[Cite as Meyers v. Chiaverini, 2016-Ohio-3498.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HENRY COUNTY




WILLIAM R. MEYERS,

        PLAINTIFF-APPELLEE,                                CASE NO. 7-16-01

        v.

JASCHA CHIAVERINI,                                         OPINION

        DEFENDANT-APPELLANT.




                        Appeal from Napoleon Municipal Court
                            Trial Court No. 15CVG0431

                  Judgment Affirmed in Part and Reversed in Part

                             Date of Decision:    June 20, 2016




APPEARANCES:

        George C. Rogers for Appellant

        Albert L. Potter, II for Appellee
Case No. 7-16-01


SHAW, P.J.

      {¶1} Defendant-appellant Jascha Chiaverini (“Chiaverini”) brings this

appeal from the judgment of the Napoleon Municipal Court of Henry County,

Ohio, granting the complaint for forcible entry and detainer (“FED”) filed by

plaintiff-appellee William Meyers (“Meyers”).        Chiaverini also appeals the

municipal court’s judgment dismissing his counterclaims for abuse of process and

frivolous conduct against Meyers, and Chiaverini’s third-party complaint against

Meyers’ attorney for abuse of process and frivolous conduct.

                   I. Relevant Facts and Procedural History

      {¶2} Meyers is the titled owner of property at “10-351 County Road O-3,”

Napoleon, Henry County, Ohio.        (Doc. No. 1).     The property consists of

approximately three acres and contains “a small two bedroom farmhouse,” two

granaries, a “large old barn” and “a half-moon shaped building about 70 feet

long.” (Aug. 26, 2015, Tr. at 33). On October 10, 2011, Meyers entered into a

Land Installment Contract with LJ Farms, LLC (“LJ Farms”), for LJ Farms to

purchase the subject property. According to the record, when LJ Farms “was

created the LJ stood for Lynette Smith and Jascha Chiaverini.” (Oct. 14, 2015, Tr.

at 9). Meyers claimed that at the time the Land Installment Contract was entered

into, Chiaverini was a “principal” of LJ Farms.

      {¶3} The Land Installment Contract was executed between Meyers and

attorney George C. Rogers on behalf of LJ Farms. Rogers was listed as the “V.P.”

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for LJ Farms.1 According to the record, attorney Rogers drafted the contract.2

The Land Installment Contract called for a $60,000 purchase price for the subject

property and stated that LJ Farms would be credited with $10,000 already paid.

LJ Farms was then required to pay $650 per month for five years, and at the end of

five years, LJ Farms would make a final lump-sum payment of $16,000.

        {¶4} According to Meyers, LJ Farms defaulted on the Land Installment

Contract by failing to pay any of the required $650 monthly payments. As a

result, Meyers filed suit in Henry County Common Pleas Court case Meyers v. LJ

Farms, LLC, No. 2012 CV 0096, claiming LJ Farms had forfeited the Land

Installment Contract. LJ Farms countersued, seeking specific performance of the

Land Installment Contract.

        {¶5} On February 6, 2015, the Henry County Common Pleas Court filed an

entry granting partial summary judgment to Meyers on his claim that LJ Farms

had forfeited the Land Installment Contract. The entry stated specifically that “LJ

Farms LLC[’]s interest in the Land Installment Contract * * * is hereby

terminated.”3 (Doc. No. 4). The entry also denied LJ Farms’ claim for summary




1
  Lynette Smith was apparently the president of LJ Farms at the time the Land Installment Contract was
made.
2
  Rogers has been Chiaverini’s attorney throughout the pendency of the case sub judice.
3
  The Henry County Common Pleas Court found that “[u]nder the plain reading of this * * * [c]ontract the
Defendant was in default for at least 7 or 8 months prior to the initiation of the forfeiture proceedings.”
(Doc. No. 4). We acknowledge that the Henry County Common Pleas Court’s judgment related to this
issue has not yet been reduced to a final appealable judgment.

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judgment for specific performance of the Land Installment Contract.4 In addition,

the entry stated that it was not a final appealable order as the issue of damages

remained to be litigated.

