[Cite as Denefield v. Akron, 2019-Ohio-3249.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
BRENDA DENEFIELD, et al. C.A. No. 28771
Appellants
v. APPEAL FROM JUDGMENT ENTERED IN THE MANUEL NEMER, et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. CV-2016-08-3700
DECISION AND JOURNAL ENTRY
Dated: August 14, 2019
CARR, Judge.
{¶1} Plaintiffs-Appellants Brenda Denefield, American Legion, Inc., and Highland
Square Management, Inc., collectively “Property Owners,” appeal from the judgment of the
Summit County Court of Common Pleas. This Court affirms in part, reverses in part, and
remands the matter for proceedings consistent with this decision.
I.
{¶2} This matter concerns the development of four parcels of land in the City of
Akron. Those parcels are owned by Defendant-Appellee Lebo Holdings, LLC. Defendant-
Appellee Manuel Nemer is Lebo Holdings, LLC’s managing partner. Property Owners own
property adjacent to one or more of the parcels.
{¶3} In 2013, Mr. Nemer submitted an application to Defendant-Appellee Akron City
Planning Commission seeking a conditional use permit to construct a retail/apartment
development on one of the parcels: 795 West Market Street. Ultimately, both the planning 2
commission and Defendant-Appellee Akron City Council approved the permit; Akron City
Council issued Ordinance No. 186-2013, which was later signed by the mayor. The ordinance
authorized Mr. Nemer to develop and use four parcels for the retail/apartment development.
{¶4} In July 2013, Highland Square Management, Inc. filed an administrative appeal
challenging the granting of the conditional use permit. Therein, Highland Square Management,
Inc. pointed to numerous defects in the application, notice, and procedure adopting Ordinance
No. 186-2013. Much of the concern centered on the fact that the application only mentioned 795
West Market Street but the conditional use approval included three other parcels, two of which
were zoned single family residential. Highland Square Management, Inc. viewed this as an
improper rezoning of the parcels without an application for a variance. Appellees in the
administrative appeal were Akron City Council and Akron City Planning Commission.
{¶5} Later, but prior to any ruling in the administrative appeal, Highland Square
Management, Inc. filed a civil action seeking injunctive relief related to construction and use of
the parcels. That civil action named Lebo Holdings, LLC, Mr. Nemer, and Summit County as
defendants. The two matters were subsequently consolidated.
{¶6} The trial court dismissed the administrative appeal with prejudice concluding that
Highland Square Management, Inc. failed to serve Akron City Council or Akron City Planning
Commission; thus, Highland Square Management, Inc. failed to perfect its appeal. The trial
court also dismissed the action for injunctive relief with prejudice. Highland Square
Management, Inc. appealed the judgment and this Court affirmed, following a remand for the
trial court to rule on a Civ.R. 60(B) motion. See Highland Square Management, Inc. v. Akron,
9th Dist. Nos. 27211, 27372, 2015-Ohio-401, ¶ 5, 24. 3
{¶7} On June 18, 2015, Property Owners filed a complaint against Lebo Holdings,
LLC, Mr. Nemer, and Defendants-Appellees City of Akron Planning Commission and Akron
City Council (collectively “Akron”). Property Owners sought a declaratory judgment finding
that Ordinance No. 186-2013 was unlawful and void and also sought injunctive relief. In their
first claim, Property Owners argued Akron erred in approving the conditional use petition when
there “was no compliance with numerous mandatory procedural requirements * * *.” In the
second count, Property Owners asserted that Akron, Mr. Nemer, and Lebo Holdings, LLC
“intend to create a public alley or road on the residential parcels and have failed to follow the
procedures and comply with the notice requirements under [R.C. 723.09 and 723.10.]” Property
Owners later voluntarily dismissed the action.
{¶8} In August 2016, Property Owners filed the instant action against Akron, Lebo
Holdings, LLC, and Mr. Nemer. Count one reiterated many of the alleged procedural defects
noted in the administrative appeal and the 2015 complaint. Additionally, the instant complaint
included an assertion that Akron Codified Ordinance 153.470 “does not give Defendant City of
Akron the authority to create a public alley over private property that is zoned single family
residential.” In the prayer for relief with respect to count one, Property Owners demanded a
declaratory judgment that the conditional use ordinance was “void as a matter of law to the
extent that it creates an alley over residential parcels, based on procedural error and other
violations of law; and that the ordinance to the extent it unlawfully creates an alley over
residential parcels be stricken from the Code of Ordinances for the City of Akron.”
