Ullom v. Agoston

2022 Ohio 696

• Court: Ohio Court of Appeals
• Decided: March 10, 2022
• Docket: 110715
• Status: Published

Opinion

[Cite as Ullom v Agoston, 2022-Ohio-696.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

DEENA ULLOM, ET AL., :

Plaintiffs-Appellants, : No. 110715 v. :

EDWARD AGOSTON, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 10, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-940267

Appearances:

Lipson O’Shea Legal Group, and Michael J. O’Shea, for appellants.

The Carr Law Office, L.L.C., Adam E. Carr, and Eric K. Grinnell, for appellees.

CORNELIUS J. O’SULLIVAN, JR., J.:

Plaintiffs-appellants, Deena Ullom and Thomas Ullom (collectively

“appellants”), appeal from the trial court’s July 15, 2021 judgment that granted the

motion for judgment on the pleadings of defendants-appellees, Edward Agoston and Sharon Agoston (collectively “appellees”). After review of the facts and law, we

affirm.

Procedural and Factual History

This case arises out of appellees’ 2017 sale of a Brecksville, Ohio home

to appellants. A residential property disclosure form was incorporated into the

parties’ purchase agreement. Pursuant to the disclosure form, appellees were

required to disclose to appellants certain categories of defects on the premises.

Original Case

In January 2019, appellants initiated an action against appellees,

alleging breach of contract and negligent misrepresentation. Specifically, appellants

alleged that the foundation and support systems of the home were faulty and that

such condition and the failure of appellees to disclose this condition to appellants

breached the parties’ purchase agreement. See Ullom v. Agoston, Cuyahoga C.P.

No. CV-19-909957.

Prior to appellees filing an answer, appellants filed a first amended

complaint, adding Erie Insurance Company (“Erie”), which was appellants’

homeowner insurer. Appellants asserted a bad-faith claim against the insurance

company.

Erie answered appellants’ first amended complaint denying liability,

counterclaimed against appellants and cross-claimed against appellees. Appellees

answered both appellants’ first amended complaint and Erie’s cross-claim. In May 2019, Allstate Insurance Company (“Allstate”), appellees’

homeowners insurer, intervened in the action, seeking a judicial declaration that it

did not owe a duty to provide liability coverage to appellees or to pay for their

defense.

In July 2019, appellees filed a motion for judgment on the pleadings,

both as to appellants’ first amended complaint and as to Erie’s cross-claim. Further,

Allstate filed a motion for judgment on the pleadings on its request for declaratory

relief.

On September 11, 2019, the trial court granted both appellees and

Allstate’s motions for judgment on the pleadings. Pursuant to the court’s judgment,

Allstate was dismissed from the action and Erie’s cross-claim against appellees was

dismissed. The judgment specifically noted that appellants’ claims against Erie, and

Erie’s counterclaim against appellants, remained pending. Appellants appealed to

this court; the appeal was dismissed for lack of a final appealable order. See Ullom

v. Agoston, 8th Dist. Cuyahoga No. 109102, Motion No. 532759 (Oct. 16, 2019).

In November 2019, appellants filed a motion for leave to file a second

amended complaint, seeking to bring appellees back into the case. The trial court

denied the motion.

The record demonstrates that appellants and Erie settled their

dispute, and on August 7, 2020, appellants filed a notice of voluntary dismissal,

dismissing the action without prejudice. On August 27, 2020, the trial court entered a final judgment

dismissing the case without prejudice. No appeal was taken by appellants from that

final judgment.

Refiled Case: Case Before this Court on Appeal

In November 2020, appellants filed this action against appellees,

alleging breach of contract, fraudulent misrepresentation, and fraudulent

concealment; all claims arose from the 2017 sale of the same home that was the

subject of the first lawsuit.

In February 2021, appellants filed a first amended complaint. The

amended complaint provided additional information about appellees’ alleged fraud.

Appellees answered the first amended complaint and asserted affirmative defenses

including res judicata, collateral estoppel, and law of the case.

