Teays Valley Local School Dist. Bd. of Edn. v. Struckman

2023 Ohio 244, 206 N.E.3d 796

• Court: Ohio Court of Appeals
• Decided: January 25, 2023
• Docket: 21CA7
• Status: Published

Opinion

[Cite as Teays Valley Local School Dist. Bd. of Edn. v. Struckman, 2023-Ohio-244.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

TEAYS VALLEY LOCAL SCHOOL : DISTRICT BOARD OF EDUCATION, :

Plaintiff-Appellee, : Case No. 21CA7

v. :

MICHAEL STRUCKMAN, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Andrew C. Clark and Richard T. Ricketts, Pickerington, Ohio, for appellant.

Nelson Reid and Sue W. Yount, Columbus, Ohio, for appellee. ________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 1-25-23 ABELE, J.

{¶1} This is an appeal from a Pickaway County Common Pleas

Court summary judgment in favor of Teays Valley Local School

District Board of Education, plaintiff below and appellee

herein. Michael Struckman, defendant below and appellant

herein, assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO PERMIT APPELLANT TO PURSUE 2 PICKAWAY, 21CA7

DISCOVERY IN ACCORDANCE WITH THE CIVIL RULES.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ABUSED ITS DISCRETION BY STRIKING APPELLANT’S AMENDED ANSWER AND COUNTERCLAIMS WHICH WAS FILED WITH CONSENT OF OPPOSING COUNSEL PURSUANT TO CIVIL RULE 15(A) AND SUBSEQUENTLY DENYING APPELLANT’S MOTION FOR LEAVE TO AMEND.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO LIABILITY WHERE THE PROVISIONS OF THE CONTRACT ENVISIONED THAT DEFENDANT WOULD BE PERMITTED TO GROW CROPS ON THE PROPERTY DURING THE TIME PERIOD RELEVANT TO THIS CASE.”

In 2004, appellant agreed to sell approximately 70 acres of

real estate to appellee.1 One provision in the contract gave

appellant the right to continue “Farming Activities on any part

of the Real Estate purchased by Buyer until Buyer commences

construction on any such portion of the Real Estate or otherwise

must occupy said portion of the Real Estate in connection with

its intended use thereof.”

1 The underlying facts can be found in our previous decisions concerning the litigation between the parties: Struckman v. Bd. of Edn. of Teays Valley Loc. Sch. Dist., 2019- Ohio-115, 128 N.E.3d 709 (4th Dist.) (Struckman II), and Struckman v. Bd. of Edn. of Teays Valley Loc. Sch. Dist., 4th Dist. Pickaway No. 16CA10, 2017-Ohio-1177 (Struckman I). 3 PICKAWAY, 21CA7

{¶2} In July 2015, Teays Valley Local School District

Superintendent Robin Halley sent a letter to appellant to inform

him that appellee intended to occupy the property and

appellant’s farming rights would terminate at the end of the

2015 farming season. Halley’s letter stated that appellee’s

“plans include the construction of a small facility on the site

in conjunction with its occupancy and use of the property for

the District’s student FFA organization and other potential

school-related or extracurricular functions.”

{¶3} In March 2016, appellant filed a complaint against

appellee for breach of contract, specific performance,

declaratory and injunctive relief, and willful, wanton and

knowing breach of contract. Appellant asserted that he agreed

to sell his property to appellee (at a generous discount) based

on the understanding that (1) appellee would use the property as

a school site, and (2) appellant would have the right to

continue to farm the property until appellee developed a school

on the property. Appellant argued that appellee’s use of the

property for any purpose other than a school site constitutes a

breach of the real estate purchase contract.

{¶4} In response, appellee filed a Civ.R. 12(B)(6) motion

to dismiss the complaint for failure to state a claim upon which 4 PICKAWAY, 21CA7

relief could be granted. Appellee argued that the contract did

not require it to build a school on the property.

{¶5} The trial court agreed with appellee that the purchase

contract did not require appellee to build a school on the

property and granted the motion to dismiss the complaint. The

court found its decision regarding the contract language

dispositive of the other arguments. Appellant appealed the

trial court’s judgment.

{¶6} Meanwhile, appellee filed the complaint that is the

subject of the present appeal. Appellee’s complaint alleged

that, based upon the purchase contract and the previous

litigation, appellant did not have any right to continued use of

the property. Appellee asked the court to eject appellant from

the property and to enter a permanent injunction to enjoin him

from entering, using, or possessing the property. Appellee also

requested that the court award it the planted crops and to find

that appellant engaged in a trespass.

{¶7} On July 11, 2016, appellant filed an answer and

counterclaims. In his counterclaims, appellant asserted that

appellee breached the purchase contract and requested specific

performance of appellee’s obligations under the contract.

Appellant asked the trial court to order appellee “to cease and 5 PICKAWAY, 21CA7

desist any attempt to take possession of the Real Estate or

restrict in any manner [appellant]’s use of the Real Estate for

farming purposes as provided for in the Purchase Contract.” He

also alleged “willful, wanton and knowing intended breach” of

contract.

{¶8} On March 27, 2017, this Court affirmed the trial

court’s judgment that dismissed appellant’s complaint in the

initial case (Struckman I). In doing so, we rejected

appellant’s argument that the purchase contract’s language was

ambiguous so as to permit appellant to introduce parol evidence

that the parties intended that appellee would use the property

to build a school. Instead, we concluded that the relevant

contract language is unambiguous and did not require appellee to

build a school on the property. The relevant contract language

states:

The Contract shall not affect the current right to use the Real Estate for Farming Activities prior to closing. Furthermore, Seller shall be entitled to without charge from Buyer continue its Farming Activities on any part of the Real Estate purchased by Buyer until Buyer commences construction on any such portion of the Real Estate or otherwise must occupy said portion of the Real Estate in connection with its intended use thereof.

