[Cite as Mustafa v. Al-Bayer, 2020-Ohio-1315.]




                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




 ABDELKAREEM M. MUSTAFA, et al.,                 :     CASE NO. CA2019-03-049

         Appellees,                              :            OPINION
                                                               4/6/2020
                                                 :
   - vs -
                                                 :

 DONALD AL-BAYER,                                :

         Appellant.                              :




                     CIVIL APPEAL FROM FAIRFIELD MUNICIPAL COURT
                                 Case No. 2018 SC I 00057



Donald Al-Bayer, 7302 Cascade Drive, West Chester, Ohio 45069, appellant, pro se

Law Office of Brian M. Garvine LLC, Brian M. Garvine, 5 East Long Street, Suite 1100,
Columbus, Ohio 43215, for appellees




        M. POWELL, P.J.

        {¶ 1} Appellant, Donald Al-Bayer, appeals a decision of the Fairfield Municipal

Court granting a $2,204.50 judgment in favor of appellee, Abdelkareem Mustafa.

        {¶ 2} Mustafa worked as a truck driver for appellant from January 2018 to July 24,

2018. On August 7, 2018, Mustafa filed a complaint in the Fairfield Municipal Court, Small
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Claims Division, alleging that appellant had failed to pay him for his services and seeking a

$6,000 judgment.      The matter was initially set for a hearing before a magistrate on

September 5, 2018. However, the hearing was continued to September 26, 2018, with

orders that the rescheduled date would be vacated were the case to settle or be transferred

to the civil docket. The magistrate's order further provided that the parties could amend

their claims or file counterclaims and/or motions no later than September 19, 2018.

       {¶ 3} On September 7, 2018, appellant filed a motion captioned "Defendant's

Motion to Transfer to the Regular Docket." The motion sought additional time to file an

answer, indicated appellant's intent "to file counterclaims which will exceed damages limit

of the small claims division," and "request[ed] an order from [the] Court, pursuant to ORC

Section 1925.10, transferring this matter from the small claims division to the regular

docket." The magistrate never ruled upon the motion.

       {¶ 4} That same day, appellant also answered the complaint and asserted five

counterclaims against Mustafa, seeking damages in excess of $1,000,000. Specifically,

appellant alleged (1) conversion of a tractor and trailer, (2) damages to a passenger vehicle,

(3) loss of income due to engine damage to a tractor, (4) fraud for forging a notary stamp

on a contract, and (5) libel, infliction of emotional distress, and perjury. The pleading further

alleged that "[p]roper venue for this counterclaim is Butler County Common Pleas Court

because counterclaims exceed $6000 and, therefore, should be transferred from Small

Claims Court under [Civ.R.] 3 and 4.3." Appellant's prayer for relief reiterated his request

for an "order transferring jurisdiction to Common Pleas Court."

       {¶ 5} On September 26, 2018, the magistrate sua sponte dismissed appellant's

counterclaims on the ground they exceeded the monetary jurisdiction of both the municipal

court and its small claims division; further, "no motion to transfer to common pleas [was]

filed." On October 5, 2018, appellant moved to transfer the case to the Butler County

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Common Pleas Court.       He further filed a motion to reconsider the dismissal of his

counterclaims, stating he had filed a motion to transfer on September 7, 2018, had

requested a transfer within his counterclaims, and was not aware a separate motion to

transfer was necessary. The magistrate denied both motions.

       {¶ 6} The matter proceeded to a trial on Mustafa's complaint. Both parties testified

on their own behalf. On November 8, 2018, the magistrate recommended judgment in favor

of Mustafa and against appellant in the amount of $2,204.50. Appellant filed objections to

the magistrate's decision.    On February 14, 2019, the municipal court overruled the

objections and granted a $2,204.50 judgment in favor of Mustafa.

       {¶ 7} Appellant now appeals, raising the following four assignments of error.

However, this court will only address the second assignment of error as it is dispositive of

this appeal.

       {¶ 8} Assignment of Error No. 1:

       {¶ 9} THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO

RECONSIDER AS UNTIMELY.

       {¶ 10} Assignment of Error No. 2:

       {¶ 11} THE     TRIAL     COURT       ERRED      BY     DENYING       APPELLANT'S

COUNTERCLAIMS.

