State, Ex Rel. Allied Chem. Co. v. Aurelius , 16 Ohio App. 3d 69 ( 1984 )

I respectfully dissent both from the denial of the alternative writ and the petition for a peremptory writ. Civ. R. 3(C) provides, in relevant part, that:

"(1) When an action has been commenced in a county other than stated to be proper in subdivision (B) of this rule, upon timely assertion of the defense of improper venue as provided in Rule 12, the court shall transfer the action to a county stated to be proper in subdivision (B) of this rule." (Emphasis added.)

The writ of mandamus should lie for an erroneous ruling on venue in clear violation of the Civil Rules for the reasons so aptly stated by the United States Court of Appeals for the Ninth Circuit as follow:

"A decision denying change of venue is complete and final in itself. It is not a step toward final judgment on the merits which will merge in such final judgment. Instead, it is collateral to and separable from the rights asserted in the action. Venue provisions deal with rights too important to be denied review. Yet error in denying change of venue cannot be effectively remedied on appeal from final judgment. The purpose of the rule is to avoid the disruption, expense, and inconvenience parties and witnesses must suffer by having the trial in an improper forum. To require litigants to await final judgment for relief serves to defeat the very purpose of the venue rule by requiring them to submit to the disadvantages from which the rule is designed to relieve them. Once trial has been completed damages cannot be collected for the extra expense suffered."Pacific Car and Foundry Co. v. Pence (C.A. 9, 1968),403 F.2d 949, 952 (footnote omitted). Contrary to the conclusion reached by the majority, no adequate remedy at law is apparent.

Civ. R. 3(G) cited by the majority says that no order shall be void or subject to collateral attack because there was improper venue. This is an entirely different matter than attacking venue itself. Civ. R. 3(G) sheds no light on the question of whether mandamus will lie to compel a court to transfer a case that has been improperly venued.

Moreover, issuing a writ of mandamus in such a case is not inconsistent with prior Ohio law. The Supreme Court of Ohio, pursuant to a venue provision of the former General Code, permitted the issuance of a writ of mandamus to correct an erroneous ruling by the trial court stating that:

"If respondent had the mandatory duty to allow the change of venue upon the filing of the application and affidavit by relator, the respondent had no discretion in the matter and his obligation can properly be compelled by a writ of mandamus."State, ex rel. Keller, v. Birrell (1948), 149 Ohio St. 145, 151 [36 O.O. 482].

Indeed, this court has permitted an appeal from an order granting a change of venue. The parties were not required to try the case first and then argue about venue. Varketta v. GeneralMotors Corp. (1973), 34 Ohio App.2d 1 [63 O.O.2d 8]. State, exrel. Dunbar, v. Ham (1976), 45 Ohio St.2d 112 [74 O.O.2d 213], cited by the majority, deals with a permissive change of venue and in my view has no application to this case which involves a mandatory duty to grant a change of venue.

Finally, I believe the court's action in dismissing the petition for a peremptory writ as well as the application for an alternative writ is premature since no answer or other responsive pleading has been filed, no briefing of the issues has occurred and no hearing has been held. Though an alternative may be denied, the case should still proceed as an original action as provided in R.C. Chapter 2731.