In March 2021, appellees filed a motion for judgment on the

pleadings. On July 15, 2021, in an 11-page entry, the trial court granted the motion

for judgment on the pleadings on the ground of res judicata. Appellants now appeal

and raise a sole assignment of error for our review:

Once the entirety of the First Case was dismissed without prejudice pursuant to Ohio Civ.R. 41(A), all prior interlocutory orders and rulings of the trial court were nullified and of no further force and effect, and thus res judicata does not apply to any re-filed complaint. Law and Analysis

We review a trial court’s determination regarding a motion for

judgment on the pleadings de novo. Schmitt v. Edn. Serv. Ctr., 8th Dist. Cuyahoga

No. 97623, 2012-Ohio-2210, ¶ 8, citing State ex rel. Midwest Pride IV, Inc. v.

Pontious, 75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996).

A Civ.R. 12(C) motion for judgment on the pleadings presents only

questions of law. Shingler v. Provider Servs. Holdings, L.L.C., 8th Dist. Cuyahoga

No. 106683, 2018-Ohio-2740, ¶ 17, citing Whaley v. Franklin Cty. Bd. of Commrs.,

92 Ohio St.3d 574, 581-582, 752 N.E.2d 267 (2001). Dismissal of a complaint is

appropriate under Civ.R. 12(C) when, after construing all material allegations in the

pleadings, along with all reasonable inferences drawn therefrom in favor of the

plaintiff, the court finds that the plaintiff can prove no set of facts in support of his

or her claim that would entitle the plaintiff to relief. Pontious at 570; Socha v. Weiss,

2017-Ohio-7610, 97 N.E.3d 818, ¶ 9 (8th Dist.).

Appellees’ motion for judgment on the pleadings asserted: (1)

appellants failed to plead a factual basis for survival of their claims; (2) Ohio does

not permit claims for negligent failure to disclose defects in real estate; (3)

appellants failed to allege fraud with particularity; and (4) the doctrine of res

judicata barred the action. The trial court granted the motion pursuant to the

doctrine of res judicata. That doctrine is dispositive of this appeal.

In this case, both the original and the refiled action were assigned to

the same judge. Thus, in considering the issue of res judicata, the trial court took judicial notice of its own docket. In Indus. Risk Insurers v. Lorenz Equip. Co., 69

Ohio St.3d 576, 635 N.E.2d 14 (1994), the Ohio Supreme Court considered

whether a trial court, when ruling on a Civ.R. 41(B)(1) motion to dismiss for want of prosecution in an action that has been refiled after a voluntary dismissal per Civ.R. 41(A)(1)(a), may consider the dilatory conduct of the nonmoving party in the previously filed action.

Id. at 579.

The court answered “in the affirmative.” Id. The court reasoned that

“a trial court is not required to suffer from institutional amnesia. It is axiomatic that

a trial court may take judicial notice of its own docket.” Id. at 580. On the authority

of Indus. Risk Insurers, we find that the trial court was permitted to take judicial

notice of its own docket. Therefore, we now consider the trial court’s judgment

granting the appellees’ motion for judgment on the pleadings on the basis of res

judicata.

The doctrine of res judicata provides that “a valid, final judgment

rendered upon the merits bars all subsequent actions based upon any claim arising

out of the transaction or occurrence that was the subject matter of the previous

action.” Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995).

“[T]he doctrine of res judicata requires a final order of the court to preclude

relitigation of issues that have or could have been raised in a prior proceeding.”

Deutsche Bank Natl. Co. v. Caldwell, 8th Dist. Cuyahoga No. 100594, 2014-Ohio-

2982, ¶ 19. In considering a claim under the doctrine of res judicata, we ask

whether:

(1) there is a final, valid decision on the merits by a court of competent jurisdiction; (2) the second action involves the same parties or their privies as the first; (3) the second action raises claims that were or could have been litigated in the first action; and (4) the second action arises out of the transaction or occurrence that was the subject matter of the previous action.

(Citation omitted.) Lenard v. Miller, 8th Dist. Cuyahoga No. 99460, 2013-Ohio-

4703, ¶ 27.

In the original case, the trial court reached a final decision on the

merits relative to appellees on September 11, 2019. That September 2019 judgment

also disposed of the claims relative to Allstate. Appellants appealed, but the appeal

was dismissed for lack of a final, appealable order because Erie still remained as a

defendant. An appellate court, in furtherance of Civ.R. 54(B), will not allow for a

matter to be brought before it in a piecemeal fashion. See Rae-Ann Suburban, Inc.

v. Wolfe, 8th Dist. Cuyahoga No. 107536, 2019-Ohio-1451, ¶ 15.