         {¶6} According to our record, on June 17, 2015, Meyers filed an amended

complaint in the Henry County Common Pleas Court case seeking, inter alia, FED

against LJ Farms since LJ Farms interest in the Land Installment Contract had

been terminated. The amended complaint also asserted a claim against Chiaverini

individually, claiming that Chiaverini took possession, and continued to

unlawfully possess, Meyers’ “Bobcat Model 853” which had a purported present

value of $15,000. As far as the record before us indicates, the litigation in the

Henry County Common Pleas Court remained pending when Meyers filed this

current action in the Napoleon Municipal Court.5

         {¶7} On August 6, 2015, while the Henry County Common Pleas Court

litigation was pending, Meyers filed a complaint against Chiaverini individually in

the Napoleon Municipal Court alleging that Chiaverini was unlawfully and

forcibly detaining the subject property. The complaint in this case did not list LJ

Farms as a defendant. According to the complaint, subsequent to entering into the

4
  In analyzing the issues, the Henry County Common Pleas Court noted that there were at least five
“drafting deficiencies” with the Land Installment Contract itself including, inter alia, no date of the
contract and a failure to state any encumbrances on the property. (Doc. No. 4). The common pleas court
reasoned that LJ Farms could not argue that drafting deficiencies in the Land Installment Contract excused
LJ Farms’ lack of performance because the contract was drafted by an officer of LJ Farms.
5
  Throughout this litigation the parties’ filed, presented, or attached as exhibits several documents from the
pending Henry County Common Pleas Court case including the entry on partial summary judgment,
Meyers’ amended complaint, and a later journal entry wherein the common pleas court stated that it had not
ruled on LJ Farms’ possessory right to the subject property, which will be discussed infra.

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land contract, Chiaverini took possession of the subject property, but later

abandoned it,6 leaving behind equipment and miscellaneous personal possessions.

Meyers later described the subject property as “in total disrepair.” (Aug. 26, 2015,

Tr. at 14). Meyers stated that the property was “ quite a mess” due to the fact that

Chiaverini had moved “tons and tons of materials and building materials and

equipment and trailers and junk and campers and all kinds of things onto the

property and [Chiaverini] has refused to remove them.” (Aug. 26, 2015, Tr. at 7).

           {¶8} The complaint alleged that Chiaverini was an occupier of the subject

property with no legal right due to the Henry County Common Pleas Court’s

ruling declaring LJ Farms’ interest in the land contract terminated. The complaint

also alleged that Meyers had served Chiaverini notice in writing to vacate the

premises, and that Chiaverini unlawfully and forcibly detained possession of the

premises. In a separate cause of action, the complaint alleged that Chiaverini was

liable to Meyers for damages, which included, inter alia, payment for reasonable

rental value.

           {¶9} On August 26, 2015, the Napoleon Municipal Court held a hearing on

the FED action. At the hearing, Meyers testified in his case-in-chief that he owned

the subject property. A copy of Meyers’ warranty deed was entered into evidence.

Meyers testified that he entered into a land installment contract for LJ Farms to

purchase the subject property on October 10, 2011. Meyers testified that at the

6
    There are indications in the record that L&J Farms sublet the property in 2014.

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time the contract was entered into, Chiaverini was involved in the negotiations but

Chiaverini did not sign the contract.

       {¶10} Meyers testified that Chiaverini had “abandoned” the property, but

he had left a number of personal possessions there. (Tr. at 6). Meyers testified

that he had received notices from the township and the prosecutor’s office to clean

up the subject property or face legal action.     Copies of two of those letters

providing Meyers a deadline to clean up the property or face legal action were

introduced into evidence.

       {¶11} Meyers testified that Chiaverini was preventing him cleaning up the

property to comply with the order despite the fact that Chiaverini was not living on

the property and had no legal right to be there. Meyers testified that Chiaverini

notified the sheriff

       every time somebody goes out to mow the lawn or do anything at
       the property to maintain it or clean it up and it’s gotten to be
       very difficult with the Sheriff Department, they understand the
       situation and need clarification on this immediately so that I can
       get it cleaned up. I have the crew, the equipment to clean it up
       immediately; I just need to be able to get on the property to do
       it.

(Tr. at 8).

       {¶12} Meyers testified that Chiaverini was not a tenant, that he had no lease

agreement with Chiaverini, that Chiaverini had not lived there for over a year, and




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that “not a penny” had ever been paid on the contract.7 Meyers testified that he

served a three-day notice to leave on Chiaverini, but Chiaverini was still

occupying the property.

