[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Consortium for Economic & Community Dev. For Hough Ward 7 v. Russo, Slip Opinion
No. 2017-Ohio-8133.]




                                           NOTICE
       This slip opinion is subject to formal revision before it is published in an
       advance sheet of the Ohio Official Reports. Readers are requested to
       promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
       South Front Street, Columbus, Ohio 43215, of any typographical or other
       formal errors in the opinion, in order that corrections may be made before
       the opinion is published.



                           SLIP OPINION NO. 2017-OHIO-8133
    THE STATE OF OHIO EX REL. CONSORTIUM FOR ECONOMIC AND COMMUNITY
       DEVELOPMENT FOR HOUGH WARD 7, APPELLANT, v. RUSSO,1 JUDGE,
                                          APPELLEE.
    [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Consortium for Economic & Community Dev. For
           Hough Ward 7 v. Russo, Slip Opinion No. 2017-Ohio-8133.]
Prohibition—Jurisdictional-priority rule—The jurisdictional-priority rule has no
         applicability when the cases are pending in the same court—Court of
         appeals’ denial of writ affirmed.
       (No. 2016-1183—Submitted June 6, 2017—Decided October 11, 2017.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 103657,
                                      2016-Ohio-4704.
                                     ________________


1
  Judge Richard McMonagle presided over one of the underlying matters until November 8, 2016,
which was after the appeal to this court was filed. Appellee, Judge John Russo, was then assigned
to the case. Thus, under S.Ct.Prac.R. 4.06(B), Judge Russo is automatically substituted as a party
to this action.
                             SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} Appellant, Consortium for Economic and Community Development
for Hough Ward 7 (“Consortium”), filed a complaint in the Eighth District Court
of Appeals for a writ of prohibition against Cuyahoga County Common Pleas Court
Judge Richard McMonagle. The court of appeals denied the writ. We affirm.
Background
       {¶ 2} Consortium made the following factual allegations in its complaint,
which Judge McMonagle did not dispute.
       {¶ 3} Consortium owns real property identified as PPN 119-05-006 (“the
parcel”) in Cuyahoga County. The parcel is adjacent to property owned by the Oak
Leadership Institute.
       {¶ 4} On August 30, 2013, Oak Leadership filed an action in Cuyahoga
County Common Pleas Court to quiet title to the parcel. Cuyahoga C.P. case No.
CV-13-813027 (“the quiet-title lawsuit”). Judge McMonagle was assigned to
preside over the quiet-title lawsuit. On December 12, 2013, a tax-foreclosure suit
relating to the parcel was filed in Cuyahoga County Common Pleas Court.
Cuyahoga C.P. case No. CV-13-818759 (“the foreclosure lawsuit”).
       {¶ 5} The issue in this case is the proper application of the jurisdictional-
priority rule. Consortium sought a writ of prohibition against Judge McMonagle
under the theory that even though the quiet-title lawsuit was filed first, the
foreclosure lawsuit had jurisdictional priority because it was first to perfect service
of process over all the interested parties. The parties filed cross-motions for
summary judgment.
       {¶ 6} The court of appeals granted summary judgment in favor of Judge
McMonagle and denied the writ. The court held that the jurisdictional-priority rule
does not apply to cases filed in the same division of the same court. 2016-Ohio-
4704, 68 N.E.2d 125, ¶ 18. In the alternative, the court rejected Consortium’s
theory of jurisdictional priority and held that whichever case was first to perfect




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                                January Term, 2017