On August 7, 2020, appellants filed a notice of voluntary dismissal,

and on August 27, 2020, the trial court dismissed the action, thereby creating a final

judgment as to the entire case.

In State ex rel. Davie v. Calabrese, 8th Dist. Cuyahoga No. 104205,

2016-Ohio-5420, this court properly applied Civ.R. 54(B) when it determined the

correct time for filing an appeal when part of the case had been resolved, but part

remained pending. In Davie, the plaintiff sued numerous defendants and one group of defendants filed a counterclaim against the plaintiff. The defendants filed

motions for summary, which included a motion for summary judgment on the

counterclaim. The trial court granted the defendants’ motions for summary

judgment, except for the motion relative to the counterclaim. The plaintiff appealed.

After the plaintiff appealed, the defendants dismissed their counterclaim and the

trial court issued a final order stating that no claims remained. This court dismissed

the plaintiff’s appeal, and stated that “when the appeal was filed, there was still a

counterclaim pending before the trial court, which had not certified ‘no reason for

delay.’ Thus, there was no final, appealable order.” Id. at ¶ 7.

This court stated in Davie that the defendants’ “Civ.R. 41(A) dismissal

of the counterclaim * * * was self-executing, resolved the remaining claims, and

made the orders previously appealed from final, appealable orders[.] * * * At that

point in time, the case was completely resolved.” (Citations omitted.) Id. at ¶ 15.

“The proper remedy was to file a timely notice of appeal from the [trial court’s final

order.]” Id. at ¶ 16.

In the case sub judice, the trial court reached a final decision on the

merits relative to appellees on September 11, 2019. The court’s entry did not indicate

“that there is no just reason for delay,” demonstrating that the trial court did not

intend the decision to be immediately appealable. See Rae-Ann, 8th Dist. Cuyahoga

No. 2019-Ohio-1451, at ¶ 13, quoting Noble v. Colwell, 44 Ohio St.3d 92, 97, 540

N.E.2d 1381 (1989), “A trial court’s use of Civ.R. 54(B) certification is ‘within its sound discretion.’” The trial court in this case entered its final order on August 27,

2020.

At that point there was a final, valid decision on the merits by a court

of competent jurisdiction fulfilling the first requirement of Lenard.

The record before us reflects that the second action involved the same

parties, that is, appellants and appellees. The claims in the second action arose out

of the very same 2017 sale of the Brecksville home. The claims in the second action

either were or could have been raised in the original action. The second, third, and

fourth elements of Lenard are also met. Appellants’ claims in the refiled action

clearly meet the Lenard elements and are barred by the doctrine of res judicata.

Appellants contend that the doctrine of res judicata should not apply

in this case. Specifically, they maintain that their August 7, 2020 voluntary

dismissal of the original action nullified the trial court’s judgment on the pleadings

in favor of appellees and against them in that first action. This argument has been

rejected by the Supreme Court of Ohio.

In Denham v. New Carlisle, 86 Ohio St.3d 594, 716 N.E.2d 184

(1999), a widow filed suit against the city of New Carlisle and other defendants

relative to the death of her husband. The city filed a motion for summary judgment

on the ground of immunity and the trial court granted the motion. The trial court’s

judgment entry stated that its decision was not a final appealable order.1 Thereafter,

1 At the time of the trial court’s decision in Denham, a judgment granting summary judgment on the basis of immunity was not a final, appealable order. It currently is, however. See R.C. 2744.02(C). the plaintiff voluntarily dismissed her claims against the remaining defendants

under Civ.R. 41(A)(1). The plaintiff then appealed. The Second Appellate District

dismissed the appeal on the ground that the summary judgment was “an

interlocutory non-final order[.]” Id. at 594.

The Supreme Court of Ohio disagreed with the Second District and

reversed the judgment, holding that “[a] trial court’s decision granting summary

judgment based on immunity for one of several defendants in a civil action becomes

a final appealable order when the plaintiff voluntarily dismisses the remaining

parties to the suit pursuant to Civ.R. 41(A)(1).” Id. at syllabus. The court clarified

“that a Civ.R. 41(A) dismissal should be construed to render the parties as if no suit

had ever been brought, but only with respect to the dismissed parties.” (Emphasis

added.) Id. at 597.