{¶9} Count two stated that Akron, Mr. Nemer, and Lebo Holdings, LLC “intend to
create a public alley or road on the residential parcels and have failed to follow the procedures
and comply with the notice requirements under Ohio R.C. [723.09 and 723.10] respectively.” In 4
the prayer for relief addressing count two, the Property Owners demanded that “Defendants,
Lebo Holdings, LLC and Defendant Nemer, their agents, servants, employees, and all persons in
active concert and participation with the Defendants, be permanently enjoined from proceeding
with any further use of the proposed alley until there has been procedural compliance with Ohio
R.C. [] 723.09, 273.10 and 723.11 and be enjoined from any further action that is contrary to the
ordinances of the City of Akron and the law of the State of Ohio.”
{¶10} Finally, count three of the instant complaint asserted that Lebo Holdings, LLC
and Mr. Nemer failed to comply with some of the conditions outlined in Ordinance No. 186-
2013. In their prayer for relief for count three, Property Owners maintained they were entitled to
injunctive relief “compelling Defendants Lebo Holdings, LLC and Defendant Nemer to complete
the work proposed under Akron City Ordinance 186-2013 in a manner consistent with the
drawings and site plans approved by the City of Akron as well as an order compelling the
Defendant the City of Akron to enforce the conditions of the conditional use application that it
approved under Akron City Ordinance 186-2013.”
{¶11} Akron filed an answer wherein it raised several defenses, including res judicata.
Thereafter, Lebo Holdings, LLC and Mr. Nemer also answered the complaint and included res
judicata among their defenses. Akron filed a motion to dismiss or, alternatively, for summary
judgment. Therein, Akron argued that Property Owners’ complaint failed to state a claim upon
which relief can be granted, the claims were barred by the statute of limitations and res judicata,
and the claims were moot. Lebo Holdings, LLC and Mr. Nemer filed a similar motion in which
they made similar arguments and also joined in Akron’s motion. Akron’s supporting evidence
largely consisted of filings from prior cases. Property Owners opposed the motions and reply
briefs were also filed. 5
{¶12} The trial court concluded that counts one and two of Property Owners’ complaint
were barred by res judicata; however, it concluded that count three was not. Instead, it
concluded that, with respect to count three, Property Owners failed to state a claim upon which
relief could be granted as they failed to allege the elements necessary to receive injunctive relief.
Additionally, with respect to Akron, the trial court concluded that an injunction was not an
appropriate way to force a municipality to comply with its code of ordinances.
{¶13} Property Owners have appealed, raising three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING THE DEFENDANTS’ [CIV.R.] 56 MOTION FOR SUMMARY JUDGMENT ON COUNT I IN THAT RES JUDICATA DOES NOT APPLY TO THE PLAINTIFFS’ CLAIMS FOR DECLARATORY JUDGMENT BASED ON OHIO R.C. [] 713.13[.]
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN DISMISSING COUNT II BASED ON RES JUDICATA IN THAT SUCH CLAIMS DO NOT INVOLVE ALL OF THE SAME PARTIES AS IN THE ADMINISTRATIVE APPEAL AND THIS COUNT INCLUDES CLAIMS THAT WERE NOT AND COULD NOT HAVE BEEN LITIGATED IN THE PREVIOUS ACTION.
{¶14} Property Owners argue in their first and second assignments or error that the trial
court erred in granting summary judgment to Akron, Lebo Holdings, LLC, and Mr. Nemer based
upon res judicata. Because we conclude that Akron, Lebo Holdings, LLC and Mr. Nemer failed
to meet their burden on summary judgment with respect to the affirmative defense of res
judicata, we agree.
{¶15} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial 6
court, viewing the facts in the case in the light most favorable to the non-moving party and
resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio
App.3d 7, 12 (6th Dist.1983).
{¶16} Pursuant to Civ.R. 56(C), summary judgment is proper if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶17} The party moving for summary judgment bears the initial burden of informing the
trial court of the basis for the motion and pointing to parts of the record that show the absence of
a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).
Specifically, the moving party must support the motion by pointing to some evidence in the
record of the type listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of
supporting its motion for summary judgment with acceptable evidence pursuant to Civ.R. 56(C),
Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or
denials of the moving party’s pleadings. Id. at 293. Rather, the non-moving party has a
reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine
triable issue” exists to be litigated at trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d
447, 449 (1996).