{¶9} We did not agree with appellant that this language, or

any other language in the contract, showed that appellee 6 PICKAWAY, 21CA7

promised to build a school on the property or that appellee

agreed it would terminate appellant’s farming rights only if

appellee started to build a new school. Rather, we concluded

that the contract’s plain language states that appellant

retained the right to farm the property until appellee (1)

started construction on any portion of the property, or (2)

“otherwise must occupy said portion of the property in

connection with ‘its intended use thereof.’” Id. at ¶ 26. We

determined that the language provides that appellant retained

the right to farm the property “until a certain time when

[appellee] sought to use the property [it] purchased.” Id. We

interpreted the phrase “its intended use” to mean that appellee

“could not arbitrarily occupy the property just to terminate

[appellant]’s farming rights. Instead, [appellee] must have

occupied the property with the intent to use it for some

envisioned purpose.” Id.

{¶10} We additionally pointed out that the contract’s

integration clause states that the contract “embodies the entire

agreement between Seller and Buyer.” Id. at ¶ 25.

{¶11} Next, we recognized that the superintendent’s July

2015 letter gave appellant notice that appellee intended to

occupy and use the property. We observed that appellant’s 7 PICKAWAY, 21CA7

“entire complaint [was] based upon the assertion that

[appellee]’s notice breached the terms of the purchase contract

because [appellee] did not intend to use [the property] as a

site for a new school.” Id. at ¶ 27. We therefore concluded

that, because the contract did not require appellee to build a

school on the property, appellant’s complaint failed to set

forth a claim upon which relief could be granted. In sum, we

concluded that the “purchase contract presents an insuperable

bar to relief on [appellant]’s breach of contract claims.” Id.

Appellant subsequently filed a notice of appeal with the Ohio

Supreme Court.

{¶12} Appellant also filed a Civ.R. 60(B) motion for relief

from judgment and argued that appellee’s notice to occupy the

property was invalid for the failure to comply with the Ohio

Sunshine Law, R.C. 121.12.2 Appellant claimed that (1) the board

did not place the issue on the agenda of a public meeting, and

(2) new evidence showed that the parties intended that appellee

would use the property as a school site. On November 8, 2017,

2 The Ohio Supreme Court has referred to this law as the “Open Meetings Act.” State ex rel. More Bratenahl v. Village of Bratenahl, 157 Ohio St.3d 309, 2019-Ohio-3233, 136 N.E.3d 447, ¶ 8. 8 PICKAWAY, 21CA7

appellee filed a motion to stay discovery, which the trial court

later granted.

{¶13} On December 20, 2017, the Ohio Supreme Court declined

to accept appellant’s appeal of our decision that affirmed the

trial court’s decision that granted appellee’s motion to

dismiss. 151 Ohio St.3d 1474, 2017-Ohio-9111, 87 N.E.3d 1271.

{¶14} Subsequently, the trial court denied appellant’s

Civ.R. 60(B) motion and determined that laches barred

appellant’s Sunshine Law allegation and the law-of-the-case

doctrine precluded it from considering appellant’s claim

regarding the meaning of the purchase contract. Appellant

appealed this decision.

{¶15} On January 9, 2019, we affirmed the trial court’s

decision to deny appellant’s Civ.R. 60(B) motion. We determined

that although appellant did not timely file his motion as it

related to the Sunshine Law allegation, appellant could have

discovered the basis for the claim through a “pre-suit public-

records request.” Id. at ¶ 24. We also concluded that the law-

of-the-case doctrine prevents appellant from relitigating his

claim that the purchase contract’s phrase, “its intend use,” is

ambiguous so as to permit appellant to introduce parol evidence 9 PICKAWAY, 21CA7

to establish that the parties intended that appellee must use

the property as a school site.

{¶16} Following our remand, the trial court’s staff attorney

contacted the parties via email to ask how they intended to

proceed, and the court set the matter for a status conference.

In response to the staff attorney’s email, appellant’s counsel

outlined a proposed case schedule as follows:

Appellee’s deadline to file March 1, 2019 amended pleading Appellant’s deadline to file March 21, 2019 an answer to appellee’s amended pleadings and/or amend its pleadings Initial disclosure of April 26, 2019 witnesses Supplemental disclosure of August 16, 2019 witnesses Dispositive motion deadline November 15, 2019 Discovery cutoff December 31, 2019 Trial February/March 2020

{¶17} Appellee’s counsel responded:

We are fine with the proposed case schedule with the exception of the discovery cut-off and dispositive motion deadline. I would prefer that discovery close before the dispositive motion deadline and suggest that we simpl[y] flip those dates. 10 PICKAWAY, 21CA7

{¶18} Appellant’s counsel replied that the “revision is

fine” and set forth a “new proposed schedule” that changed the

dates for discovery and dispositive motions.

{¶19} On March 18, 2019, the trial court issued a scheduling

order that denied appellee’s motion for leave to amend its 2016

complaint, ordered dispositive motions to be filed by July 8,

2019, and set the matter for a jury trial. Notably, the

scheduling order did not include dates for either party to amend

the pleadings.

{¶20} On March 21, 2019, appellant filed a first amended

answer to appellee’s complaint and first amended counterclaims.

Appellant, however, did not ask the court for leave to file the

complaint. Instead, appellant asserted that appellee provided

written consent to the amendment. Appellant attached the series

of emails between the court’s staff attorney and the parties

that discussed a proposed case schedule and contended that in

those emails, appellee provided written consent to appellant’s

amended answer and counterclaims. The amended counterclaims

contained the following claims for relief: (1) breach of

contract; (2) rescission for material mistake; (3) breach of

conditional gift; (4) failure of meeting of the minds; (5) 11 PICKAWAY, 21CA7

reformation of purchase contract; and (6) Sunshine Law

violation.

{¶21} Appellee subsequently filed a motion to strike

appellant’s amended answer and counterclaims. Appellee (1)

disputed appellant’s claim that it had consented to appellant’s

amended pleading when it agreed in an email to a proposed case

schedule, (2) emphasized that the email discussions involved

only a proposed schedule that set forth dates for both parties

to amend their pleadings, and (3) noted that, after the March

18, 2019 status conference, the trial court set its own

schedule. The court’s scheduling order denied appellee’s

pending motion to amend its complaint and did not include a date

for appellant to file an amended answer and counterclaims.

Appellee stated that the parties had discussed a proposed

schedule only and that the court’s own case scheduling order

took precedence.

{¶22} On April 17, 2019, the trial court determined that,

because appellant filed his amended answer and counterclaims

without leave of court and without appellee’s consent, the

amended answer and counterclaims must be stricken from the

record. 12 PICKAWAY, 21CA7

{¶23} On April 19, 2019, appellant filed a memorandum contra

appellee’s motion to strike and a motion for leave to file his

amended pleading instanter and a motion for reconsideration.

