State ex rel. Sellers v. Gerken

• Decision Date: 26 April 1995
• Docket Number: No. 94-1853,94-1853
• Citation: 72 Ohio St.3d 115,647 N.E.2d 807
• Parties: The STATE ex rel. SELLERS, Appellant, v. GERKEN, Judge, et al., Appellees.
• Court: Ohio Supreme Court

Page 115

72 Ohio St.3d 115

647 N.E.2d 807

The STATE ex rel. SELLERS, Appellant, v. GERKEN, Judge, et al., Appellees.

No. 94-1853.

Supreme Court of Ohio.

Submitted March 7, 1995.

Decided April 26, 1995.

Appellant, David H. Sellers, was employed as a music teacher by the Logan-Hocking City School District Board of Education. The board terminated Sellers's employment after receiving a referee's report that determined that Sellers had acted in an unprofessional manner as to one of his students. The board's termination decision was upheld on appeal to the common pleas court and on further appeal to the court of appeals, and a subsequent motion to certify the record in the case was overruled by this court. Attorneys Mark A. Foley and William J. Steele represented Sellers during various portions of the foregoing proceedings.

On November 9, 1993, Sellers filed a complaint in the Franklin County Court of Common Pleas, alleging legal malpractice on the part of Foley and Steele in their representation of Sellers regarding the board's termination of Sellers's employment. On January 31, 1994, Foley and Steele filed a complaint in appellee Hocking County Court of Common Pleas, which alleged that beginning in April 1993 and continuing through the time the legal malpractice action was instituted, Sellers "engaged in a reckless and intentional campaign against the professional reputation" of Foley and Steele by making "false and defamatory accusations and allegations" against them.

Sellers moved to dismiss the Hocking County defamation action based on his contentions that (1) the Franklin County Common Pleas Court had acquired exclusive jurisdiction over the matter, and (2) the case was improperly venued in Hocking County, where none of the parties resided and none of the alleged statements was made. In April 1994, appellee Hocking County Common Pleas Court Judge Thomas H. Gerken overruled Sellers's motion to dismiss, as well as a subsequently filed motion for reconsideration.

On May 9, 1994, Sellers filed a complaint in the Court of Appeals for Hocking County, seeking a writ prohibiting appellees, Judge Gerken and the Hocking County Common Pleas Court, from exercising jurisdiction in the defamation action. Sellers also filed a motion for a temporary restraining order and an affidavit and exhibits in support of his motion. Appellees filed an answer that alleged that "[t]he acts of relator giving rise to the defamation suit arose subsequent to the representation of the relator by the attorneys[,] said acts being those of relator outside the attorney[-]client relationship, whereas the allegations of relator against the attorneys concern alleged failing during the representation of the relator."

Loc.App.R. 3 of the Court of Appeals for Hocking County governs the procedure in original actions, other than habeas corpus, filed in that court. Section 6 of the rule provides that the case "shall be submitted to the Court by means of an agreed statement of facts, or stipulations, or depositions[,]" and Section 8 provides that trial briefs are due following the completion of the presentation of the evidence. Although the parties filed none of the evidence specified in Loc.App.R. 3, Sellers filed a complaint, affidavit, and exhibits, and appellees filed an answer and an affidavit. Sellers filed a brief on the merits on May 23, 1994, to which appellees did not respond. On July 11, 1994, the court of appeals denied Sellers's request for a writ of prohibition on the basis that he had failed to establish the prerequisites for issuance of the writ. ¹

The cause is now before this court upon an appeal as of right.

A.M. Fishman Co., L.P.A., Andrew M. Fishman and Kifi Z. Haque, Columbus, for appellant.

Charles A. Gerken, Hocking County Pros. Atty., for appellees.

PER CURIAM.

To obtain a writ of prohibition, Sellers was required to establish (1) that appellees were about to exercise judicial or quasi-judicial power, (2) that the exercise of that power was unauthorized by law, and (3) that denying the writ would result in injury for which no other adequate remedy existed in the ordinary course of law. State ex rel. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359, 626 N.E.2d 950, 952. It is uncontroverted that at the time that Sellers initiated his prohibition action, Judge Gerken had overruled his motion to dismiss the Hocking County defamation action and was about to exercise judicial power to allow the case to proceed. At issue then is whether Sellers established the remaining two elements for issuance of a writ of prohibition, i.e., whether Judge Gerken's exercise of judicial power in the defamation case was unauthorized and if Sellers possessed an adequate remedy at law.

Sellers asserts in his first and second propositions of law that appellees lacked jurisdiction over the defamation claim, since the Franklin County Common Pleas Court had exclusive jurisdiction over that action as well as other conduct arising out of attorneys Foley and Steele's representation of Sellers in his disciplinary proceeding and administrative appeals.

" 'As between [state] courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of proper proceedings acquires jurisdiction to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the parties.' " State ex rel. Racing Guild of Ohio v. Morgan (1985), 17 Ohio St.3d 54, 56, 17 OBR 45, 46, 476 N.E.2d 1060, 1062, citing State ex rel. Phillips v. Polcar (1977), 50 Ohio St.2d 279, 4 O.O.3d 445, 364 N.E.2d 33, syllabus. "When a court of competent jurisdiction acquires jurisdiction of the subject matter of an action, its authority continues until the matter is completely and finally disposed of, and no court of co-ordinate jurisdiction is at liberty to interfere with its proceedings." John Weenink & Sons Co. v. Cuyahoga Cty. Court of Common Pleas (1948), 150 Ohio St. 349, 38 O.O. 189, 82 N.E.2d 730, paragraph three of the syllabus.

In general, it is a condition of the operation of the state jurisdictional priority rule that the claims or causes of action be the same in both cases, and "[i]f the second case is not for the same cause of action, nor between the same parties, the former suit will not prevent the latter." State ex rel. Judson v. Spahr (1987), 33 Ohio St.3d 111, 113, 515 N.E.2d 911, 913; Robinson v. Robinson (Oct. 14, 1994), Lucas App. No. L-94-095, unreported, 1994 WL 573803. In this case, the causes of action are not the same. The Franklin County legal malpractice action involved a different claim for relief than the Hocking County defamation action.

Nevertheless, we have at times recognized the applicability of the priority rule where the causes of action and relief requested are not exactly the same. See, e.g., State ex rel. Phillips (actions for damages and for rescission based on same realty purchase contract [see Ohio Supreme Court...