Opinion
No. 85-702
Decided June 11, 1986.
Civil procedure — Voluntary dismissal of cause after filing of counterclaim but before service of counterclaim — Trial court may retain jurisdiction of case, when — Civ. R. 41, construed — Writ of prohibition denied.
APPEAL from the Court of Appeals for Cuyahoga County.
This case comes to us upon an appeal from the dismissal of a complaint for a writ of prohibition.
In December 1984, the city of Middleburg Heights ("city") filed an action in the Cuyahoga County Court of Common Pleas against three defendants: Dome Energicorp, the Cuyahoga County Agricultural Society and the Cuyahoga County Board of Commissioners. The city asked for preliminary and permanent injunctions to prevent Dome Energicorp from drilling a gas well on the Cuyahoga County Fairgrounds, which are located within the city's boundaries. The city alleged that the proposed drilling of a gas well was contrary to the zoning code of Middleburg Heights.
Apparently, the Cuyahoga County Agricultural Society, in conjunction with the Cuyahoga County Commissioners, is the owner of the fairgrounds.
After a hearing, the trial court on January 17, 1985 denied a preliminary injunction. A week later, on January 22, Dome Energicorp filed an answer and a counterclaim. One minute later, the city filed a voluntary dismissal of its action "without prejudice pursuant to Ohio Rule of Civil Procedure 41(A)(1)." The next day, the parties met with the trial judge, respondent Lloyd O. Brown, in chambers. Judge Brown apparently refused to recognize the city's voluntary dismissal. Dome Energicorp then requested a preliminary injunction on a matter raised in its counterclaim, and so a hearing on that request was scheduled for January 28, 1985.
The city did not appear for the hearing, but instead filed a complaint in prohibition against Judge Brown in the court of appeals. The city alleged that the trial court lost jurisdiction of the case at the time the city filed its voluntary dismissal in the underlying action. While admitting the counterclaim was filed one minute before the dismissal, the city argued that Civ. R. 41(A)(1) provides for a voluntary dismissal "unless a counterclaim * * * has been served by the defendant." (Emphasis added.) The city contended that since service had not been effected at the time of its dismissal, no action was pending before the trial court and thus the judge was without authority to retain jurisdiction. Dome Energicorp, as amicus curiae in the court of appeals only, urged dismissal of the complaint in prohibition.
On February 11, 1985, Dome Energicorp filed a complaint for declaratory and injunctive relief in the common pleas court. In this new action, Dome Energicorp asked the court to restrain the city from refusing to issue permits for oil and gas well drilling, for a declaration that the zoning code of Middleburg Heights did not prohibit drilling, and for an order forbidding the city from prosecuting Dome Energicorp for any violations of the zoning code. This new case likewise was assigned to Judge Lloyd Brown.
In its decision in the case at bar, the court of appeals said: "As matters now stand an action involving the same parties and the same issues of the right to drill for wells on the * * * fairgrounds in the City of Middleburg Heights is pending in the trial court. The relator in the action in this court by dismissing below has achieved its object of not proceeding as the plaintiff although it is still a principal party in the controversy and is afforded a full opportunity to represent the interest of the City. The respondent has jurisdiction over the same parties and issues but this time in another case. In the interest of judicial economy and pretrial expediency, this court sua sponte dismisses this case."
An appeal as of right brings the matter to this court for review.
James N. Walters III and Frank J. Groh-Wargo, for appellant.
John T. Corrigan, prosecuting attorney, and Ralph P. Sobieski, for appellee.
Although the court of appeals dismissed the complaint in prohibition, we consider the issues it raises on the merits. "In an appeal as of right from a judgment of the court of appeals involving an extraordinary writ, this court will consider the case as if the action originally had been filed here." In re Petition for Mallory (1985), 17 Ohio St.3d 34.
The pertinent part of Civ. R. 41 reads:
"(A) Voluntary dismissal: effect thereof.
"(1) By plaintiff; by stipulation. Subject to the provisions of Rule 23(E) and Rule 66, an action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by the defendant or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court, an action based on or including the same claim.
"(2) By order of court. Except as provided in subsection (1) an action shall not be dismissed at the plaintiff's instance except upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice." (Emphasis added.)
Where it does not otherwise affirmatively appear from the record, it will be presumed that a court of general jurisdiction lawfully acquired and exercised its jurisdiction. Cf. Paulin v. Sparrow (1915), 91 Ohio St. 279, paragraph one of the syllabus. A court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction, and the party challenging its jurisdiction has a remedy via appeal from an adverse holding of the court that it has such jurisdiction, and may not maintain a proceeding in prohibition to prevent the prosecution of such action. Bobb v. Marchant (1984), 14 Ohio St.3d 1, 4; State, ex rel. Miller, v. Court (1949), 151 Ohio St. 397 [39 O.O. 232], paragraph three of the syllabus.
In the present case, we find that Civ. R. 41(A)(2) applies. In the underlying action, defendant Dome Energicorp pleaded its counterclaim by filing it prior to the city's attempted dismissal one minute later. Dome Energicorp "objected" to the city's dismissal, we believe, when it entered an amicus curiae appearance in the instant action in the court of appeals urging denial of the writ. Because of the presumption of regularity in the trial court's proceedings, and our deference to its determination of its own jurisdiction, we assume, absent evidence to the contrary, that Dome Energicorp's counterclaim cannot be independently adjudicated if severed from the city's complaint.
Regrettably, neither party provided this court with a copy of Dome Energicorp's counterclaim filed in the underlying action. We are therefore unable to determine, with certainty, whether the counterclaim and the complaint raised issues so similar and intertwined that they could not be severed for autonomous consideration.
In State, ex rel. McGraw, v. Gorman (1985), 17 Ohio St.3d 147, at 150, we noted that "there are three essentials for issuance of a writ of prohibition: the court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; the exercise of that power must be unauthorized by law; and it must appear that the denial of the writ would cause injury for which there is no other adequate remedy in the ordinary course of the law."
The city has satisfied only the first of the three conditions. The city has not, however, shown that Judge Brown is exercising unauthorized power. Likewise the city has not demonstrated that appeal would not be adequate to test the jurisdictional issue and to prevent any injury it might sustain. The extraordinary writ of prohibition is unwarranted in this case.
The judgment of the court of appeals is modified and the writ is denied.
Judgment modified and writ denied.
CELEBREZZE, C.J., LOCHER, HOLMES, C. BROWN and DOUGLAS, JJ., concur.
WRIGHT, J., concurs in judgment only.
SWEENEY, J., not participating.