Additionally, appellant filed a notice of appeal from the

court’s April 17, 2019 judgment striking his amended pleading

from the record.

{¶24} On July 8, 2019, appellee requested summary judgment

and asserted that the doctrine of res judicata prevents

continued litigation. Appellee further argued that because the

trial court and this Court already determined that appellant

does not have any rights to the property, no genuine issues of

material fact remain. Thus, appellee requested (1) a judgment

declaring that it properly terminated appellant’s farming rights

as of October 2015 and that appellant’s continued use of the

property constitutes a trespass; (2) a judgment ejecting

appellant from the property; (3) a judgment permanently

enjoining appellant from entering, using, or otherwise

possessing the property; and (4) compensatory damages,

disgorgement of profits earned from the property, punitive

damages, and attorneys’ fees and expenses.

{¶25} On July 22, 2019, appellant filed a motion to strike

appellee’s summary judgment motion and asserted that his notice 13 PICKAWAY, 21CA7

of appeal divested the trial court of jurisdiction. He also

filed a motion to continue the matter after the appeal is

resolved so that he can have additional time, under Civ.R.

56(F), to conduct discovery. Appellant also filed a memorandum

contra and contended that appellee did not satisfy its initial

Civ.R. 56(C) burden and issues remain regarding whether

appellant has a right to farm or use the property and whether

appellee’s use of the property is legitimate. Appellant argued

that “[n]o court has determined, or even reviewed, the issue of

whether [appellee]’s clandestine plan to needlessly occupy the

Property was legally sufficient under the Contract or if it was

an impermissibly arbitrary plan concocted ‘just to terminate

[appellant]’s farming rights.’”

{¶26} After this Court dismissed appellant’s appeal from the

trial court’s decision that struck his amended answer and

counterclaims, the trial court held a hearing to consider the

outstanding matters. First, the court allowed appellant’s

counsel to address his first amended answer and counterclaims.

Counsel stated that in January 2019, he received a notice from

the court that asked the parties to agree to a proposed

scheduling order and to submit it to the court. Counsel sent an

email to appellee’s counsel with proposed dates for filing 14 PICKAWAY, 21CA7

certain documents and this email included dates to submit

amended pleadings. Appellee’s counsel responded that she would

change the dates to complete discovery and to file dispositive

motions. Appellant’s counsel then “agreed to that change and we

submitted that proposed order.” Appellant’s counsel stated that

he “interpreted [appellee’s counsel’s] consent in writing to

that deadline of March 21st for [appellant] to file its amended

pleadings to be written consent to the pleadings, and that was

the basis for the filing of the motion at first.”

{¶27} Appellee’s counsel responded that she did not consent

to appellant’s filing of an amended answer and counterclaim, but

instead, stated that the parties “exchanged emails regarding a

proposed case schedule, which is entirely procedural in nature.”

She stated that “the first time [that she] saw the proposed

amended answer and counterclaim was after it was filed,” that

she “did not consent to the substance of it” and “did not and

do[es] not consent to the filing of their amended answer and

counterclaim.”

{¶28} On December 23, 2019, the trial court denied

appellant’s motion for leave to file an amended answer and

counterclaims. The court rejected appellant’s claim that

appellee’s counsel consented to the filing an amended complaint 15 PICKAWAY, 21CA7

when counsel agreed, via email, to a case scheduling order that

appellant’s counsel had proposed. Instead, the court stated

that the emails concerned “scheduling negotiation * * * in

preparation for a pre-trial conference with [the trial] Court,

in which [the trial] Court disagreed with the proposed schedules

and imposed its own schedule.” The court thus denied

counterclaims. The court then gave both parties additional time

to provide any further responses to appellee’s pending summary

judgment motion.

{¶29} On January 10, 2020, appellant filed a supplemental

memorandum in opposition to appellee’s summary judgment motion

and asserted that genuine issues of material fact remained for

resolution at trial regarding (1) whether appellee’s use of the

property for a storage shed is arbitrary and solely to terminate

appellant’s farming rights, (2) whether appellee’s efforts to

terminate appellant’s farming rights violated the Ohio Sunshine

Law, and (3) whether appellee had a legal basis to send a 2015

termination notice “where documentation shows that [appellee]

did not concoct its ‘intended use’ for the property until at

least March 2016.” 16 PICKAWAY, 21CA7

{¶30} On March 26, 2020, the trial court granted appellee

summary judgment. The court first determined that res judicata

barred appellant’s counterclaims. The court next considered

whether appellee is entitled to summary judgment regarding the

claims raised in its complaint and determined that no genuine

issues of material fact remained regarding whether appellant

trespassed on the property. The court noted that the previous

decisions established that appellant did not have any right to

the property or any right to continue farming any portion of the

property and, thus, his continued presence on the property

constituted a trespass. The court declared that appellant does

not have any rights to the property and that he may not enter,

use, or possess the property. With that, the court set the

matter for a damages hearing.

{¶31} On April 9, 2021, the parties entered into a

“stipulated final judgment entry.” In this entry, the parties

agreed to divide the $34,173.14 currently held by the receiver

as follows: (1) $20,000 to appellant; and (2) the remaining

balance to appellee. This appeal followed.

I

{¶32} In his first assignment of error, appellant asserts

that the trial court abused its discretion by denying his 17 PICKAWAY, 21CA7

request to conduct discovery. Appellant contends that the trial

court’s decision prevented him from fully preparing his case for

litigation.

{¶33} Appellee argues that the trial court did not abuse its

discretion by staying discovery until the court ruled on

appellee’s summary judgment motion because that decision was

perfectly rational because appellee sought summary judgment

based upon the doctrine of res judicata. Appellee claims that

any discovery that appellant would have pursued would not have

helped him overcome the res-judicata bar and would have been

completely unnecessary.

{¶34} “Appellate courts generally review a discovery dispute

under an abuse-of-discretion standard.” Torres Friedenberg v.

Friedenberg, 161 Ohio St.3d 98, 2020-Ohio-3345, 161 N.E.3d 546,

¶ 22. Accordingly, a decision to grant or deny a stay of

discovery rests within the sound discretion of the trial court.