        {¶13} Meyers also testified regarding the order that had been entered in the

Henry County Common Pleas Court between Meyers and LJ Farms. A copy of

the entry was introduced into evidence, which indicated that LJ Farms’ interest in

the land contract had been terminated. On cross-examination, Meyers was asked

if he was aware that there was an appeal made from the Henry County Common

Pleas Court entry granting Meyers’ partial summary judgment, and whether he

was aware that the appeal was dismissed due to a lack of a final appealable order.

Meyers answered in the affirmative.

        {¶14} On cross-examination Meyers was also asked if LJ Farms was in

possession of the premises and whether Meyers was asking LJ Farms to leave.

Meyers answered the question, though his answer, which follows, provided little

clarity.

        No, no, LJ Farms is not, we did that as just a backup because we
        felt so that would be another ploy to take more time to get your
        junk off the property, period. So we filed this one so that we can
        have another hearing on this later, if necessary, if the judge finds
        we have to deal with LJ Farms, but LJ Farms is not there, it is
        Jascha Chiaverini[.]



7
  Meyers testimony is accurate to the extent that it appears that none of the monthly payments were ever
timely made by Chiaverini and accepted by Meyers. However, it is undisputed that LJ Farms was credited
with $10,000 already paid pursuant to the original Land Installment Contract.

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Case No. 7-16-01


(Tr. at 12). Meyers then elaborated, testifying that “all the things that are at the

farm right now belong to [Chiaverini].” (Id. at 13). Meyers testified that it was

his understanding that “nothing in the farm house belongs to [LJ Farms]; it all

belonged to a tenant that you sublet to and now won’t let on the property[.]” (Tr.

at 16). Meyers testified that if LJ Farms has “anything there that belongs to them,

I have no idea.” (Tr. at 13).

           {¶15} Meyers was also repeatedly asked on cross-examination about LJ

Farms and whether there was litigation pending between LJ Farms and Meyers

and whether LJ Farms had ever made a payment on the Land Installment Contract.

The municipal court made clear that LJ Farms is not a party to this action. (Tr. at

19).

           {¶16} Meyers testified that the last time he was on the subject property was

in July of 2015 and that at that time Chiaverini blocked the driveway so that

“renters” and Chiaverini’s “girlfriend”8 could not get their belongings that were on

the property. (Tr. at 24). Meyers testified that he had also been on the property in

February of 2015 and at that time he learned that nobody was living in the

residence. Meyers testified that when he was on the property in February of 2015

there was spoiled milk in the refrigerator dated from September of the prior year

and there was rotten, raw meat he had to dispose of. Meyers testified that he

believed September of the prior year, 2014, was the last time anyone had been

8
    We assume Meyers meant Chiaverini’s ex-girlfriend.

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living in the residence. Meyers testified that he had the water turned off to

winterize the residence and had the electricity taken out of LJ Farms’ name.

      {¶17} Meyers testified that when he had a mechanic go out and winterize

the home he also had the locks changed. However, Meyers testified that every

time he had someone go out to the property to do something police had been

called by Chiaverini and threats had been made to his people. (Tr. at 28). At the

conclusion of Meyers’ testimony, he rested his case.

      {¶18} Chiaverini then took the stand in his own defense.          Chiaverini

testified that since October of 2011 LJ Farms had continuously been in possession

of the farm house portion of the subject property. Chiaverini testified that he

personally was “maintaining the property on behalf of LJ Farms.” (Tr. at 43).

      {¶19} Chiaverini testified that the electric payment was current when

Meyers had the electricity taken out of LJ Farms’ name. Chiaverini testified that

Meyers changed the locks on the residence and that Chiaverini then notified the

sheriff that the locks were unlawfully changed so Chiaverini changed them back.

Chiaverini testified that Meyers then changed the locks two more times and

Chiaverini notified the sheriff each time the locks were changed.

      {¶20} Chiaverini testified that he had clothes and personal belongings at the

subject property, including a refrigerator, stove, microwave, couch, and a washer

and dryer. In addition, Chiaverini testified that he had made some improvements

to the property. Chiaverini testified that as far as he was concerned, LJ Farms,

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under his management, had never given up possession or control of the property

since the signing of the Land Installment Contract. (Tr. at 47). At the conclusion

of the testimony the municipal court took the matter under advisement.