       {¶ 12} Assignment of Error No. 3:

       {¶ 13} THE TRIAL COURT ERRED IN PROCEEDING WITH TRIAL WITHOUT

SECOND PLAINTIFF BEING PRESENT.

       {¶ 14} Assignment of Error No. 4:

       {¶ 15} THE TRIAL COURT ERRED IN GRANTING JUDGMENT TO PLAINTIFF

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND STATEMENTS BY

WITNESS PRESENTED BY PARTIES.

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       {¶ 16} In his second assignment of error, appellant argues that the small claims court

erred in dismissing his counterclaims. Appellant asserts that he properly requested that his

counterclaims be transferred to the common pleas court both in his September 7, 2018

answer and motion to transfer. Appellant further asserts that the small claims court could

have sua sponte transferred his counterclaims to the common pleas court because they

exceeded the monetary jurisdiction of the small claims court.

       {¶ 17} At the outset, we find no error in the dismissal of appellant's counterclaim for

libel, infliction of emotional distress, and perjury. Pursuant to R.C. 1925.02(A)(2)(a)(i), a

small claims court does not have jurisdiction to hear such claims, even ones within the

monetary jurisdiction of the small claims court. Lin v. Reid, 11 Ohio App.3d 232, 235-236

(10th Dist.1983); Popp v. Woodruff, 12th Dist. Clermont No. CA84-04-028, 1984 Ohio App.

LEXIS 10977 (Sep. 28, 1984); Freeman v. Todd Deegan Mgmt., Inc., 8th Dist. Cuyahoga

No. 107443, 2019-Ohio-1530. Furthermore, such counterclaims, when filed in a small

claims court, can only be dismissed and can neither be transferred nor certified. That is

because

              The parties to an action cannot waive the jurisdiction of the court
              as to subject matter. [A] complaint or counterclaim based on
              libel or slander in a court without jurisdiction of the subject
              matter is properly subject only to a motion to dismiss and not to
              a motion to certify. If the small claims division is totally without
              jurisdiction, it is without authority to take jurisdiction for the
              purpose of certification. It must simply dismiss for lack of
              jurisdiction.

Lin at 236.

       {¶ 18} We find, however, that the small claims court erred in both dismissing

appellant's remaining counterclaims and requiring that a motion to transfer the

counterclaims to a court of proper jurisdiction be filed. We further find that the court below

erred in failing to transfer the case to the Butler County Court of Common Pleas.

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       {¶ 19} Pursuant to R.C. 1925.02(A), a small claims division of a municipal court has

jurisdiction in civil actions for the recovery of amounts not exceeding $6,000, exclusive of

interest and costs. Pursuant to R.C. 1925.10(A), however, "[a] civil action that is duly

entered on the docket of the small claims division shall be transferred to the regular docket

of the court upon the motion of the court made at any stage of the civil action or by the filing

of a counterclaim or cross-claim for more than six thousand dollars." (Emphasis added.)

R.C. 1901.22(E) similarly provides that when a counterclaim is filed in a case before a

municipal court in excess of its monetary jurisdiction, "the judge shall certify the proceedings

in the case to the court of common pleas[.]" (Emphasis added.) See R.C. 1901.17(A) (a

municipal court has jurisdiction over cases in which the amount claimed by any party does

not exceed $15,000).

       {¶ 20} Contrary to the small claims court's finding, R.C. 1925.10(A) does not require

the filing of a motion to transfer to the regular docket when a counterclaim seeking a

judgment in excess of $6,000 is filed. In such instances, the small claims court "shall"

transfer the matter to the regular docket. As we have held, "the language of R.C. 1925.10

is clear and unambiguous and should be applied as written. * * * Further, the provisions of

R.C. 1925.10 are not discretionary.       The use of the word 'shall' makes the statute

mandatory, there being no other legislative intent required." Deaton v. McIntosh, 82 Ohio

App.3d 688, 690-691 (12th Dist.1992).

       {¶ 21} Moreover, Civ.R. 13(J) provides that "[i]n the event that a counterclaim * * *

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

the court of common pleas." (Emphasis added.) Pursuant to R.C. 1925.16, the Ohio Rules

of Civil Procedure generally apply to proceedings in the small claims court to the extent they

are not inconsistent with the procedures provided in R.C. Chapter 1925. See Tennant v.

Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477; Shockles v. Beatley, 10th Dist.

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Franklin No. 95APG05-665, 1995 Ohio App. LEXIS 5630 (Dec. 19, 1995). Similar to R.C.

1925.10(A) and 1901.22(E), Civ.R. 13(J) plainly requires that a case be transferred to the

common pleas court whenever a counterclaim exceeds the monetary jurisdiction of a court,

regardless of whether a motion to transfer has been filed. See State ex rel. Natl. Emp.

Benefit Servs., Inc. v. Cuyahoga Cty. Court of Common Pleas, 49 Ohio St.3d 49 (1990).

       {¶ 22} Appellant's counterclaims for conversion, damages to a passenger vehicle,

loss of income, and fraud sought a judgment for over $87,000 and stated sufficient facts to

ascertain the monetary relief requested.       Because these counterclaims exceeded the

jurisdiction of the small claims court, appellant was not required to file a motion to transfer

and the magistrate's dismissal of the counterclaims on that ground was error. Furthermore,

given the amount prayed for in the counterclaims, the magistrate was required to transfer

the case pursuant to R.C. 1925.10(A) and Civ.R. 13(J) and erred in failing to do so.

       {¶ 23} R.C. 1925.05 provides that "[i]f you believe you have a claim against the

plaintiff, you must file a counterclaim with the court and must serve the plaintiff and all other

parties with a copy of the counterclaim at least seven days prior to the date of the trial of

the plaintiff's claim." Civ.R. 13(A) governs compulsory counterclaims and is applicable to

small claims proceedings. Thirion v. Tutoki, 94 Ohio Misc. 2d 77, 78 (M.C.1998).

       {¶ 24} "Civ.R. 13(A) requires all existing claims between opposing parties that arise

out of the same transaction or occurrence to be litigated in a single lawsuit, regardless of

which party initiates the lawsuit." Rettig Ents., Inc. v. Koehler, 68 Ohio St.3d 274, 278,

1994-Ohio-127. Pursuant to Civ.R. 13(A), "multiple claims are compulsory counterclaims

where they 'involve many of the same factual issues, or the same factual and legal issues,

or where they are offshoots of the same basic controversy between the parties.'" Id. at 279,

quoting Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 634 (3d Cir.1961).

Appellant's counterclaims for conversion, damages to a passenger vehicle, loss of income,

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and fraud all arose from the employment relationship between appellant and Mustafa which

is the subject of Mustafa's claims against appellant.       They are therefore compulsory

counterclaims.

       {¶ 25} Because appellant's compulsory counterclaims exceeded $15,000, the court

below was without jurisdiction to hear the case. Thompson v. Hansford, 9th Dist. Summit

No. 29226, 2019-Ohio-2612, ¶ 14. A judgment rendered by a court which has no jurisdiction

over the subject matter is void. Patton v. Diemer, 35 Ohio St.3d 68, 70 (1988); Pratts v.

Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980. "It is as though such proceedings never

occurred; the judgment is a mere nullity and subject to vacation through the inherent powers

possessed by the courts of Ohio." M&T Constr. & Excavating, Inc. v. Koe-Krompecher, 4th

Dist. Gallia No. 91CA10, 1991 Ohio App. LEXIS 5868, *6 (Dec. 3, 1991), citing Patton at

paragraph four of the syllabus.

       {¶ 26} Appellant's second assignment of error is accordingly sustained. Because

our resolution of the second assignment of error renders the remaining assignments of error

moot, we decline to address them. Thompson at ¶ 14.

       {¶ 27} The judgment of the Fairfield Municipal Court is vacated, and this case is

remanded to the Fairfield Municipal Court with instructions to certify this case to the Butler

County Court of Common Pleas for further proceedings. Harris v. Holcomb, 9th Dist.

Summit No. 13359, 1988 Ohio App. LEXIS 1268, *3-4 (Mar. 30, 1988).

       {¶ 28} Judgment vacated and cause remanded.


       S. POWELL and RINGLAND, JJ., concur.




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