Alford v. Arbors at Gallipolis, 2018-Ohio-4653, 123 N.E.3d 305,

¶ 70 (4th Dist.). Moreover, a reviewing court will not overturn

a trial court’s ruling regarding a Civ.R. 56(F)3 continuance

3 Civ.R. 56(F) provides as follows:

Should it appear from the affidavits of a party opposing the motion for summary judgment that the party 18 PICKAWAY, 21CA7

unless the trial court abused its discretion. State ex rel.

Denton v. Bedinghaus, 98 Ohio St.3d 298, 305, 2003-Ohio-861, 784

N.E.2d 99, ¶ 31, citing Mauzy v. Kelly Services, Inc., 75 Ohio

St.3d 578, 592, 664 N.E.2d 1272 (1996); Bender v. Logan, 2016-

Ohio-5317, 76 N.E.3d 336, ¶ 86 (4th Dist.); Citizens Bank of

Logan v. Hines, 4th Dist. Athens No. 12CA5, 2013-Ohio-690, ¶ 8.

“‘[A]buse of discretion’ [means] an ‘unreasonable, arbitrary, or

unconscionable use of discretion, or * * * a view or action that

no conscientious judge could honestly have taken.’” State v.

Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶

67, quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493,

894 N.E.2d 671, ¶ 23. “An abuse of discretion includes a

situation in which a trial court did not engage in a ‘“sound

reasoning process.”’” State v. Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, 986 N.E.2d 971, ¶ 34, quoting State v. Morris,

132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14,

quoting AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

cannot for sufficient reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just. 19 PICKAWAY, 21CA7

(1990). The abuse of discretion standard is deferential and

does not permit an appellate court to simply substitute its

judgment for that of the trial court. Darmond at ¶ 34.

{¶35} We further observe, however, that a trial court’s

discretion “is not without limits.” Mauzy v. Kelly Services,

Inc., 75 Ohio St.3d 578, 592, 664 N.E.2d 1272 (1996). As the

Mauzy court explained:

Although unusual, appellate courts will reverse a discovery order “when the trial court has erroneously denied or limited discovery.” 8 Wright, Miller & Marcus, Federal Practice & Procedure (2 Ed.1994) 92, Section 2006. Thus, “[a]n appellate court will reverse the decision of a trial court that extinguishes a party’s right to discovery if the trial court’s decision is improvident and affects the discovering party’s substantial rights.” Rossman v. Rossman (1975), 47 Ohio App.2d 103, 110, 1 O.O.3d 206, 210, 352 N.E.2d 149, 153– 154.

Id. A trial court ordinarily abuses its discretion by limiting

discovery when “[t]he record discloses that further discovery

was warranted in order to fully prepare to litigate” the

pertinent legal issues. Id.

{¶36} On the other hand, “‘[a] trial court acts within its

discretion when it grants a stay of discovery pending the

resolution of a dispositive motion.’” State ex rel. Ebbing v.

Ricketts, 133 Ohio St.3d 339, 2012-Ohio-4699, 978 N.E.2d 188, ¶

21, quoting Thomson v. Ohio Dept. of Rehab. & Corr., 10th Dist. 20 PICKAWAY, 21CA7

No. 09AP–782, 2010-Ohio-416, ¶ 32. Furthermore, a trial court

does not abuse its discretion by staying discovery or by

“overruling a Civ.R. 56(F) motion to continue when further

discovery would prove fruitless.” Bender v. Logan, supra, at ¶

88, citing Fifth Third Mortgage Co. v. Rankin, 4th Dist.

Pickaway No. 10CA45, 2011-Ohio-2757, ¶ 33; Battle v. Favreau,

5th Dist. Morgan No. 15AP0007, 2015-Ohio-5106, ¶ 17, quoting

Elliott v. Perez, 751 F.2d 1472, 1478 (C.A.5 1985) (“‘discovery

should not be allowed’” until threshold issue resolved).

Discovery ordinarily is fruitless when additional time would not

provide any benefit. Davis v. Eachus, 4th Dist. Pike No.

04CA725, 2004-Ohio-5720, ¶ 41.

{¶37} In Davis, for example, we determined that when res

judicata is a dispositive issue, then giving a party additional

time to conduct discovery will not provide any benefit. We

explained:

in light of our conclusion that the non-attorney defendants are entitled to dismissal on res judicata grounds, we fail to see how the appellant could have suffered any prejudice arising from the trial court’s failure to provide the appellant with additional time to conduct discovery.

Id.

{¶38} Other courts likewise have determined that when res

judicata is a dispositive issue or when a motion raises a purely 21 PICKAWAY, 21CA7

legal issue, then discovery generally will be fruitless. State

ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children & Family

Servs., 110 Ohio St.3d 343, 2006-Ohio-4574, 853 N.E.2d 657, ¶ 10

(additional discovery not necessary to resolve summary judgment

motion that involved “purely legal arguments”); Dehlendorf v.

Ritchey, 10th Dist. Franklin No. 12AP-87, 2012-Ohio-5193, ¶ 23

(court did not abuse discretion by staying discovery when

appellant did not establish that additional discovery “could

lead to admissible evidence related to the issue of collateral

estoppel”).

{¶39} In the case sub judice, appellee asserted that it is

entitled to summary judgment based upon the doctrine of res

judicata. Appellee’s motion involved a purely legal issue –

whether the prior proceedings between the parties demonstrated

that res judicata precluded appellant’s counterclaims and

established appellee’s entitlement to relief. Here, additional

discovery would not have helped appellant to illustrate that the

doctrine of res judicata is inapplicable. The trial court,

therefore, did not abuse its discretion by staying discovery or

by overruling appellant’s Civ.R. 56(F) motion for additional

time to conduct discovery. 22 PICKAWAY, 21CA7

{¶40} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II

{¶41} In his second assignment of error, appellant asserts

that the trial court abused its discretion by striking

appellant’s amended answer and counterclaims. Appellant first

argues that opposing counsel consented to the amendment via

email and that this email constitutes written consent under

Civ.R. 15(A). Appellant claims that the question regarding a

party’s consent to an amended pleading under Civ.R. 15(A) is a

question of law for this Court to decide, but if this court

determines that the email did not constitute written consent, we

should review the trial court’s decision to deny his motion for

leave to amend for an abuse of discretion.