        {¶21} On August 26, 2015, the municipal court filed a judgment entry on

Meyers’ FED claim against Chiaverini.                       In its entry, the municipal court

determined that it had jurisdiction to hear the FED action because the FED action

was strictly possessory in nature and was merely cumulative to any other remedy

Meyers may have had related to the title of the property. The municipal court

reasoned that even though there was a case pending concerning the subject

property in the Henry County Common Pleas Court, Chiaverini was not named as

a defendant in that case and the FED action only related to the present possession

of the premises, not the title, so the separate case related to the issue of title did not

bar the FED action in this case.9 In doing so, the municipal court cited the Ohio

Supreme Court decisions in State ex. rel Carpenter v. Warren Municipal Court, 61

Ohio St.2d 208 (1980), and State ex rel. Weiss v. Hoover, Judge, et al., 84 Ohio

St.3d 530 (1999). Relying on those cases, the municipal court in this case stated

that, “the Ohio Supreme Court granted writs of procedendo ordering those

Municipal Courts to proceed with [FED] actions when title to such property is

drawn into question in collateral actions in a Common Pleas Court.” (Doc. No. 5).

9
 The record indicates that the municipal court judge in this case was not likely aware that Meyers had filed
an amended complaint in the Henry County Common Pleas Court case making an FED claim against LJ
Farms and adding Chiaverini as a defendant, albeit on the issue of Chiaverini wrongfully retaining Meyers’
“Bobcat.”

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The municipal court thus determined that it did have jurisdiction over the narrow

issue of the FED claim against Chiaverini individually.

      {¶22} The municipal court then determined that Meyers was the owner of

the premises in question, that Chiaverini was in possession of the premises based

on his personal property and his repeated notification of law enforcement when

other individuals, including Meyers and his agents, attempted to enter the

premises.   The municipal court stated that Chiaverini “claims the right to

possession of the premises because he is the manager and/or maintains the

property for LJ Farms, LLC.      There is no other agreement, written or oral,

allowing [Chiaverini] to possess the premises.” (Id.) The municipal court stated

that although LJ Farms may have at one time had the right to possession of the

premises, that contract was terminated by the Henry County Common Pleas Court.

The municipal court reasoned that, “[b]ecause L&J Farms, LLC. has no right to

possession of the premises, the Defendant also has no right to possession as the

manager or maintainer of and for the LLC.” (Id.)

      {¶23} The municipal court stated that it was mindful of the fact that the

Henry County Common Pleas Court’s judgment was not yet a final order, stating,

however, that there was urgency to this case as Meyers had been threatened with

legal action by both Henry County and Harrison Township as a result of the

condition of the property. Based on these findings the municipal court granted

Meyers’ claim for FED.

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         {¶24} On August 28, 2015, Chiaverini filed a “Motion to Vacate Judgment

Entry of August 26, 2015,” pursuant to Civ.R. 60(B), arguing that “the

jurisdictional-priority rule” prevented the municipal court from exercising

jurisdiction in this case.10 Chiaverini’s motion alleged that Meyers had joined

Chiaverini as a defendant alongside LJ Farms in the Henry County Common Pleas

Court case.         Chiaverini attached Meyers’ second amended complaint from the

Henry County Common Pleas Court dated June 17, 2015, which alleged, inter

alia, that Chiaverini wrongfully possessed Meyers’ “Bobcat model 853” and that

LJ Farms unlawfully and forcibly detained possession of the subject property from

Meyers. Chiaverini argued that the LJ Farms was in possession of the subject

property and was the proper party to this action as Chiaverini was only utilizing

the residence pursuant to LJ Farms’ possession. Chiaverini argued that as there


10
   In State ex rel. Dunlap v. Sarko, 135 Ohio St.3d 171, 173-74, 2013-Ohio-67, the Supreme Court of Ohio
explained the jurisdictional-priority rule as follows.

         Under the jurisdictional-priority rule, however, “ ‘[a]s between [state] 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.
         Racing Guild of Ohio v. Morgan, 17 Ohio St.3d 54, 56 (1985), quoting State ex rel.
         Phillips v. Polcar, 50 Ohio St.2d 279 (1977), syllabus.

                  To be sure, 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.” See State ex rel. Judson v. Spahr, 33 Ohio St.3d 111, 113 (1987).

