Opinion
No. 92 CVF 6118.
Decided July 6, 1992.
Robert D. Logsdon, for plaintiffs Tangee Thomas and Tommie Thomas.
Theodore Frericks IV, for defendant Holiday Inn of Lima.
On June 5, 1992, this cause came on before the court upon the motion of the defendant to transfer this action to the Lima Municipal Court. The plaintiffs were present and represented by attorney Robert D. Logsdon, and the defendant was represented by Theodore Frericks IV. Thereupon, testimony was heard and evidence taken. In addition, affidavits in support of the motion to transfer were filed on behalf of the defendant.
The evidence reveals that the plaintiffs, who are professional entertainers, entered into a series of written agreements with the defendant to provide entertainment at the lounge of the Holiday Inn located in Lima, Ohio. Copies of the written contracts are attached to the amended complaint in this action. The plaintiffs allege that they were willing to fulfill their contractual duties; however, the defendant, it is alleged, failed to fulfill its contractual obligations.
The plaintiffs are residents of the city of Marion, and the defendant is located in Lima. It is undisputed that the written contracts were signed in Lima, and that the entertainment services were to be provided at defendant's place of business in Lima. The plaintiffs have filed this action in the Marion Municipal Court, and the defendant seeks to remove this action to the Lima Municipal Court, alleging that the Marion Municipal Court is an improper venue for this action.
In opposition to this motion, the plaintiffs have testified that certain negotiations by telephone were conducted while the plaintiffs were in Marion and representatives of the defendant were in Lima. In addition, the plaintiffs testified that they performed some practice sessions at their residence in Marion; however, there was no testimony to the effect that the defendant required the plaintiffs to do any specific rehearsals in Marion. The defendant has presented an affidavit by its manager expressly denying that any negotiations took place by telephone between the plaintiffs and the defendant.
Based upon the above facts, the court finds that the Marion Municipal Court is not a proper venue for this action. Even assuming that the testimony of the plaintiffs as to negotiations is correct, mere preliminary negotiations between the plaintiffs and the defendant, and practice sessions not specifically required of the plaintiffs by the defendant to be held in the city of Marion, do not constitute sufficient substantial or close contact by the defendant with Marion County such as to provide venue pursuant to Civ.R. 3(B)(3). Civ.R. 3(B)(3) allows proper venue within the territorial limits of a municipal court in which the defendant conducted activity which gave rise to the claim for relief. In addition, the court finds that the location in which the claim for relief of the plaintiffs arose is in Lima, Ohio, which is within the territorial jurisdiction of the Lima Municipal Court. See R.C. 1901.02. Venue in the Marion Municipal Court is therefore also not proper under Civ.R. 3(B)(6), or under any other provision of Civ.R. 3(B).
It is, therefore, the finding of the court that the defendant is correct in its argument that the Marion Municipal Court is not the proper venue for this action.
However, the court finds a more fundamental question needs to be addressed, namely, whether this court has jurisdiction of the subject matter in this particular case. Civ.R. 12(H)(3) provides that whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. Ryan v. Andrews (1976), 50 Ohio App.2d 72, 4 O.O.3d 49, 361 N.E.2d 1086.
The issue of whether this court has jurisdiction in this action arises because of the language contained in R.C. 1901.19(A)(4). This statute provides as follows:
"Subject to the monetary jurisdiction of municipal courts as set forth in section 1901.17 of the Revised Code, a municipal court and a housing or environmental division of a municipal court have jurisdiction within its territory in all of the following actions or proceedings and to perform all of the following functions:
"* * *
"(4) In any civil action or proceeding at law in which the subject matter of the action or proceedings is located within the territory or when the defendant or when any of the defendants resides or is served with summons within the territory."
Prior to 1987, most of this language was found in former R.C. 1901.19(D).
While the above language speaks clearly of jurisdiction of the municipal court, it appears that courts across the state have had substantial problems determining whether jurisdiction or venue is actually dealt with by this language.
Subject-matter jurisdiction of a court connotes the power to hear and decide the case upon its merits; venue connotes the locality where the suit should be heard. Morrison v. Steiner (1972), 32 Ohio St.2d 86, 61 O.O.2d 335, 290 N.E.2d 841; Fireproof Constr., Inc. v. Brenner-Bell, Inc. (1949), 152 Ohio St. 347, 40 O.O. 375, 89 N.E.2d 472.
Some courts in Ohio have held that the language found in present R.C. 1901.19(A)(4) refers to jurisdiction. Melamed v. Catalano (M.C. 1981), 20 O.O.3d 428, held that a municipal court has subject-matter jurisdiction of an action only if the monetary jurisdictional limit of $10,000 is not exceeded, pursuant to R.C. 1901.17; the action falls within one of the categories of actions the court is authorized to hear and determine under R.C. 1901.18; and, finally, that the action has at least one of the three contacts with the territorial limits of the court, which contacts are presently found in R.C. 1901.19(A)(4). The court further held that if an action satisfies the first two requirements, but fails to satisfy the third requirement, the municipal court does not have subject-matter jurisdiction of the action.
In the case of Santiago v. S.S. Kresge Co. (C.P. 1976), 2 O.O.3d 54, it was stated at 56: "The territorial jurisdiction statutes, R.C. §§ 1901.02 and 1901.19, are clearly expressed as jurisdictional limitations. To hold that these statutes relate only to venue would be to ignore the unequivocal language of these statutes, and to reverse the traditional and long-standing territorial nature of these courts."