{¶42} Appellant further asserts that the trial court

prematurely entered its decision without affording appellant an

opportunity to respond. Appellant also challenges the lack of

analysis contained in the trial court’s decision.

{¶43} Appellee disputes appellant’s assertion that the

question regarding a party’s written consent is a question of

law for this Court to decide. Instead, appellee argues that

whether a party consented to a Civ.R. 15(A) amendment is a 23 PICKAWAY, 21CA7

factual matter reserved for the trial court and the issue is

subject to a manifest weight of the evidence standard.

{¶44} Appellee also asserts that appellant had an adequate

opportunity to be heard regarding the issue of written consent.

Appellee claims that the trial court ultimately considered all

of appellant’s arguments.

{¶45} Appellee additionally argues that the trial court’s

denial of appellant’s motion for leave to amend his answer and

counterclaims did not constitute an abuse of discretion.

Appellee contends that res judicata barred the counterclaims

that appellant sought to amend and, as a consequence, rendered

any amendments futile. Appellee notes that appellant’s motion

for leave to amend relied upon the same words that this Court

interpreted in our March 27, 2017 decision, i.e., “its intended

use.” Appellee thus argues that appellant’s amended

counterclaims constitute an attempt to relitigate an issue that

this Court previously decided.

A

{¶46} Initially, we note that the “ultimate decision to

grant leave to amend a pleading is vested in the sound

discretion of the trial court and its decision on such matters

will not be reversed absent a showing of an abuse of that 24 PICKAWAY, 21CA7

discretion.” Martin v. Wandling, 2016-Ohio-3032, 65 N.E.3d 103,

¶ 34 (4th Dist.); Rose v. Cochran, 4th Dist. Ross No. 14CA3445,

2014-Ohio-4979, ¶ 17. Additionally, appellate courts review “a

trial court’s orders regarding docket and case management for an

abuse of discretion.” King v. Divoky, 9th Dist. Summit No. CV

29769, 2021-Ohio-1712, ¶ 26.

B

{¶47} Civ.R. 15(A) states that after the initial pleadings

have been filed, “a party may amend its pleading only with the

opposing party’s written consent or the court’s leave.”

Although Civ.R. 15(A) provides that leave of court shall be

freely given when justice so requires, litigants do not have an

“absolute or unlimited right to amend a complaint.” State ex

rel. Jeffers v. Athens Cty. Commrs., 4th Dist. Athens No.

15CA27, 2016-Ohio-8119, ¶ 64, citing Kinchen v. Mays, 8th Dist.

Cuyahoga No. 100672, 2014–Ohio–3325, ¶ 17.

{¶48} We further note that Civ.R. 16(A) requires litigants

to attempt to agree upon a case management schedule and for the

court to “consider such agreements in the establishment of any

such schedule.” Nevertheless, it is well-established that a

trial court has “inherent authority to control its own docket

and manage the cases before it.” Holsopple v. Holsopple, 9th 25 PICKAWAY, 21CA7

Dist. Summit No. 29441, 2020-Ohio-1210, ¶ 18; Matrix

Acquisitions, L.L.C. v. Merriman, 8th Dist. Cuyahoga No. 96280,

2011-Ohio-4419, ¶ 8, quoting Mackey v. Steve Barry Ford, Inc.,

8th Dist. Cuyahoga No. 58681, 1991 WL 95081, *2 (May 30, 1991);

Rudolph v. Ohio Dept. of Human Services, 4th Dist. Meigs No.

00CA023, 2001 WL 379112, *2 (Apr. 9, 2001); see State ex rel.

Haley v. Davis, 145 Ohio St.3d 297, 2016-Ohio-534, 49 N.E.3d

279, ¶ 13, citing Horman v. Veverka, 30 Ohio St.3d 41, 42–43,

506 N.E.2d 218 (1987) (recognizing “trial court’s inherent power

with respect to its orders and docket”).

{¶49} To that end, Civ.R. 16(B)(3)(a) allows trial courts to

enter a scheduling order that “limit[s] the time to * * * amend

the pleadings.” Once a court enters a scheduling order, then

the “schedule may be modified only for good cause and with the

court’s consent.” Civ.R. 16(B)(4). Furthermore, Civ.R. 16(D)

states that a court’s scheduling order “controls the course of

the action unless the court modifies it.”

{¶50} In the case at bar, appellant first contends that

appellee gave written consent to his amended answer and

counterclaims when appellee agreed via email to appellant’s

proposed case schedule. Appellant asserts that whether a party

gave written consent is a legal issue that we review on a de- 26 PICKAWAY, 21CA7

novo basis. Appellee, on the other hand, argues that whether it

gave written consent is a factual finding subject to a manifest

weight of the evidence standard of review.

{¶51} In the case sub judice, regardless of which standard

should apply, we do not believe that the trial court erred by

determining that appellee did not consent to appellant’s amended

answer and counterclaims. As the trial court recognized, the

parties discussed a proposed case schedule that the court had

yet to approve. Part of the parties’ proposed case schedule

included a date for appellee to file an amended complaint and a

date for appellant to file an amended answer and counterclaims.

The trial court, however, did not adopt the parties’ proposed

case schedule and did not allow either party to amend their

pleadings. Instead, the trial court imposed its own case

schedule. In view of the fact that the trial court did not

adopt the parties’ proposed case schedule, appellee cannot be

deemed to have consented to appellant’s amended answer and

counterclaims. Rather, any consent that appellee may have given

was premised upon the trial court adopting the parties’ proposed

case schedule, which included dates for both parties to amend

their pleadings. Once the court entered its own scheduling

order, that order controlled the proceedings. See Civ.R. 16(D) 27 PICKAWAY, 21CA7

(a court’s scheduling order “controls the course of the action

unless the court modifies it”).

{¶52} Moreover, we do not believe that the trial court

abused its discretion by striking appellant’s amended answer and

counterclaims or by denying appellant’s motion for leave to file

the amended pleading. “The general policy of Civ.R. 15(A)

favors liberal amendment of pleadings.” State ex rel. Reese v.