                  Nevertheless, we have also recognized that the jurisdictional-priority rule
         can apply even when the causes of action and relief requested are not exactly the
         same, as long as the actions present part of the same “whole issue.” State ex rel.
         Otten v. Henderson, 129 Ohio St.3d 453, 2011-Ohio-4082, ¶ 29.

Sarko at ¶¶ 9-11.

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Case No. 7-16-01


was already a case pending in the Henry County Common Pleas Court related to

LJ Farms’ possession, and thus Chiaverini’s possession, the common pleas court

case took jurisdictional priority.

        {¶25} On August 31, 2015, Meyers filed a response to Chiaverini’s

“Motion to Vacate Judgment Entry.” In his response, Meyers argued that the FED

claim against Chiaverini individually in this case was not the same action as that

which was pending in the Henry County Common Pleas Court against Chiaverini,

which was a declatory judgment related to the Bobcat and an FED claim against

LJ Farms. Meyers asserted that the jurisdictional priority rule thus did not apply.

(Doc. No. 7).

        {¶26} On August 31, 2015, the municipal court filed an entry denying

Chiaverini’s motion to vacate, finding that based on the caselaw the court had

cited previously, “FED actions in municipal courts can occur simultaneously with

actions concerning the same realty in common pleas courts.” (Doc. No. 8).

        {¶27} Also on August 31, 2015, the Henry County Common Pleas Court

filed an “Order” to “clarify the effect of [its] February 6, 2015 entry.”11 The

document contained the following provisions.

        1.     In the February 6, 2015 entry the Court has recognized that
               L&J Farms, LLC held a right of possession to the real
               property covered by the Land Installment Contract.


11
   It appears that the Napoleon Municipal Court was not made aware of the Henry County Common Pleas
Court’s clarification “Order” until the “Order” was presented at the October 14, 2015 hearing. We present
it here for its proper chronological context.

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       2.   The February 6, 2015 Entry of the Court was an
            interlocutory order, not a final order. The Summary
            Judgment only granted forfeiture of the land installment
            contract which the Court granted in favor of the Plaintiff,
            William Meyers, against L&J Farms, LLC.

       3.   A determination of an order of possession was beyond the
            scope of the Summary Judgment.

       4.   There is currently filed a Forcible Entry and Detention
            action with a hearing set for September 10, 2015 at 2:00
            p.m. filed by William Meyers against L&J Farms, LLC.

(Doc. No. 20).

       {¶28} On September 4, 2015, Chiaverini filed an “Answer and

Counterclaim with Jury Demand.” (Doc. No. 11). Chiaverini sought to deny the

FED claim and damages despite the fact that the municipal court ruled on the FED

action already and denied his 60(B) motion. In his answer Chiaverini asserted a

number of defenses, including that the Napoleon Municipal Court did not have

jurisdiction over the matter, and that Chiaverini was only utilizing the subject

property as a residence pursuant to managing it for LJ Farms. In his counterclaim,

Chiaverini asserted claims for abuse of process and frivolous conduct against

Meyers. Chiaverini also filed a third-party complaint against Meyers’ attorney

Albert Potter for abuse of process and frivolous conduct.        (Doc. No. 11).

Chiaverini requested that he be awarded $10,000 in compensatory damages and

$30,000 in attorney’s fees.




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       {¶29} On September 15, 2015, Meyers filed an answer to the counterclaim

denying any frivolous conduct or abuse of process. (Doc. No. 16). In fact,

Meyers contended that the filing of Chiaverini’s counterclaim was frivolous and

entitled him to sanctions against Chiaverini and his attorney.

       {¶30} On September 15, 2015, Meyers’ attorney filed a response to the

claims against him, denying the claims and asserting multiple defenses, and also

contending that Chiaverini engaged in frivolous conduct. (Doc. No. 17).

       {¶31} On October 14, 2015, a hearing was held. At the hearing, which just

involved the attorneys presenting arguments to the court regarding the pending

motions and the pending litigation, the court stated that Chiaverini had no legal

standing to be on the subject property and that was why it granted the FED. The

court was made aware of the August 31, 2015, clarification “Order” filed in the

Henry County Common Pleas Court case, and the parties argued over whether

attorney Rogers had a conflict of interest in this case and thus could not represent

Chiaverini.

