[Cite as Rickard v. Solley, 188 Ohio App.3d 205, 2010-Ohio-2786.]




                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

RICKARD,                                          )
                                                  )       CASE NO. 09 MA 139
        APPELLEE,                                 )
                                                  )
        v.                                        )                 OPINION
                                                  )
SOLLEY,                                           )
                                                  )
        APPELLANT.                                )


CHARACTER OF PROCEEDINGS:                                 Civil Appeal from Common Pleas
                                                          Court, Case No. 09 CV 1706.


JUDGMENT:                                                 Reversed in part, Vacated in Part
                                                          and Remanded.


APPEARANCES:

Siciliano & Gallito and Robyn R. Gallito, for appellee.

Philip Arbie, for appellant.



JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Gene Donofrio


                                                          Dated: June 10, 2010
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       DEGENARO, Judge.

       {¶1}   This timely appeal comes for consideration upon the trial court record and the

parties' briefs. Defendant-appellant, Lisa Solley, appeals the judgment of the Mahoning

County Common Pleas Court that transferred a breach-of-contract action filed by plaintiff-

appellant, Cynthia Rickard, back to the Youngstown Municipal Court. On appeal, Solley

argues that the common pleas court erred by transferring the case. Solley also claims that

the common pleas court erred by failing to rule on her motion to dismiss Rickard's

complaint.

       {¶2}   Upon review, we conclude that Solley's transfer argument is meritorious. The

transfer was erroneous because the amount of damages Solley requested in her amended

counterclaim exceeds the jurisdictional limits of the municipal court pursuant to R.C.

1901.17. Solley's challenge to the common pleas court's failure to rule on her motion to

dismiss is not ripe for appellate review. Finally, we sua sponte address the fact that the

appealed judgment in this case erroneously rules on a motion filed in a separate but

related case. Accordingly, we reverse the portion of the judgment transferring the case to

the municipal court, vacate the portion of the judgment that rules on a motion not filed in

this case, and remand this cause to the common pleas court for further proceedings

consistent with this court's decision.

                              Facts and Procedural History

       {¶3}   Rickard and Solley were roommates for many years, during which time they

accumulated real and personal property together and shared expenses. At some point,

their relationship ended and Solley moved out of the house the parties' co-owned. Both
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parties retained attorneys to address the numerous issues regarding property division and

finances that arose from the end of the partnership. On July 11, 2006, Solley filed a

separate action in the Mahoning County Common Pleas Court (case No. 06 CV 2621)

against Rickard, seeking partition of real estate co-owned by the parties in Youngstown.

Eventually, the parties entered into a settlement that concerned not only the real estate but

also a number of other issues, including a timeshare in Cancun and a Jeep lease. As part

of this agreement, Solley quit-claimed her interest in the Youngstown property and the

Cancun timeshare to Rickard, and Rickard in turn agreed to pay Solley $15,000. Solley

agreed to assume the Jeep lease. The trial court dismissed the case and entered

judgment for the terms of the settlement agreement on January 8, 2007.

       {¶4}   Over 16 months later, on May 27, 2008, Rickard filed the present action in the

Youngstown Municipal Court, case No. 08CVF02291Y, seeking $12,272.23 from Solley for

various household bills that the parties allegedly accumulated during their relationship.

       {¶5}   On June 25, 2008, Solley filed a motion to dismiss and a motion for

sanctions. Solley argued that all issues relating to the parties' former partnership had been

resolved in the January 8, 2007 settlement agreement in case No. 06 CV 2621.             She

claimed that any issues not raised by Rickard in the other suit were extinguished. Further,

Solley contended that the new action was frivolous and designed to harass her, and

therefore moved for sanctions against Rickard and her attorney pursuant to Civ.R. 11. She

also requested that the court order Rickard to pay her attorney fees and costs. Rickard

responded, asserting that the claim involved in the instant case is distinct from the previous

action, which was for partition of real estate.
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       {¶6}     On July 23, 2008, after being granted leave to plead, Solley filed an answer

and counterclaim. Solley denied owing any money to Rickard and again claimed that the

issues raised in this lawsuit were conclusively settled in the other case.             In her

counterclaim, Solley claimed that Rickard had failed to comply with the terms of the

settlement agreement in the other case by failing to remove Solley's name from the

mortgage on the Youngstown property. She further asserted that Rickard's lawsuit was

wholly frivolous and claimed to have suffered damages and incurred legal expenses as a

result of Rickard's wrongdoing. Solley prayed for judgment in the amount of $15,000,

which is the jurisdictional limit for the municipal court. Rickard filed an answer to Solley's

counterclaim.