Ohio Dept. of Rehab. & Correction Legal Dept., ___ Ohio St.3d

___, 2022-Ohio-2105, ___ N.E.3d ___, ¶ 30. A trial court

ordinarily abuses its discretion by denying a timely filed

motion for leave to file an amended pleading when the amendment

would allow the pleading party to “set forth a claim upon which

relief can be granted.” Peterson v. Teodosio, 34 Ohio St.2d

161, 175, 297 N.E.2d 113 (1973). Conversely, a trial court does

not abuse its discretion by denying a party leave to file an

amended pleading when amending the pleading “would be futile.”

State ex rel. McDougald v. Greene, 161 Ohio St.3d 130, 2020-

Ohio-3686, 161 N.E.3d 575, ¶ 20, citing ISCO Indus., Inc. v.

Great Am. Ins. Co., 2019-Ohio-4852, 148 N.E.3d 1279, ¶ 52 (1st

Dist.); see Wilmington Steel Prods., Inc. v. Cleveland Elec.

Illum. Co., 60 Ohio St.3d 120, 123, 573 N.E.2d 622 (1991)

(“[W]here a plaintiff fails to make a prima facie showing of 28 PICKAWAY, 21CA7

support for new matters sought to be pleaded, a trial court acts

within its discretion to deny a motion to amend the pleading.”);

Kinchen v. Mays, supra, at ¶ 17.

{¶53} In the case sub judice, we do not believe that the

trial court abused its discretion by striking appellant’s

amended answer and counterclaims and by denying him leave to

file an amended pleading. Permitting appellant to file an

amended answer and counterclaims would have been futile due to

the res judicata bar.

It has long been the law of Ohio that “an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit.” * * * The doctrine of res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it.

Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62, 558

N.E.2d 1178 (1990), quoting Rogers v. Whitehall, 25 Ohio St.3d

67, 69, 494 N.E.2d 1387 (1986).

{¶54} The res judicata doctrine applies even if the first

lawsuit did not “explore[] all the possible theories of relief.”

Id. Thus, res judicata extinguishes a litigant’s claim even if

the litigant “‘is prepared in the second action (1) To present

evidence or grounds or theories of the case not presented in the

first action, or (2) To seek remedies or forms of relief not 29 PICKAWAY, 21CA7

demanded in the first action.’” Grava, 73 Ohio St.3d at 383,

quoting 1 Restatement of the Law 2d, Judgments (1982) 209,

Section 25; see Brown v. Dayton, 89 Ohio St.3d 245, 248, 730

N.E.2d 958 (2000).

{¶55} In the case sub judice, in the first lawsuit between

the same parties that involved the same purchase contract, a

final judgment had been entered. This existing final judgment

between the parties “is conclusive as to all claims which were

or might have been litigated in a first lawsuit.” Natl.

Amusements, 53 Ohio St.3d at 62, quoting Rogers v. Whitehall, 25

Ohio St.3d 67, 69, 494 N.E.2d 1387 (1986). Because appellant

did not “present every ground for relief in the first action,”

he is “forever barred from asserting [them].” Id.

Consequently, the trial court did not abuse its discretion by

striking appellant’s amended pleading or by denying him leave to

file the amended pleading.

{¶56} Appellant also asserts that the trial court

prematurely ruled upon appellee’s motion to strike and deprived

him of an opportunity to be heard. We, however, agree with

appellee that the trial court ultimately considered all of

appellant’s arguments. In December 2019, the trial court held a

hearing and allowed appellant to present an argument regarding 30 PICKAWAY, 21CA7

his amended answer and counterclaims and his claim that

appellee’s counsel had agreed to the filing. Consequently, any

error that may have occurred by prematurely striking appellant’s

amended answer and counterclaims is harmless error that we must

disregard. See Watershed Mgt., L.L.C. v. Neff, 4th Dist.

Pickaway No. 10CA42, 2012-Ohio-1020, ¶ 67 (trial court errs by

ruling upon motion before allowing nonmoving party adequate

response time but error may be harmless); Entingh v. Old Man’s

Cave Chalets, Inc., 4th Dist. No. 08CA14, 2009–Ohio–2242, ¶ 21–

22 (ruling on motion to compel before adverse party had

opportunity to respond is harmless error when court considered

adverse party’s argument in a subsequent motion to vacate the

premature ruling).

{¶57} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III

{¶58} In his third assignment of error, appellant asserts

that the trial court erred by granting appellee summary

judgment. Appellant claims that appellee failed to satisfy its

initial Civ.R. 56 burden and that the following questions of

fact remain: (1) whether appellee properly terminated

appellant’s farming rights; (2) if so, whether appellee 31 PICKAWAY, 21CA7

terminated those rights as to the entire tract or to only a

portion of the tract; and (3) whether appellee’s termination, to

the extent that it was legally enforceable, was effective to

prohibit all access and all farming activities during the 2016

crop season.

{¶59} Appellee asserts that appellant fails to consider the

primary basis for the trial court’s summary judgment decision,

i.e., that res judicata bars appellant’s claims. Appellee

contends that appellant’s arguments remain focused upon the

contract language even though the parties already have litigated

the meaning of the contract language.

{¶60} Initially, we emphasize that appellate courts conduct

a de novo review of trial court summary judgment decisions.

E.g., State ex rel. Novak, L.L.P. v. Ambrose, 156 Ohio St.3d

425, 2019-Ohio-1329, 128 N.E.3d 209, ¶ 8; Pelletier v. Campbell,

153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13;

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d

241 (1996). Accordingly, an appellate court need not defer to a

trial court’s decision, but instead must independently review

the record to determine if summary judgment is appropriate.

Grafton, 77 Ohio St.3d at 105. 32 PICKAWAY, 21CA7

Civ.R. 56(C) provides in relevant part:

* * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.

{¶61} Therefore, pursuant to Civ.R. 56, a trial court may

not award summary judgment unless the evidence demonstrates

that: (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) after viewing the evidence most strongly

in favor of the nonmoving party, reasonable minds can come to

but one conclusion, and that conclusion is adverse to the

nonmoving party. E.g., State ex rel. Whittaker v. Lucas Cty.