       {¶32} On December 23, 2015, the municipal court filed a judgment entry

determining the remaining claims pending in the case, including Meyers’ second

cause of action for damages related to the FED and Chiaverini’s counterclaim and

third-party complaint for frivolous conduct and abuse of process. In its entry the

municipal court determined that it only had jurisdiction over the narrow issue of

the FED action against Chiaverini. The municipal court determined that it did not

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have jurisdiction over the remaining issues in this case due to the pending

common pleas court case, reasoning as follows.

       As this Court stated in its Judgment Entry dated August 26,
       2015, this Court has jurisdiction over this case on the very
       narrow issue of forcible entry and detention. With that issue
       decided, this Court finds that it does not have jurisdiction over
       the remaining claims in this case due to the prior action filed in
       the Henry County Court of Common Pleas, Case No. 12CV0096
       which involves the same property and parties at issue in this
       case. * * *

            Having found that it does not have jurisdiction over the
       remaining claims in this case, the Court must decide whether the
       Plaintiff’s second cause of action and Defendant’s Counterclaim
       and Third Party Complain[t] must be transferred to the Henry
       County Court of Common Pleas or dismissed.

       * * * In the case at bar, the Defendant’s Third Party Complaint
       exceeds the monetary jurisdiction of this Court. However,
       Plaintiff’s second cause of action, Defendant’s Counterclaim and
       Defendant’s Third Party Complaint all raise issues which the
       municipal court is wholly without jurisdiction to hear,
       regardless of the amount of damages sought. All issues between
       the parties, with the exception of the FED action, did not belong
       in this Court. They belonged in the previously and currently
       pending Henry County Common Pleas Court case. Therefore,
       under the mandatory requirements of Civ.R. 12(H)(3), this
       Court must dismiss the remaining actions.

(Doc. No. 30). Based on its reasoning, the Napoleon Municipal Court dismissed

all remaining claims of the parties.

       {¶33} It is from this judgment that Chiaverini appeals, asserting the

following assignments of error for our review.




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                   ASSIGNMENT OF ERROR 1
      THE NAPOLEON MUNICIPAL COURT ERRED IN ITS
      JUDGMENT ENTRY OF AUG. 2[6], 2015 AS IT LACKED
      JURISDICTION OVER A FED ACTION BROUGHT BY A
      PROPERTY OWNER 1.) AGAINST A TENANT MANAGER
      OF AN LLC THAT HAD A LAND CONTRACT INTEREST IN
      POSSESSION OF THE PREMISES OVER WHICH THE
      COMMON PLEAS COURT HAD ALREADY ASSUMED
      JURISDICTION ON A CLAIM BY THE PROPERTY OWNER
      UNDER R.C. 5313.10, AND 2.) WHEN THE MUNICIPAL
      COURT FED ACTION FAILED TO NAME THE LLC AS A
      PARTY IN THE MUNICIPAL COURT, AND 3.) THE
      STATUTORY ACTION BROUGHT IN THE COMMON
      PLEAS COURT WAS AN EXCLUSIVE REMEDY UNDER
      THE STATUTE.

                   ASSIGNMENT OF ERROR 2
      THE NAPOLEON MUNICIPAL COURT ERRED IN ITS
      JUDGMENT ENTRY OF DEC. 23, 2015 IN DISMISSING MR.
      CHIAVERINI’S COUNTERCLAIM AND THIRD PARTY
      CLAIM, AS MR. CHIAVERINI’S COUNTERCLAIM AND
      THIRD PARTY CLAIM WERE NOT PART OF THE
      COMMON PLEAS COURT CASE AT THE TIME THEY
      WERE ASSERTED, AND THE MUNICIPAL COURT HAD
      JURISDICTION    TO  IMPOSE      SANCTIONS    FOR
      MISCONDUCT BEFORE THE COURT, AND/OR TO
      CERTIFY THE MATTER TO THE COMMON PLEAS
      COURT.

                         II. First Assignment of Error

                                 a. Introduction

      {¶34} In Chiaverini’s first assignment of error, Chiaverini argues that the

issue of the right to possession of the subject property was already pending before

the Henry County Common Pleas Court, and thus the Napoleon Municipal Court

lacked jurisdiction over the matter. Chiaverini also contends that R.C. 5313.08


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and R.C. 5313.1012 govern this matter due to the fact that it is a Land Installment

Contract and the cited statutes created an exclusive remedy, which prevented

Meyers from filing this separate action in municipal court. In addition, Chiaverini

argues that LJ Farms was a necessary party to the action since Chiaverini’s only

right to possession of the subject property was through LJ Farms.