{¶18} The trial court applied claim preclusion to Property Owners’ first two counts.
“Under Ohio law, the doctrine of res judicata consists of both claim preclusion and issue
preclusion.” Robinson v. Springfield Local School Dist. Bd. of Edn., 9th Dist. Summit No.
20606, 2002 WL 462860, *3 (Mar. 27, 2002) citing Ft. Frye Teachers Assn., OEA/NEDA v. 7
State Emp. Relations Bd., 81 Ohio St.3d 392, 395 (1998). “Claim preclusion prevents
subsequent actions, by the same parties or their privies, based upon any claim arising out of a
transaction that was the subject matter of a previous action.” (Internal quotations and citations
omitted.) KNL Custom Homes, Inc. v. Dotsikas, 9th Dist. Summit No. 27990, 2016-Ohio-5117,
¶ 5. “The previous action is conclusive for all claims that were or that could have been litigated
in the first action.” (Internal quotations omitted.) Id. “It is well-settled that res judicata is an
affirmative defense.” Miller v. Community Health Partners, 9th Dist. Lorain No. 12CA010165,
2013-Ohio-1935, ¶ 13. The party asserting it has the burden of establishing it. Moffitt v.
Litteral, 2d Dist. Montgomery No. 19154, 2002-Ohio-4973, ¶ 21.
{¶19} Irrespective of whether Akron, Lebo Holdings, LLC, and Mr. Nemer met their
burden with respect to other elements of res judicata, we conclude that they failed to demonstrate
the absence of a genuine issue of material fact with respect to whether Property Owners’ current
counts one and two were previously litigated or could have been previously litigated. See KNL
Custom Homes, Inc. at ¶ 5.
{¶20} It is true that issues related to the conditional use of the parcels have been
previously litigated. However, the current focus of counts one and two of the instant litigation is
an alley. As noted above, with respect to count one, Property Owners demanded a declaratory
judgment that the conditional use ordinance was “void as a matter of law to the extent that it
creates an alley over residential parcels, based on procedural error and other violations of law;
and that the ordinance to the extent it unlawfully creates an alley over residential parcels be
stricken from the Code of Ordinances for the City of Akron.” With respect to count two,
Property Owners demanded that “Defendants, Lebo Holdings, LLC and Defendant Nemer, their
agents, servants, employees, and all persons in active concert and participation with the 8
Defendants, be permanently enjoined from proceeding with any further use of the proposed alley
until there has been procedural compliance with Ohio R.C. [] 723.09, 273.10 and 723.11 and be
enjoined from any further action that is contrary to the ordinances of the City of Akron and the
law of the State of Ohio.”
{¶21} In the filings submitted in support of the motions for summary judgment, an alley
is scarcely mentioned, let alone detailed. There is an alley mentioned in a paragraph of the 2013
complaint seeking injunctive relief. That paragraph states:
The City of Akron proposes to eliminate the ingress/egress from North Highland Avenue at the Chipotle/Akron Summit County Library parking lot and add a cul- de-sac at the south end of North Highland, which would require all traffic entering the Nemer proposed parking lot to exit through a one-way alley onto Casterton Avenue.
{¶22} It is unclear if that alley is the same alley discussed in the current complaint.
Notably, Ordinance No. 186-2013 does not mention an alley and neither does the drawing
accompanying the ordinance. After considering the totality of the evidence presented it is
impossible to discern whether the alley mentioned in the prior proceeding is the alley at issue in
the instant complaint or whether an alley was even contemplated by the ordinance. In short, we
know very little about the alley that is at the center of Property Owners’ claims. Notably, in their
brief in opposition to the motion for summary judgment, Property Owners asserted that at the
time of the prior proceedings, the alley “had not yet been constructed and did not exist until over
two years later.” While the foregoing is merely an allegation without supporting evidence,
Akron’s, Lebo Holdings, LLC’s, and Mr. Nemer’s evidence did not dispel the possibility that the
same is true. Nothing in the evidentiary materials submitted demonstrated that Property Owners’
first two counts were previously litigated or could have been previously litigated. See KNL
Custom Homes, Inc., 2016-Ohio-5117, at ¶ 5. 9
{¶23} It was Akron’s, Lebo Holding, LLC’s, and Mr. Nemer’s burden to demonstrate
the absence of a genuine issue of material fact with respect to the application of res judicata and
they have failed to meet that burden. We note that the declarations that Property Owners sought
in counts one and two appeared to be limited to issues related to the alley. This Court has only
decided that Akron, Lebo Holding, LLC, and Mr. Nemer failed to demonstrate res judicata
applied with respect to allegations related to the alley, and, thus, it was erroneous for the trial
court to grant summary judgment as to those two counts. This opinion should not be read to
imply that res judicata was inapplicable to other issues and allegations in the complaint that were
or could have been previously litigated.