       {¶7}     On March 6, 2009, Solley filed a "Supplement to Motion to Dismiss," in which

she attached correspondence between the parties' attorneys, as parol evidence to attempt

to demonstrate that the prior settlement agreement in the partition case encompassed and

therefore extinguished claims raised in the present action. The docket reveals that the

municipal court never ruled on Solley's motion to dismiss or her motion for sanctions.

       {¶8}     On April 9, 2009, without moving for leave, Solley filed a first amended

answer and counterclaim, in which she restated her previous counterclaims involving

breach of the settlement agreement in the partition action and the filing of a frivolous

lawsuit. For each of these counterclaims, she increased the amount of damages sought.

While in her original counterclaim she had prayed for damages totaling exactly $15,000, in

her amended counterclaim she prayed for damages in excess of $25,000 for each of those

claims. She also added a new counterclaim alleging breach of contract for Rickard's
                                                                                        -5-


alleged failure to reimburse Solley for her services as a caregiver for Rickard's mother.

With regard to this counterclaim, Rickard also prayed for damages exceeding $25,000.

         {¶9}   That same day, Solley filed a motion to transfer the case to the common

pleas court, alleging that the amount in controversy exceeded the jurisdictional limit of the

municipal court. Then on April 21, 2009, Solley filed a motion to continue trial, a motion to

compel discovery, and a renewal jury demand.

         {¶10} On April 22, 2009, the municipal court issued a judgment entry transferring

the case to the common pleas court pursuant to Civ.R. 13(J) and R.C. 1901.17, because

the counterclaim exceeded the jurisdictional limit for the municipal court. However,

according to the docket, notice of the transfer was not provided to the parties by the

municipal court. Because of this, Rickard continued to file motions in the municipal court,

including replies to Solley's April 21, 2009 motions. Rickard later refiled these exact

motions with the common pleas court.

         {¶11} According to the common pleas court's docket, the complaint and municipal

court record were filed with the common pleas court on May 8, 2009, and assigned a case

number of 09 CV 1706. On May 19, 2009, the common pleas court sent notice to the

parties confirming that the case had been transferred. Notably, there are no judgment

entries or notations in the docket suggesting that the common pleas court consolidated the

transferred case (09 CV 1706) with the previous common pleas partition action (06 CV

2621).

         {¶12} On June 8, 2009, Rickard filed a motion for leave to move, plead, or respond.

Several days later, she filed a Civ.R. 60(B) motion that challenged the municipal court's
                                                                                        -6-


April 22, 2009 judgment entry transferring the case to the common pleas court. The

common pleas court later denied the Civ.R. 60(B) motion, stating that it had no jurisdiction

to vacate a municipal court order.

       {¶13} Meanwhile, in the separate partition case (06 CV 2621), Solley filed a motion

for relief from the January 8, 2007 settlement agreement. However, instead of ruling on

that motion under that case number, the trial court began issuing decisions and orders

under case No. 09 CV 1706, the instant suit.

       {¶14} For example, on July 9, 2009, a magistrate's decision was issued under case

No. 09 CV 1706 that addresses issues from both cases. It begins by stating: "This matter

came on for hearing before the Magistrate on June 3, 2009 on the Plaintiff's Motion for

Settlement Agreement filed on March 3, 2009." The magistrate's decision proceeds to

overrule the motion for relief from settlement agreement. It also rules that "this case,"

presumably 09 CV 1706, is to be transferred back to the Youngstown Municipal Court.

       {¶15} Solley filed objections to the magistrate's decision in which she contended

that the magistrate had somehow confused the two cases. She noted that the motion for

relief from settlement was not filed in this case, and she claimed that any decision

regarding a different case in a finding pertaining to this case is defective per se. She also

objected to the magistrate's failure to rule on her motion to dismiss Rickard's claims.

Finally, Solley objected to the transfer, as she claimed to have a counterclaim pending that

exceeds the jurisdictional limits of the municipal court.

       {¶16} On August 12, 2009, the common pleas court issued a judgment overruling

the objections to the magistrate's decision, denying the motion for relief from settlement,
                                                                                        -7-


and transferring the case back to the municipal court. Solley filed an appeal the same day.