Prosecutor’s Office, 164 Ohio St.3d 151, 2021-Ohio-1241, 172

N.E.3d 143, ¶ 8; Pelletier at ¶ 13; Temple v. Wean United, Inc.,

50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). 33 PICKAWAY, 21CA7

{¶62} In the case sub judice, the trial court granted

appellee summary judgment based upon the doctrine of res

judicata. “The doctrine of res judicata encompasses the two

related concepts of claim preclusion, also known as res judicata

or estoppel by judgment, and issue preclusion, also known as

collateral estoppel.” O’Nesti v. DeBartolo Realty Corp., 113

Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 6; accord Baker

by Thomas v. Gen. Motors Corp., 522 U.S. 222, 232–34, 118 S.Ct.

657, 663–64, 139 L.Ed.2d 580 (1998), fn.5 (citations omitted)

(the term, “res judicata,” traditionally describes both “claim

preclusion (a valid final adjudication of a claim precludes a

second action on that claim or any part of it); and (2) issue

preclusion, long called ‘collateral estoppel’ (an issue of fact

or law, actually litigated and resolved by a valid final

judgment, binds the parties in a subsequent action, whether on

the same or a different claim”)).

With regard to claim preclusion, a final judgment or decree rendered on the merits by a court of competent jurisdiction is a complete bar to any subsequent action on the same claim between the same parties or those in privity with them. [Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 653 N.E.2d 226 (1995)], citing Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943), paragraph one of the syllabus, and Whitehead [v. Gen. Tel. Co., 20 Ohio St.2d 108, 254 N.E.2d 10 (1969)], paragraph one of the syllabus. Moreover, an existing 34 PICKAWAY, 21CA7

final judgment or decree between the parties is conclusive as to all claims that were or might have been litigated in a first lawsuit. [Grava] at 382, 653 N.E.2d 226, citing Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178 (1990). “‘The doctrine of res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it.’” Id. at 382, 653 N.E.2d 226, quoting Natl. Amusements at 62, 558 N.E.2d 1178.

Brooks v. Kelly, 144 Ohio St.3d 322, 2015-Ohio-2805, 43 N.E.3d

385, ¶ 7.

{¶63} Issue preclusion, or collateral estoppel, “‘precludes

the relitigation, in a second action, of an issue that has been

actually and necessarily litigated and determined in a prior

action.’” Warrensville Hts. City School Dist. Bd. of Edn. v.

Cuyahoga Cty. Bd. of Revision, 152 Ohio St.3d 277, 2017-Ohio-

8845, 95 N.E.3d 359, ¶ 9, quoting Whitehead v. Gen. Tel. Co., 20

Ohio St.2d 108, 112, 254 N.E.2d 10 (1969); accord Lowe’s Home

Centers, Inc. v. Washington Cty. Bd. of Revision, 154 Ohio St.3d

463, 2018-Ohio-1974, 116 N.E.3d 79, ¶ 33; Ft. Frye Teachers

Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392,

395, 692 N.E.2d 140 (1998).

While the merger and bar aspects of res judicata have the effect of precluding the relitigation of the same cause of action, the collateral estoppel aspect precludes the relitigation, in a second action, of an issue that has been actually and necessarily litigated and determined in a prior action that was based on a different cause of action. “In short, under the rule of 35 PICKAWAY, 21CA7

collateral estoppel, even where the cause of action is different in a subsequent suit, a judgment in a prior suit may nevertheless affect the outcome of the second suit.”

Fort Frye, 81 Ohio St.3d at 395 (citation omitted), quoting

Whitehead, 20 Ohio St.2d at 112.

{¶64} The res judicata doctrine, therefore, “serves to

preclude a defendant who has had his day in court from seeking a

second on that same issue.” State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245, 846 N.E.2d 824, ¶ 18, citing State ex rel.

Willys–Overland Co. v. Clark (1925), 112 Ohio St. 263, 268, 147

N.E. 33. The doctrine “promotes the principles of finality and

judicial economy by preventing endless relitigation of an issue

on which a defendant has already received a full and fair

opportunity to be heard.” Id.

{¶65} In the case at bar, we believe that the trial court

correctly determined that the doctrine of res judicata bars

appellant’s counterclaims. Appellant’s counterclaims seek to

relitigate the same claims that were, or could have been,

litigated in the first lawsuit. In the first lawsuit, we

determined that the contract language presented an “insuperable

bar” to appellant’s breach of contract claims. Appellant’s

counterclaims in the present case essentially repeat the claims

raised in the first lawsuit. Therefore, our previous decision 36 PICKAWAY, 21CA7

governs the outcome of appellant’s counterclaims, and appellant

is barred from relitigating those claims.

{¶66} Moreover, res judicata bars appellant’s additional

arguments that appellee’s termination notice violated the

Sunshine Law and that he retained a right to continue farming a

portion of the property. Appellant could have raised the

Sunshine Law claim and the argument that he retained a right to

continue farming a portion of the property in the first lawsuit,

but did not. Therefore, res judicata precludes appellant from

raising these additional claims.

{¶67} Appellant nevertheless argues that “in the context of

declaratory judgments, ‘res judicata precludes only claims that

were actually decided.’” Appellant’s Reply Brief at 2, quoting

State ex rel. Trafalgar Corp. V. Miami Cty. Bd. Of Commrs., 104

Ohio St.3d 350, 2004-Ohio-6406, 819 N.E.2d 1040, ¶ 22. However,

even if true, we point out that in the first lawsuit appellant

claimed that appellee breached the purchase contract in addition

to seeking a declaratory judgment and other forms of relief.

Our decision in the first lawsuit addressed appellant’s breach

of contract claim and determined that our resolution of his

breach of contract claim was dispositive of the other claims

raised in his complaint, all of which focused upon the language 37 PICKAWAY, 21CA7

of the contract and appellee’s alleged breach of the contract.

See Struckman I at ¶ 15 and ¶ 27 (appellant argued that trial

court erred by dismissing complaint when he “set forth facts

that would allow him to recover on his breach of contract

claims” and stated that contract language presented “an

insuperable bar to relief on [appellant]’s breach of contract

claims”). Thus, we believe that appellant’s reliance upon

Trafalgar is misplaced.

C

{¶68} Appellant also argues that the trial court incorrectly

entered summary judgment in appellee’s favor regarding its

trespass claim. “‘The elements of civil trespass are (1) an

unauthorized intentional act and (2) entry upon land in the

possession of another.’” Ogle v. Hocking Cty., 4th Dist.