service over any one defendant had priority over the other. Id. at ¶ 20. Consortium
timely appealed.
Analysis
       {¶ 7} There are three elements necessary for a writ of prohibition to issue:
the exercise of judicial power, the lack of authority for the exercise of that power,
and the lack of an adequate remedy in the ordinary course of law. State ex rel.
Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13.
However, if the absence of jurisdiction is patent and unambiguous, a petitioner need
not establish the third prong, the lack of an adequate remedy at law. State ex rel.
Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889
N.E.2d 500, ¶ 15.
       {¶ 8} The jurisdictional-priority rule provides that as between state courts
of concurrent jurisdiction, the tribunal whose power is first invoked acquires
exclusive jurisdiction to adjudicate the whole issue and settle the rights of the
parties. State ex rel. Dunlap v. Sarko, 135 Ohio St.3d 171, 2013-Ohio-67, 985
N.E.2d 450, ¶ 9. When it applies, the judge in the second case patently and
unambiguously lacks jurisdiction by operation of the rule, and therefore,
prohibition is an available remedy. See State ex rel. Lee v. Trumbull Cty. Probate
Ct., 83 Ohio St.3d 369, 374, 700 N.E.2d 4 (1998).
       {¶ 9} Before today, we have not expressly decided whether the rule can
apply to two cases pending in the same court. Intermediate courts of appeals have
consistently held that “the jurisdictional priority rule contemplates cases pending
in two different courts of concurrent jurisdiction—not two cases filed in the same
court.” Fenner v. Kinney, 10th Dist. Franklin No. 02AP-749, 2003-Ohio-989, ¶ 14
(holding that the jurisdictional-priority rule does not apply to two actions pending




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                                  SUPREME COURT OF OHIO




in the Franklin County Municipal Court).2                   In its first proposition of law,
Consortium urges us to reject a same-jurisdiction exception to the rule.
         {¶ 10} The jurisdictional-priority rule exists to promote judicial economy
and avoid inconsistent results. Sarko at ¶ 12. But if two actions are pending in the
same court before different judges, the parties have a method for vindicating those
interests that is not available when the cases are filed in different courts—a motion
for consolidation. Therefore, the appellate courts have been correct to recognize
that the rule has no applicability when the cases are pending in the same court.
         {¶ 11} Consortium responds by citing our decision in State ex rel. Vanni v.
McMonagle, 137 Ohio St.3d 568, 2013-Ohio-5187, 2 N.E.3d 243. At issue in
Vanni were two actions filed in the Cuyahoga County Court of Common Pleas. The
appellate court refused to grant a writ of prohibition on the ground that the parties
in the two cases were not the same and therefore the jurisdictional-priority rule was
not applicable. On appeal, we affirmed, but for a different reason. We held that
the jurisdictional-priority rule requires that both actions be currently pending, but
in Vanni, a final judgment had been entered in the first action before the second
action was filed. Id. at ¶ 8-11.
         {¶ 12} The underlying cases in Vanni were filed in the same court, and that
might have been a basis for our decision, but we did not address that issue.
Consortium attaches undue significance to that choice.                      Because there was
sufficient reason to deny the writ—one of the cases was not, in fact, pending—there



2
  See also ProMedica Fed. Credit Union v. Wardrop, 6th Dist. Lucas No. L-13-1075, 2014-Ohio-
965, ¶ 15 (jurisdictional-priority rule does not apply to two cases pending in the same court of
common pleas); Third Fed. Sav. Bank v. Cox, 8th Dist. Cuyahoga No. 93950, 2010-Ohio-4133,
¶ 11 (same); Jarvis v. Wells Fargo Bank, N.A., 7th Dist. Columbiana No. 09 CO 6, 2010-Ohio-3283,
¶ 16 (same); State ex rel. Republic Servs. of Ohio II, L.L.C. v. Pike Twp. Bd. of Trustees, 5th Dist.
Stark Nos. 2006 CA 00153 and 2006 CA 00172, 2007-Ohio-2086, ¶ 47 (same).




                                                 4
                               January Term, 2017




was simply no reason to discuss additional bases for rejecting the petition. Vanni
certainly cannot be read as a rejection of the “same jurisdiction” exception.
       {¶ 13} Given our resolution of Consortium’s first proposition of law, we
find it unnecessary to address the remaining arguments of the parties.
       {¶ 14} Because we hold that the jurisdictional-priority rule has no
applicability when the cases are pending in the same court, we affirm the judgment
of the court of appeals.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, FRENCH, O’NEILL, FISCHER, and
DEWINE, JJ., concur.
       KENNEDY, J., concurs in judgment only.
                               _________________
       Singerman, Mills, Desberg & Kauntz Co., L.P.A., and Christopher
O’Connell, for appellant.
       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Charles
E. Hannan, Assistant Prosecuting Attorney, for appellee.
                               _________________




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