State ex rel. Schneider v. Board of Education

Per Curiam. Because the order of the Eighth District Court of Appeals stated that “[t]here is an adequate remedy at law,” the board argues that it was a final decision on the merits of Schneider’s mandamus action, barring any further such action by him. “* * * [T]he principle of res judicata * * * is that ‘a final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent ac [282] tion on the same claim or cause of action between the parties or those in privity with them.’ * * *” Johnson’s Island, Inc. v. Bd. of Twp. Trustees (1982), 69 Ohio St. 2d 241, 243, 23 O.O. 3d 243, 244-245, 431 N.E. 2d 672, 674, quoting Norwood v. McDonald (1943), 142 Ohio St. 299, 27 O.O. 240, 52 N.E. 2d 67, paragraph one of the syllabus. If the Eighth District Court of Appeals did indeed render a final decision on the merits, that decision is res judicata to this action. It is not clear, from the face of the judgment entry, whether that court ruled on the merits or ruled (as Schneider argues) that it lacked jurisdiction over the case.We therefore find it necessary to discover what the court meant when it issued this judgment. Because we interpret the judgment of the Eighth District as ruling that it lacked jurisdiction, we hold that the ruling is not res judicata, and affirm the judgment of the Ninth District Court of Appeals. The board correctly observes that, when a court denies mandamus because an adequate legal remedy exists, the denial is an adjudication on the merits. However, the Eighth District did not simply hold that an adequate remedy at law existed. Rather, that holding was based on the reasoning that the Ninth District “has continuing jurisdiction to enforce its own orders.” Schneider argues that the Eighth District’s holding that the Ninth District had “continuing jurisdiction” over the action meant that the Eighth District lacked jurisdiction. Thus, Schneider contends that, despite the “adequate remedy” language, the dismissal was really grounded on lack of jurisdiction. We agree. Civ. R. 41 (B)(4)(a) provides: “A dismissal * * * for lack of jurisdiction over the person or the subject matter * * * shall operate as a failure otherwise than on the merits.” If the Eighth District ruled that it lacked jurisdiction, its ruling is not res judicata to the instant action. The entry specified that the Ninth District had “continuing jurisdiction to enforce its own orders.” Thus, it appears that the Eighth District considered the instant mandamus action part of the previous litigation, and was applying the rule that as “ ‘* * * between courts of concurrent and coextensive jurisdiction, the one whose power is first invoked by the institution of proper proceedings and the service of the required process acquires the right to adjudicate upon the whole issue and to settle the rights of the parties to the exclusion of all other tribunals. * * *’ ” (Emphasis added.) Miller v. Court of Common Pleas (1944), 143 Ohio St. 68, 70, 28 O.O. 19, 20, 54 N.E. 2d 130, 131-132. See, also, John Weenink & Sons Co. v. Court of Common Pleas (1948), 150 Ohio St. 349, 355, 38 O.O. 189, 191, 82 N.E. 2d 730, 733. From the holding that the Ninth District had “continuing jurisdiction,” it follows that the Eighth District ruled that it had none. Furthermore, the entry does not say what remedy other than mandamus Schneider should have sought. Instead, it merely instructed him to seek a remedy in the Ninth District. The gist of the entry is not that Schneider sought the wrong remedy, but that he was in the wrong court — one that lacked jurisdiction over the case. We also note that mandamus is the proper remedy where an appointing authority refuses to abide by a disaffirmance of its decision. State, ex rel. Potten, v. Kuth (1980), 61 Ohio St. 2d 321, 322, 15 O.O. 3d 391, 392, 401 N.E. 2d 929, 931. To give res judicata effect to the “adequate remedy” language would penalize Schneider for going to the Ninth District as he was told to do, [283] and seeking there the only proper remedy he had, while rewarding the board for its refusal to abide by the original result. We hold that the Eighth District did not intend its ruling to have such an effect. Because the judgment entry of the Eighth District Court of Appeals was based on that court’s lack of jurisdiction, it is not res judicata to the instant action. We affirm the allowance of the writ of mandamus. Judgment affirmed. Moyer, C.J., Sweeney, Locher, Holmes, Wright and H. Brown, JJ., concur. Douglas, J., concurs in part and dissents in part.