Hocking No. 14CA3, 2014-Ohio-5422, ¶ 39, quoting DiPasquale v.

Costas, 186 Ohio App.3d 121, 2010–Ohio–832, 926 N.E.2d 682, ¶

102 (2d Dist.). Appellant contends that whether he had a

continued right to enter the property in 2016 constitutes a

genuine issue of material fact that precludes summary judgment

in appellee’s favor. In particular, appellant asserts that the

following contract language shows that he had the right to

continue farming the property in 2016: 38 PICKAWAY, 21CA7

Seller shall be entitled to without charge from Buyer continue its Farming Activities on any part of the Real Estate purchased by buyer until Buyer commences construction on any such portion of the Real Estate or otherwise must occupy said portion of the Real Estate in connection with its intended use thereof. In the event Buyer notifies Seller by October 1 (Buyer shall provide Seller with as much advance notice as is reasonably possible of its intent to use the Real Estate) of any given year that Buyer intends to use the Real Estate purchased by Buyer, Seller agrees that Buyer shall not be liable to Seller for any loss or damage incurred by Seller, including the cost of any damaged crops on the Real Estate, as a result of Buyer’s use of said Real Estate in the ensuing year. If Buyer fails to notify Seller of its intentions by October 1 of any given year as described above, then Buyer agrees to reimburse Seller for any loss or damage to Seller’s crops planted on the Real Estate purchased by Buyer as a result of Buyer’s use of said Real Estate in the ensuing year, in amounts mutually agreed to by both Seller and Buyer, or as determined by the actual loss incurred by Seller.

Appellant thus contends that res judicata does not prevent him

from litigating this issue because none of the previous court

decisions actually decided this specific issue.

{¶69} Assuming, arguendo, that res judicata does not bar

appellant from litigating this issue, we do not agree with his

argument that this contract language demonstrates that he had a

right to continue farming the property in 2016 and that he could

not have been trespassing on the property.

{¶70} The interpretation of a contract is a question of law

that appellate courts independently review. Sharonville v. Am.

Emp. Ins. Co., 109 Ohio St.3d 186, 2006-Ohio-2180, 846 N.E.2d 39 PICKAWAY, 21CA7

833, ¶ 6. “In all cases involving contract interpretation, we

start with the primary interpretive rule that courts should give

effect to the intentions of the parties as expressed in the

language of their written agreement.” Sutton Bank v.

Progressive Polymers, L.L.C., 161 Ohio St.3d 387, 2020-Ohio-

5101, 163 N.E.3d 546, ¶ 15, citing Sunoco, Inc. (R&M) v. Toledo

Edison Co., 129 Ohio St.3d 397, 2011-Ohio-2720, 953 N.E.2d 285,

¶ 37. Courts presume that the language used in the contract

reflects the parties’ intent. Smith v. Erie Ins. Co., 148 Ohio

St.3d 192, 2016-Ohio-7742, 69 N.E.3d 711, ¶ 18; Westfield Ins.

Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d

1256, ¶ 11.

{¶71} Thus, courts must first review the plain and ordinary

meaning of the language used in a contract “unless manifest

absurdity results, or unless some other meaning is clearly

evidenced from the face or overall contents of the instrument.”

Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374

N.E.2d 146 (1978), paragraph two of the syllabus; accord Galatis

at ¶ 11. If the language is clear and unambiguous, “a court may

look no further than the writing itself to find the intent of

the parties.” Galatis at ¶ 11 (citation omitted). “[A] 40 PICKAWAY, 21CA7

contract is unambiguous if it can be given a definite legal

meaning.” Id. (citation omitted).

{¶72} In the case sub judice, the contract language is

unambiguous, and it does not state that appellant has the right

to continue farming the property “in the ensuing year.”

Instead, the contract outlines appellee’s liability, if any, to

appellant for any damages during the year after appellee

notifies appellant of its intent to begin using the property.

The language indicates that the parties contemplated that

appellant might plant crops before appellee notified him of its

intention to use the property and that they determined, in

advance, whether appellant would be entitled to compensation for

any loss or damage to those crops if appellee’s use of the

property during the ensuing year damaged the crops. The

language does not, however, give appellant a right to continue

planting crops or otherwise to continue engaging in farming

activities “in the ensuing year.” Rather, the language

clarifies appellee’s obligations after it notifies appellant

that it intends to begin using the property. It does not

nullify the preceding language that gives appellant the right to

continue farming the property only “until Buyer commences

construction on any such portion of the Real Estate or otherwise 41 PICKAWAY, 21CA7

must occupy said portion of the Real Estate in connection with

{¶73} Consequently, we do not agree with appellant that the

trial court incorrectly entered summary judgment in appellee’s

favor regarding its trespass claim.

D

{¶74} Appellant next argues that appellee failed to support

its summary judgment motion with proper Civ.R. 56(C) evidence.

{¶75} Appellee, however, contends that it cured any defect

when it later authenticated the documents from the previous

court proceedings in its reply memorandum. Appellee further

points out that the trial court granted appellant an opportunity

to respond to appellee’s reply memorandum.

{¶76} After our review, we agree with appellee’s assertion.

Moreover, appellee’s motion rested upon res judicata principles,

which in turn, relied upon previous court proceedings subject to

judicial notice. “Both trial courts and appellate courts can

take judicial notice of filings readily accessible from a

court’s website.” State v. Wright, 4th Dist. Scioto Nos.

15CA3705 and 15CA3706, 2016–Ohio–7795, fn. 3; citing In re

Helfrich, 5th Dist. Licking No. 13CA20, 2014–Ohio–1933, ¶ 35;

see also State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 42 PICKAWAY, 21CA7

2007–Ohio–4798, 874 N.E.2d 516, ¶ 8, 10 (court can take judicial

notice of judicial opinions and public records accessible from

the internet). Consequently, we do not agree with appellant

that the trial court improperly entered summary judgment in

appellee’s favor.

{¶77} Accordingly, based upon the foregoing reasons, we

overrule appellant’s assignment of error and affirm the trial

court’s judgment.

JUDGMENT AFFIRMED 43 PICKAWAY, 21CA7

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.