       {¶17} In a September 30, 2009 judgment entry, this court ordered Solley to file a

jurisdictional memorandum stating a brief case history clarifying the proceedings to date

and the statutory authority for this court to review the August 12, 2009 judgment as a final,

appealable order. Solley filed a jurisdictional memorandum on October 15, 2009, and on

November 19, 2009, this court issued a judgment concluding that the August 12, 2009

order is final and appealable as defined by R.C. 2505.02 and that this court has jurisdiction

to proceed.

                              Transfer to Municipal Court

       {¶18} In Solley's first assignment of error, she asserts:

       {¶19} "The Court of Common Pleas had no authority to transfer the case back to

the Youngstown Municipal Court because the amount of the counterclaim exceeds the

jurisdictional limits of a municipal court as defined by ORC § 1901.17 and Civ.R. 13(J)."

       {¶20} This assignment of error concerns the jurisdiction of the municipal court,

which is a question of law. We review legal issues de novo. E. Sav. Bank v. Bucci, 7th

Dist. No. 08 MA 28, 2008-Ohio-6363, at ¶28. See also Ferron v. Fifth Third Bank, 5th Dist.

Nos. 06CAE110086 and 07CAG020010, 2007-Ohio-3094, at ¶15 (applying de novo

standard of review to an issue involving transfer of a case to municipal court).

       {¶21} R.C. 1901.17 governs the monetary jurisdiction of municipal courts in Ohio

and states:

       {¶22} "A municipal court shall have original jurisdiction only in those cases in which
                                                                                             -8-


the amount claimed by any party, or the appraised value of the personal property sought to

be recovered, does not exceed fifteen thousand dollars, except that this limit does not

apply to the housing division or environmental division of a municipal court.

        {¶23} "Judgment may be rendered in excess of the jurisdictional amount, when the

excess consists of interest, damages for the detention of personal property, or costs

accrued after the commencement of the action."

        {¶24} Civ.R. 13(J) provides the mechanism for transfer to the court of common

pleas in the event that a defendant's counterclaim exceeds the monetary jurisdiction of the

municipal court. "In the event that a counterclaim, cross-claim, or third-party claim exceeds

the jurisdiction of the court, the court shall certify the proceedings in the case to the court of

common pleas." Civ.R. 13(J).

        {¶25} Here, the municipal court certified the proceedings to the common pleas court

pursuant to Civ.R. 13(J) because Solley's amended counterclaim prayed for damages in

excess of $25,000. The common pleas court subsequently transferred the case back to

the municipal court, reasoning that "the original filing and jurisdictional requirements are

met."

        {¶26} Solley contends that this was improper because her amended counterclaim

remained pending at the time of the second transfer and exceeded the jurisdictional limit of

the municipal court. To the contrary, Rickard argues that the transfer was correct because

the municipal court never granted Solley leave to file her amended counterclaim and that

the counterclaim was therefore never properly before the court. Solley counters that by

certifying the record to the common pleas court, the municipal court impliedly granted leave
                                                                                           -9-


and accepted Solley's amended counterclaim. Solley is correct.

       {¶27} Certification to the common pleas court is not automatic when a counterclaim

is filed that prays for damages in excess of the municipal court's jurisdiction. Crisalli v.

Mearini, 8th Dist. No. 84245, 2004-Ohio-6018, at ¶ 2. "Rather, the municipal court should

first determine if the counterclaim satisfies the formalities of the civil rules and states a

claim showing that the party is entitled to relief." Id., citing Hersch v. Debreczeni (1973), 33

Ohio App.2d 235, 238-239, 62 O.O.2d 349, 294 N.E.2d 918. Thus, by certifying the record

to the common pleas court, the municipal court accepted Solley's amended counterclaim.

       {¶28} Once in the common pleas court, the amended counterclaim, which prayed

for damages in excess of $25,000, was never dismissed. A motion to strike the amended

counterclaim was filed, but no ruling thereon was issued by the common pleas court.

Because the amended counterclaim remained pending, it appears that the common pleas

court erred by transferring the case back to the municipal court. The damages alleged in

Solley's amended counterclaim exceed the monetary jurisdiction of the municipal court

pursuant to R.C. 1901.17. Accordingly, Solley's first assignment of error is meritorious.