                                              b. Analysis

           {¶35} At the outset of our analysis we note that in Chiaverini’s brief he

concedes that he has no personal right to possession of the subject property.

Chiaverini states that his only right to possess the property was through LJ Farms’

right to possess the property. Chiaverini states that this is precisely the reason that

the litigation in Henry County Common Pleas Court takes jurisdictional priority,

because that litigation would decide his right to possession of the property as

manager for LJ Farms. In the alternative, Chiaverini argues that at the very least

the fact that he only has a right to possess the property through LJ Farms makes LJ

Farms a necessary party to this action.




12
     Revised Code 5313.10 reads,

           The election of the vendor to terminate the land installment contract by an action
           under section 5313.07 or 5313.08 of the Revised Code is an exclusive remedy which
           bars further action on the contract unless the vendee has paid an amount less than
           the fair rental value plus deterioration or destruction of the property occasioned by
           the vendee’s use. In such case the vendor may recover the difference between the
           amount paid by the vendee on the contract and the fair rental value of the property
           plus an amount for the deterioration or destruction of the property occasioned by
           the vendee’s use.


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Case No. 7-16-01


       {¶36} At the FED hearing in this case, Chiaverini testified that he had

personal possessions at the subject property, including a couch, a refrigerator, a

washer and dryer, etc. Meyers testified that he believed the majority of equipment

on the property belonged to Chiaverini individually and not to LJ Farms. Meyers

also testified that he believed there were items on the premises that belonged to

Chiaverini’s ex-girlfriend and to people who LJ Farms had sublet the property to

in late 2014. However, an itemized list, or even a broad summary, of all of the

equipment on the property and who it specifically belonged to was never presented

to the municipal court. Our record is simply unclear on whether Chiaverini only

brought his personal property onto the subject property in his capacity as manager

for LJ Farms or in a personal capacity.

       {¶37} In its entry on the matter, the municipal court determined that it had

limited jurisdiction related to the FED claim against Chiaverini individually,

finding that it did not have jurisdiction over all of the potential issues between the

parties because of the case pending in Henry County Common Pleas Court. The

municipal court then attempted to determine only the FED against Chiaverini in

his individual capacity. However, in its August 26, 2015, judgment entry, the

Napoleon Municipal Court specifically stated that “Because L&J Farms, LLC. has

no right to possession of the premises, the Defendant also has no right to

possession as the manager or maintainer of and for the LLC.” (Emphasis added.)

(Doc. No. 5). The Napoleon Municipal Court thus did make a determination of

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Chiaverini’s right to possession of the subject property, but only in the context of

LJ Farms’ right to possession of the subject property under the Land Installment

Contract, which, according to our record, was directly at issue in the earlier filed

action between Meyers and LJ Farms pending in the Henry County Common Pleas

Court. As this was also the only basis for eviction alleged in the FED complaint,

the municipal court relied exclusively upon its finding that LJ Farms had no

possessory right to the subject property under the Land Installment Contract to

find that Chiaverini had no right to the subject property either personally or

through LJ Farms.

       {¶38} After the Napoleon Municipal Court made its ruling stating that LJ

Farms had no right to possession of the premises, the Henry County Common

Pleas Court filed a clarification “order” stating that the issue of LJ Farms’ right to

possession was yet to be determined. According to the record before us, the Henry

County Common Pleas Court is entirely accurate for multiple reasons: 1) The

Henry County Common Pleas Court’s ruling on summary judgment terminated the

land installment contract but it did not decide LJ Farms’ right to possession,

finding that issues of fact existed related to LJ Farms’ claim for specific

performance; 2) The ruling on summary judgment explicitly stated that it was not

a final appealable order; and 3) The Henry County Common Pleas Court’s

clarification order reiterated that it had not yet determined LJ Farms’ right to

possession, and that it had the matter pending before it. As Chiaverini admits that

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he only had a right to possession of the subject property through LJ Farms, the

litigation in the Henry County Common Pleas Court would necessarily resolve

Chiaverini’s right to possession of the property.