{¶24} To the extent that Akron, Lebo Holdings, LLC, and Mr. Nemer assert that counts
one and two are moot, we cannot say that they have submitted evidence demonstrating the same
given the lack of evidence about this particular alley. To the extent that Akron, Lebo Holdings,
LLC, and Mr. Nemer contend that these claims are barred by the statute of limitations and fail to
state a claim upon which relief can be granted, we note that the trial court has not yet passed
upon the merits of these assertions in the first instance. “This Court is a reviewing court and its
role is not to decide matters in the first instance.” Huntington Natl. Bank v. Anderson, 9th Dist.
Lorain No. 17CA011223, 2018-Ohio-3936, ¶ 32. Accordingly, we sustain Property Owners’
first two assignments of error but remand the matter for the trial court to consider the arguments
it previously declined to consider. See id.
{¶25} Property Owners’ first and second assignments of error are sustained.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN DISMISSING COUNT III ON THE BASIS OF OHIO CIV.R. 12(C) IN THAT APPELL[ANTS] PROPERLY PLEAD A CLAIM FOR STATUTORY INJUNCTIVE RELIEF FOR VIOLATING A 10
ZONING ORDINANCE AND NEITHER APPELLEE RAISED ANY ISSUE CONCERNING DAMAGES[.]
{¶26} Property Owners argue in their third assignment of error that the trial court erred
in dismissing their third count of their complaint. We agree in part.
{¶27} Count three of the instant complaint asserted that Lebo Holdings, LLC and Mr.
Nemer failed to comply with some of the conditions outlined in Ordinance No. 186-2013. In
their prayer for relief for count three, Property Owners maintained they were entitled to
injunctive relief “compelling Defendants Lebo Holdings, LLC and Defendant Nemer to complete
the work proposed under Akron City Ordinance 186-2013 in a manner consistent with the
drawings and site plans approved by the City of Akron as well as an order compelling the
Defendant the City of Akron to enforce the conditions of the conditional use application that it
{¶28} With respect to count three, the trial court concluded that “[i]t is unclear from the
evidence presented when the alleged violations of City of Akron Ordinance 186-2013 specified
in Count Three occurred and whether these claims could have been included in the prior cause of
action.” Accordingly, the trial court concluded that Akron, Lebo Holdings, LLC, and Mr. Nemer
had failed to demonstrate that res judicata barred count three.
{¶29} The trial court went on to construe Akron’s, Lebo Holdings, LLC’s, and Mr.
Nemer’s motion to dismiss for failure to state a claim with respect to count three as a motion for
judgment on the pleadings.
{¶30} “Civ.R. 12(C) * * * presents only questions of law, and determination of the
motion for judgment on the pleadings is restricted solely to the allegations in the pleadings. In
ruling upon a motion under Civ.R. 12(C), the trial court is limited to the face of the pleadings on
file with the court. It cannot be supported by facts outside those pleadings.” (Internal quotations 11
and citations omitted.) Hall v. Crystal Clinic, Inc., 9th Dist. Summit No. 28524, 2017-Ohio-
8471, ¶ 6. A ruling granting a motion for judgment on the pleadings is reviewed de novo. Id.
{¶31} The trial court concluded that Property Owners
failed to plead a cause of action for an injunction based upon the failure to comply with City of Akron Ordinance 186-2013. First, Plaintiffs’ Complaint fails to allege any irreparable harm as a result of the five alleged violations of Akron City Ordinance 186-2013. No explanation or allegation of potential injury to be suffered if injunctive relief is not granted is included in the Complaint. * * * Further, no claims of any tort whatsoever are alleged in the Complaint. * * * Without some cognizable claim specific to Plaintiffs and without any allegation of damages as a result of the five alleged violations, the Court finds no grounds exist to award an injunction upon Count Three.