                                     Motion to Dismiss

       {¶29} Solley's second and third assignments of error are related and therefore will

be discussed together. They assert:

       {¶30} "Because the settlement agreement entered into by the parties in a previous

lawsuit (2006-CV 02621—Mahoning County Court of Common Pleas) was incorporated

into a judgment entry signed by the judge and because the claim Plaintiff/Appellee is

making in the instant suit is one that could have been litigated in the previous lawsuit, the
                                                                                         - 10 -


claims of Plaintiff/Appellee are not allowed under Civ.R. 13(A)."

       {¶31} "Because there is a valid settlement agreement in effect that settles all

existing claims of the parties, the trial court erred in not dismissing the complaint of

Plaintiff/Appellee."

       {¶32} Solley presents several arguments why the common pleas court erred by

failing to grant her motion to dismiss Rickard's complaint. Specifically, she claims that

Rickard should have brought her claim as a compulsory counterclaim in the partition action

and that the settlement agreement in that action extinguishes the claim made by Rickard in

the instant suit.

       {¶33} These issues are not ripe for review. The common pleas court, like the

municipal court before it, never ruled on Solley's motion to dismiss. Rather, the common

pleas court transferred the case back to the municipal court. A claim is not ripe for

appellate review unless the trial court "has arrived at a definitive position on the issue that

inflicts an actual, concrete injury." Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 14-15,

526 N.E.2d 1350. See also Orwick v. Orwick, 7th Dist. No. 04 JE 14, 2005-Ohio-5055, at

¶61 (concluding that assignment of error was not ripe for appellate review where trial court

had issued no judgment ruling on the issue raised). Accordingly, absent any ruling on the

motion to dismiss in this case, it appears that the issue is not ripe for this court's review.

Moreover, even if the common pleas court's failure to rule on the motion could somehow

be taken as an implied denial thereof, the denial of a motion to dismiss is generally not a

final, appealable order. See Polikoff v. Adam (1993), 67 Ohio St.3d 100, 103, 616 N.E.2d

213. Accordingly, Solley's second and third assignments of error are not ripe for appellate
                                                                                        - 11 -


review.

                       Irregularities in the August 12, 2009 Entry

       {¶34} Finally, we sua sponte address the fact that the August 12, 2009 judgment

entry, which is the subject of this appeal, as well as the magistrate's decision that preceded

it, refer to a motion that was not filed in this case. Specifically, the August 12, 2009 order

states: "The Plaintiff's Motion for Relief from Settlement Agreement filed on March 3, 2009

is denied." However, the motion for relief from settlement agreement was not filed in the

instant case. Rather, it was filed by Solley, who was the plaintiff in the separate partition

case (06 CV 2621). There is no indication that the trial court consolidated the present case

(09 CV 1706) with the partition case (06 CV 2621) upon transfer of the present case to the

common pleas court. Although it would have been reasonable to consolidate the two

cases, there is no judgment entry doing so in either case. See Civ.R. 42(A)(1). Although

not assigned as an error here, this issue was raised by Solley at the trial court level.

       {¶35} The common pleas court acted without authority when it ruled in this case on

Solley’s motion filed in the partition case, absent a consolidation order. See State ex rel.

Gains v. Go Go Girls Cabaret, Inc., 2010-Ohio-870, at ¶37 (holding that trial court lacked

authority in a civil nuisance case to order the return of property seized pursuant to a search

warrant in a separate but related criminal case). Pursuant to App.R. 12(A), we exercise

our discretion to sua sponte notice this error. Accordingly, we vacate the portion of the

August 12, 2009 entry that rules on Solley’s motion for relief from the settlement

agreement in the partition action. That motion should be properly resolved in the context of

the partition case, which is not the subject of this appeal.
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                                       Conclusion

       {¶36} Solley's first assignment of error is meritorious. Since Solley's amended

counterclaim prayed for damages in excess of $25,000, the common pleas court erred by

transferring the case. Solley's second and third assignments of error are not ripe for

appellate review. Additionally, we exercise our discretion to sua sponte notice an error

contained in the appealed judgment, namely that a portion thereof rules on a motion filed in

a completely separate, although related case. Accordingly, we reverse the portion of the

judgment transferring the case to the municipal court, vacate the portion of the judgment

that rules on a motion not filed in this case, and remand this cause to the common pleas

court for further proceedings consistent with this court's decision.

                                                                       Judgment accordingly.

       VUKOVICH, P.J., and DONOFRIO, J., concur.

                                _____________________