In the case of Kacian v. Illes Constr. Co. (1970), 24 Ohio App.2d 43, 53 O.O.2d 159, 263 N.E.2d 680, the court also discussed the matter of the territorial jurisdiction of a municipal court as being an issue of jurisdiction as opposed to venue.
Perhaps the strongest case to support the proposition that the language of present R.C. 1901.19(A)(4) relates to jurisdiction, as opposed to venue, is Gastaldo v. Parker Appliance Co. (1962), 173 Ohio St. 181, 18 O.O.2d 463, 180 N.E.2d 589, in which the Ohio Supreme Court clearly treated the language of R.C. 1901.19(A)(4), former R.C. 1901.19(D), as relating to subject-matter jurisdiction, and not venue.
On the other hand, there is also case support indicating that R.C. 1901.19(A)(4) relates to venue, as opposed to jurisdiction. In Fireproof Constr., Inc. v. Brenner-Bell, Inc., supra, the Ohio Supreme Court held former Ohio General Code 1558-54b(d) to be a venue provision, even though said provision was written in terms of jurisdiction. The aforementioned section was part of the original legislation creating the Columbus Municipal Court, but a comparison of this provision with present R.C. 1901.19(A)(4) reveals a substantial similiarity of language. The Ohio Supreme Court did not explain in the Fireproof Constr., Inc. case why the statute, which spoke of jurisdiction, was to be viewed as relating to venue instead of jurisdiction.
Perhaps the strongest case to support the view that R.C. 1901.19(A)(4) is a venue provision is Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc. (1985), 23 Ohio App.3d 85, 23 OBR 150, 491 N.E.2d 345. The court in Brooks attempted to distinguish the Melamed and Santiago cases, which support the view that the statute is jurisdictional, by stating that these cases relied upon earlier case law which preceded the Ohio Rules of Civil Procedure. The court further cited the case of Morrison v. Steiner (1972), 32 Ohio St.2d 86, 61 O.O.2d 335, 290 N.E.2d 841, as supporting the proposition that every municipal court in Ohio has subject-matter jurisdiction in every case where the requirements of R.C. 1901.18(C) and 1901.17 are met.
This court finds the line of case authority supporting the proposition that R.C. 1901.19(A)(4) to be a jurisdictional statute to be the more persuasive line of authority. The court makes this determination for the following reasons.
First, the Ohio Supreme Court, in Gastaldo, supra, clearly dealt with the language presently found in R.C. 1901.19(A)(4) as relating to subject-matter jurisdiction and not venue. Second, the use of the word "jurisdiction" in R.C. 1901.19(A) is unambiguous and has a clear meaning. R.C. 1.42 states that words and phrases shall be read in context and construed according to the rules of grammar and common usage. R.C. 1901.02, defining the territorial jurisdiction of the court, R.C. 1901.03(A), which defines the word "territory," and R.C. 1901.19, all explicitly use the word "jurisdiction," and not "venue." To ignore this unambiguous language and hold that the statutes relate only to venue would be to ignore the unequivocal language of these statutes, and reverse the traditional and long-standing territorial nature of municipal courts. Santiago v. S.S. Kresge Co., supra. Finally, the court in the Brooks decision, in analyzing the case of Morrison v. Steiner, may not have considered the possibility that the Ohio Supreme Court in the Morrison case may not have mentioned the provisions of R.C. 1901.02 and 1901.19 as relating to jurisdiction, because under the particular facts of the Morrison case, there was no question that the requirements of said sections as to territorial jurisdiction were met in that case, and not contested. Furthermore, the Morrison case involved a challenge to Civ.R. 4.6 and 4.1(2), and not a challenge of the territorial limitation on subject-matter jurisdiction of municipal courts.
It should also be noted that to construe R.C. 1901.19(A)(4) as a venue provision would also cause a constitutional problem, as it is quite clear that the delineation of proper venue is a procedural matter and is within the rulemaking power of the Ohio Supreme Court. Morrison v. Steiner, supra. If R.C. 1901.19(A)(4) were held to be a venue provision, said provision would be an enactment of the legislature relating to procedure in an area in which the Ohio Supreme Court has already promulgated a rule, being Civ.R. 3(B). The statute would have to be held unconstitutional and in violation of the procedural rulemaking authority of the Ohio Supreme Court under Section 5(B), Article IV of the Constitution of Ohio. State ex rel. Silcott v. Spahr (1990), 50 Ohio St.3d 110, 552 N.E.2d 926.
For all of the above reasons, the court holds that the provisions of R.C. 1901.19(A)(4) exist as a geographic limitation on the subject-matter jurisdiction of municipal courts, and do not relate to venue.
Turning to the case before the court, the court finds that the subject matter of this action, being an alleged breach of contract entered into in Allen County, Ohio, for entertainment services to be rendered in Allen County, Ohio, is not located within the territorial limits of the Marion Municipal Court. The court further finds that the defendant does not reside in Marion County, Ohio, and was not served with summons within Marion County, Ohio. The court therefore finds that the territorial jurisdiction requirements of R.C. 1901.19(A)(4) have not been met by the plaintiffs in this action, and that this court accordingly lacks subject-matter jurisdiction over this action. The court finds that this action should be dismissed without prejudice.
Cause dismissed.