Although Denham referred to a plaintiff dismissing “parties,” at the

time Denham was decided, Civ.R. 41(A)(1) permitted a plaintiff to dismiss an

“action,” not a party or parties. Two years after Denham was decided, Civ.R. 41 was

amended to incorporate the holding of Denham. See Staff Note to July 1, 2001

Amendment to Civ.R. 41.

As it is now written, Civ.R. 41 provides that

[s]ubject to the provisions of Civ.R. 23(E), Civ.R. 23.1, and Civ.R. 66, a plaintiff, without order of court, may dismiss all claims asserted by that plaintiff against a defendant by doing either of the following:

(a) filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by that defendant;

(b) filing a stipulation of dismissal signed by all parties who have appeared in the action.

Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits of any claim that the plaintiff has once dismissed in any court.

Civ.R. 41(A)(1).

Civ.R. 41(A) differs from Civ.R. 41(B), the difference being that Civ.R.

41(B) allows a trial court to involuntarily “dismiss an action or claim.” Civ.R.

41(B)(1); Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, 897

N.E.2d 126, ¶ 16, quoting pre- and post-Denham Civ.R. 41(A). (“The key difference

between the pre-Denham rule and the current rule is that the pre-Denham rule

stated that “‘an action may be dismissed by the plaintiff,’” whereas the current rule

reads that a plaintiff “‘may dismiss all claims asserted by that plaintiff against a

defendant.’”)

Thus, although appellants’ dismissal of the original action purported

to dismiss “the action,” appellants could only dismiss their remaining claim against

Erie, subject to Erie’s counterclaim. They did not dismiss their claims against

appellees because, following the trial court’s September 11, 2019 ruling on appellees’

motion for judgment on the pleadings, no such claims remained for appellants to

dismiss.

Appellants draw our attention to Hutchinson v. Beazer E., Inc., 8th

Dist. Cuyahoga Nos. 86635 and 87897, 2006-Ohio-6761, in support of their contention that the trial court’s September 11, 2019 ruling on appellees’ motion for

judgment on the pleadings was nullified. In Hutchinson, this court held that “when

without prejudice pursuant to Civ.R. 41(A), interlocutory orders which do not

contain Civ.R. 54(B) language that there is no just reason for delay are dissolved and

are not appealable.” Id. at ¶ 23.

Since Hutchinson, this court has held that dismissal of a pending

counterclaim after other claims were resolved through summary judgment “was

self-executing, resolved the remaining claims, and made the orders previously

appealed from final, appealable orders * * *. At that point in time, the case was

completely resolved.” (Citations omitted.) Davie, 8th Dist. Cuyahoga No. 104205,

2016-Ohio-5420, at ¶ 15. “The proper remedy was to file a timely notice of appeal

from the [trial court’s final order.]” Id. at ¶ 16.

When appellants filed their initial appeal after the trial court’s ruling

on appellees’ motion for judgment on the pleadings, this court properly dismissed

the case because appellants’ other claims remained pending at that time. Following

the dismissal of the remaining claims, the trial court’s judgment in favor of the

appellees then became a final appealable order pursuant to the Ohio Supreme

Court’s Denham decision. See also Davie at ¶ 15-16. The time to appeal arose at

that moment but appellants failed to file an appeal. The issues raised in appellants’

refiled suit against the same defendants as in the original action, arising out of the

same real estate transaction, were determined with finality by the trial court in its September 11, 2019 judgment entry granting the appellees’ motion for judgment on

the pleadings.

In view of the above, the doctrine of res judicata barred appellants’

refiled case and the trial court properly granted appellees’ second motion for

judgment on the pleadings on that basis. Appellants’ sole assignment of error is

without merit and hereby overruled.

Judgment affirmed.

It is ordered that appellees recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the common pleas court to carry

this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

CORNELIUS J. O’SULLIVAN, JR., JUDGE

FRANK D. CELEBREZZE, JR., P.J., and MARY EILEEN KILBANE, J., CONCUR