{¶32} Additionally, the trial court concluded that “an injunction is not a proper way to
attempt to force a municipality to comply and enforce its code of ordinances. Instead, a party
must attempt to comply with its zoning code by a petition for a writ of mandamus.”
{¶33} On appeal, Property Owners have not challenged the trial court’s basis for
dismissing count three as to Akron. See App.R. 16(A)(7). Accordingly, Property Owners have
failed to demonstrate that the dismissal of count three as to Akron was erroneous and we affirm
the dismissal as to Akron on that basis. See App.R. 16(A)(7); Pascual v. Pascual, 9th Dist.
Medina No. 12CA0036-M, 2012-Ohio-5819, ¶ 6 (noting it is an appellant’s duty to demonstrate
error on appeal).
{¶34} With respect to the dismissal as to Lebo Holdings, LLC and Mr. Nemer, we
conclude that the trial court erred in granting judgment on the pleadings on count three because
Lebo Holdings, LLC and Mr. Nemer did not argue in their motion that Property Owners failed to
satisfy the elements necessary for injunctive relief. Generally, “[a] trial court cannot grant a
dispositive motion on grounds not raised by a moving party.” Mico Ins. Co. v. Orlando, 5th
Dist. Guernsey No. 15 CA 15, 2016-Ohio-193, ¶ 18; see also Clary v. Medina Twp. Bd. of 12
Trustees, 9th Dist. Medina No. 17CA0075-M, 2018-Ohio-2545, ¶ 15 (Carr, J., concurring in
judgment only). While Lebo Holdings, LLC and Mr. Nemer did argue that Property Owners
failed to state a claim upon which relief could be granted with respect to count three, the
argument they made was more in the nature of res judicata. They did not assert that Property
Owners’ count three failed to allege elements necessary to entitle them to injunctive relief.
Moreover, while Lebo Holdings, LLC and Mr. Nemer did join in Akron’s motion to
dismiss/motion for summary judgment, Akron’s argument concerning why Property Owners’
count three failed to state a claim was focused on the fact that it was a municipality and such
argument would not be applicable to Lebo Holdings, LLC and Mr. Nemer.
{¶35} Lebo Holdings, LLC and Mr. Nemer additionally argue that the trial court erred in
failing to grant summary judgment on count three based upon res judicata. As noted above, the
trial court concluded that Akron, Lebo Holdings, LLC, and Mr. Nemer failed to meet their
burden to demonstrate that count three was barred. For reasons similar to those outlined in this
Court’s resolution of Property Owners’ first and second assignments of error, we conclude that
the trial court did not err. Lebo Holdings, LLC and Mr. Nemer failed to present sufficient
evidentiary materials demonstrating that count three could have been included in prior litigation.
See KNL Custom Homes, Inc., 2016-Ohio-5117, at ¶ 5.
{¶36} Finally, Lebo Holdings, LLC and Mr. Nemer assert that the judgment was also
warranted because the statute of limitations barred count three. However, again as discussed
above, the trial court did not consider the merits of this issue, and, as a reviewing court, it is not
this Court’s role to do so in the first instance. See Anderson, 2018-Ohio-3936, at ¶ 32. Upon
remand, the trial court can consider the merits of the arguments it did not consider. 13
{¶37} Property Owners’ third assignment of error is sustained as to Lebo Holdings, LLC
and Mr. Nemer, but overruled as to Akron.
III.
{¶38} Property Owners’ first and second assignments of error are sustained. Property
Owners’ third assignment of error is sustained with respect to Lebo Holdings, LLC and Mr.
Nemer and overruled with respect to Akron. The judgment of the Summit County Court of
Common Pleas is affirmed in part, reversed in part, and the matter is remanded for proceedings
consistent with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30. 14
Costs taxed equally to both parties.
DONNA J. CARR FOR THE COURT
SCHAFER, P. J. HENSAL, J. CONCUR.
APPEARANCES:
JEROME T. LINNEN, JR., Attorney at Law, for Appellants.
CLAIR E. DICKINSON, Attorney at Law, for Appellees.
JOHN R. YORK, Attorney at Law, for Appellees.
JAMES M. HENSHAW, Attorney at Law, for Appellees.
TANIA T. NEMER, Attorney at Law, for Appellees.