       {¶39} If the Henry County Common Pleas Court granted an FED against

LJ Farms, Chiaverini would be compelled to leave. To any extent Chiaverini

remained in a personal capacity once LJ Farms no longer had a possessory right,

then Chiaverini could be personally removed in a separate action that would not be

directly based on his capacity with LJ Farms. An action at that time could at least

be based upon a final judgment entry from the common pleas court as to

Chiaverini’s status under the land contract instead of attempting to incorporate

interlocutory rulings and documents from a pending case in common pleas court

into a pending FED action in municipal court based on the same land contract.

Moreover, if the Henry County Common Pleas Court denied the FED against LJ

Farms, Chiaverini would seemingly retain some ability to possess the subject

property in whatever capacity he was involved with LJ Farms, which illustrates

how intertwined the two cases are.

       {¶40} Thus we agree with Chiaverini that the Henry County Common Pleas

Court case took jurisdictional priority as it was filed prior to the action in this case

and the municipal court’s decision to order an FED against Chiaverini, particularly

in his capacity for LJ Farms, was error. Therefore, Chiaverini’s first assignment

of error is sustained.

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                        III. Second Assignment of Error

                                  a. Introduction

       {¶41} In Chiaverini’s second assignment of error, he argues that the

municipal court erred by dismissing his counterclaim and third-party complaint.

Specifically, Chiaverini argues that Meyers and his attorney were aware that

Chiaverini only had a right to possession of the subject property through LJ Farms

and that Meyers brought the litigation against Chiaverini individually to “cause

him harm, legal expense, and to unlawfully pressure him to gain advantage in their

litigation with LJ Farms[.]” (Appt.’s Br. at 11-12).

                                    b. Analysis

       {¶42} After the municipal court had already granted Meyers’ FED action

against Chiaverini individually, Chiaverini filed an answer, a counterclaim, and a

third-party complaint against Meyers and his attorney. In the counterclaim and

third-party complaint, Chiaverini contended that Meyers and his attorney had

engaged in frivolous conduct in filing the FED action against Chiaverini

individually and that they had engaged in abuse of process.

       {¶43} In dismissing Chiaverini’s counterclaim and third-party complaint,

the municipal court cited Civ.R. 12(H)(3), which reads, “Whenever it appears by

suggestion of the parties or otherwise that the court lacks jurisdiction on the

subject matter, the court shall dismiss the action.” The municipal court noted that

the counterclaim and third-party complaint exceeded the court’s monetary

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jurisdiction but ultimately the municipal court determined that it lacked subject

matter jurisdiction over the claims due to the pending Henry County Common

Pleas Court case.

        {¶44} Given the totality of the circumstances, we cannot find that the

municipal court erred in this case. First, as we stated in the previous assignment of

error, all of the issues in this case are so intertwined with the common pleas court

action that this case did not belong in the municipal court. Second, we note the

odd and extremely questionable timing of Chiaverini’s counterclaims and his

third-party complaint. Chiaverini did not file the counterclaim and third-party

complaint until after the municipal court had already entered an adverse ruling to

him and denied his Civ.R. 60(B) motion. Third, we question whether Chiaverini’s

counterclaim and third-party complaint even clearly state proper claims for relief,

but to the extent that they do, they are related to the LJ Farms litigation in

common pleas court as the claims are ultimately based solely on the allegation that

“Chiaverini suffered the loss of the lawful use of the premises as a manager of said

property for [LJ] Farms[.]” (Doc. No. 11). Finally, we note, as the municipal

court did, that even if it did have subject matter jurisdiction over the issues, the

amounts alleged exceeded the court’s monetary jurisdiction.13



13
   If the municipal court had decided this case on the basis that the amounts simply exceeded its
jurisdiction, perhaps it would have been compelled, as Chiaverini suggests, to transfer the case to common
pleas court. However, the municipal court did not decide the case on this basis. Moreover, nothing
prevents Chiaverini from filing his claims anew in the common pleas court.

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        {¶45} For these reasons we cannot find that the Napoleon Municipal Court

erred in dismissing Chiaverini’s counterclaims and his third-party complaint.

Therefore his second assignment of error is overruled.

                                 IV. Conclusion

        {¶46} Having found error prejudicial to Chiaverini in his first assignment

of error, but finding no error in Chiaverini’s second assignment of error, the first

assignment of error is sustained and the second assignment of error is overruled.

The judgment of the Napoleon Municipal Court is affirmed in part and reversed in

part.

                                                         Judgment Affirmed in Part
                                                              and Reversed in Part

PRESTON and ROGERS, J.J., concur.

/jlr




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