaintiff in Medina. Id.




       1
          We recognize that Renacci differs from the instant case insofar as there was a written,
rather than an oral, agreement between the parties and no common law contribution claim. We
conclude, however, that it is still useful in assisting us in analyzing the question of venue in light
of Mr. Brislin’s breach of an oral contract claim, which implicates several of the same issues.
                                                7


       {¶17} Similarly in the present case, Mr. Brislin alleged that the parties entered into an

oral agreement in Summit County wherein each would pay 50 percent of the amount due to the

lender each month. He further alleged that he was damaged by Mr. Albert’s breach of the

agreement as he was forced to pay the entire amount of the monthly payments. Mr. Brislin

appended a copy of the default and balance acceleration letter which demonstrates it was mailed

from an Akron, Ohio branch of the lender. In his motion to dismiss, Mr. Albert does not dispute

that Mr. Brislin is a Summit County resident or that he made more than his proportionate share

of the loan payments. He instead relies upon his averments that he is a Michigan resident and

never entered Ohio in connection with the transaction. The guaranty attached to the complaint

indicates that Mr. Brislin was a Summit County resident at the inception of the loan in 2003.

       {¶18} Mr. Brislin’s allegations are sufficient to establish that Summit County is a proper

venue for the action. The trial court’s reliance on the terms of the promissory note and guaranty

were misplaced as Mr. Brislin’s claims against Mr. Albert do not arise specifically from those

documents. Rather, he alleges the existence of a separate oral agreement that formed the basis of

his breach of contract claim and a right to contribution from Mr. Albert that arose as a result of

his allegedly paying more than his share of the outstanding loan balance. “Contribution, when it

exists, is the right of a person who has been compelled to pay what another should pay in part to

require partial (usually proportionate) reimbursement and arises from principles of equity and

natural justice.” Travelers Indem. Co. v. Trowbridge, 41 Ohio St.2d 11 (1975), paragraph two of

the syllabus, overruled on other grounds by Motorists Mut. Inc. Co. v. Huron Rd. Hosp., 73 Ohio

St.3d 391 (1995), paragraph one of the syllabus.        Contribution is not based in contract.

Schwetschenau v. Whitfield, 177 Ohio App.3d 155, 2008-Ohio-3164, ¶ 9 (1st Dist.).
                                                  8


       {¶19} This Court also notes that it is not proper for a trial court to dismiss a complaint

on the basis of improper venue. Singleton v. Denny’s, Inc., 36 Ohio App.3d 225, 227 (9th

Dist.1987).   The proper procedure to employ when an action has been commenced in an

improper county is to transfer the matter to the proper Ohio county. Civ.R. 3(C). However,

       [w]hen a court * * * determines: (1) that the county in which the action is
       brought is not a proper forum; (2) that there is no other proper forum for trial
       within this state; and (3) that there exists a proper forum for trial in another
       jurisdiction outside this state, the court shall stay the action upon condition that all
       defendants consent to the jurisdiction, waive venue, and agree that the date of
       commencement of the action in Ohio shall be the date of commencement for the
       application of the statute of limitations to the action in that forum in another
       jurisdiction which the court deems to be the proper forum. If all defendants agree
       to the conditions, the court shall not dismiss the action, but the action shall be
       stayed until the court receives notice by affidavit that plaintiff has recommenced
       the action in the out-of-state forum within sixty days after the effective date of the
       order staying the original action. If the plaintiff fails to recommence the action in
       the out-of-state forum within the sixty day period, the court shall dismiss the
       action without prejudice. If all defendants do not agree to or comply with the
       conditions, the court shall hear the action.

Civ.R. 3(D)

       {¶20} Accordingly, this Court concludes that the trial court abused its discretion in

granting Mr. Albert’s motion to dismiss on the basis that Summit County was not the proper

venue. His second assignment of error is sustained.

                                                 III.

       {¶21} Mr. Brislin’s assignments of error are sustained. The judgment of the Summit

County Court of Common Pleas is reversed and the cause is remanded for further proceedings

consistent with this opinion.

                                                                                 Judgment reversed,
                                                                                and cause remanded.
                                                   9


       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

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.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT




CARR, J.
CONCURS.

MOORE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶22} I agree with the majority’s resolution of Mr. Brislin’s first assignment of error,

but I would approach Mr. Brislin’s second assignment of error differently. Although the trial

court’s order separately supplies the respective law pertaining to personal jurisdiction and venue,

I read the trial court’s analysis as largely conflating these legally distinct issues, e.g. “the [c]ourt

finds that [Mr. Brislin] has not sustained his burden of proof by a preponderance of the evidence

that [Mr. Albert] had sufficient minimum contacts with Ohio to subject him to the long arm
                                                10


statu[t]e of Ohio or venue in Summit County, Ohio.” The language contained in the order

appears to decide this issue primarily based upon the proposition that the trial court lacked

personal jurisdiction over Mr. Albert. I agree with the majority that the trial court erred in

essentially sua sponte dismissing this matter on the basis of lack of personal jurisdiction because

this issue was not raised in Mr. Albert’s motion.

       {¶23} Having determined that the trial court erred in dismissing this matter on the basis

of lack of personal jurisdiction, I would not proceed to determine whether venue properly lay in

Summit County. This is a matter for the trial court to decide in the first instance. Instead, I

would set forth the law pertinent to such a determination, as the majority has set forth in

paragraphs twelve and nineteen and instruct the trial court to govern itself by that precedent.


APPEARANCES:

JEFFREY W. KRUEGER, Attorney at Law, for Appellant.

DAVID FRIEDMAN, Attorney at Law, for Appellee.
