Lakemore v. Schell , 2020 Ohio 4453 ( 2020 )

[Cite as Lakemore v. Schell, 2020-Ohio-4453.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
VILLAGE OF LAKEMORE C.A. No. 29387
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ERIC SCHELL COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CV-2018-04-1515
DECISION AND JOURNAL ENTRY
Dated: September 16, 2020
CARR, Presiding Judge.
{¶1} Appellant, Eric Schell, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} Mr. Schell and the Village of Lakemore have been engaged in a long-standing
dispute of over seven years regarding the construction of a garage on Mr. Schell’s property. This
Court briefly addressed the litigation history between the parties in a previous appeal from Case.
No. CV-2012-05-2561 in the Summit County Court of Common Pleas. Lakemore v. Schell, 9th
Dist. Summit No. 29075, 2019-Ohio-5097, ¶ 2-5.
{¶3} On April 3, 2018, Lakemore filed a separate complaint against Mr. Schell asking
for a declaration that Mr. Schell was in violation of the Lakemore zoning code and that he was
engaging in actions on his property that constituted a public nuisance. Lakemore sought an
injunction enjoining Mr. Schell from continuing to use his property in a manner that violated the
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zoning code. Mr. Schell moved to dismiss the complaint pursuant to Civ.R. 12(B)(6), arguing that
Lakemore did not allege sufficient facts related to violations of the zoning code.
{¶4} Lakemore filed an amended complaint seeking declaratory judgment, injunctive
relief, and nuisance abatement. Therein, Lakemore alleged that Mr. Schell was using his property
to operate a vehicle repair and restoration business despite the fact that his property was situated
in a residentially zoned district. Lakemore alleged numerous additional violations of the zoning
code, including the storage of recreation vehicles on the property, the storage of junk and debris
on the property, and the erection and maintenance of fencing and special event signage on the
property without first obtaining the required permits. Lakemore alleged that Mr. Schell had
refused to comply with notices from the zoning inspector to cease these practices. On the same
day that Lakemore filed its amended complaint, Lakemore filed a separate memorandum arguing
that the motion to dismiss was rendered moot by the amended complaint. The trial court ultimately
denied the motion to dismiss.
{¶5} Mr. Schell filed an answer generally denying the claims in the amended complaint
and setting forth several counterclaims. In addition to setting forth a counterclaim for abuse of
process against Lakemore, Mr. Schell asked the trial court to issue a writ of mandamus ordering
Lakemore to issue a building permit that would allow him to construct the garage on his property.
Lakemore filed an answer denying the allegations raised in the counterclaims and further
contending that Mr. Schell was precluded from raising the issues set forth in his counterclaims.
{¶6} On December 4, 2018, Lakemore filed a motion for judgment on the pleadings with
respect to Mr. Schell’s counterclaims. Lakemore argued that Mr. Schell could not satisfy the
requirements for a writ of mandamus as a matter of law. With respect to the counterclaim alleging
abuse of process, Lakemore argued that it was immune from liability as a political subdivision
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and, further, that Mr. Schell’s claim was barred by the statute of limitations. The trial court issued
a journal entry requiring Mr. Schell to file a responsive brief by January 28, 2019. Mr. Schell did
not file a responsive brief by that date. On February 28, 2019, the lawyers representing Mr. Schell
filed a motion to withdraw on the basis that Mr. Schell had not complied with the terms of their
written representation agreement. The trial court granted the motion.
{¶7} On March 28, 2019, the trial court issued a journal entry granting Lakemore’s
motion for judgment on the pleadings with respect to Mr. Schell’s counterclaims. The journal
entry included language indicating that there was no just cause for delay.
{¶8} Mr. Schell filed a timely notice of appeal and raises one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING LAKEMORE’S MOTION FOR
JUDGMENT ON THE PLEADINGS[.]
{¶9} In his sole assignment of error, Mr. Schell contends that the trial court erred when
it granted Lakemore’s motion for judgment on the pleadings. This Court disagrees.
{¶10} A trial court’s order granting a motion to dismiss filed under Civ.R. 12(C) is
reviewed under a de novo standard. Hall v. Crystal Clinic, Inc., 9th Dist. Summit No. 28524,
2017-Ohio-8471, ¶ 5. “When reviewing a matter de novo, this [C]ourt does not give deference to
the trial court’s decision.” Blue Heron Nurseries, L.L.C. v. Funk, 186 Ohio App.3d 769, 2010-
Ohio-876, ¶ 5 (9th Dist.).
{¶11} Civ.R. 12(C) provides that “[a]fter the pleadings are closed but within such time as
not to delay the trial, any party may move for judgment on the pleadings.” “Under Civ.R. 12(C),
dismissal is appropriate where a court (1) construes the material allegations in the complaint, with
all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2)
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finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would
entitle him to relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570
(1996), citing Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99 (8th Dist.1992).
{¶12} “Civ.R. 12(C) clearly confines the trial court’s analysis to the material allegations
set forth in the pleadings and any [written instrument] attach[ed] thereto, which the trial court must
accept as true.” Business Data Sys., Inc. v. Figetakis, 9th Dist. Summit No. 22783, 2006-Ohio-
1036, ¶ 10. This Court has held that while a written instrument attached to a complaint or answer
qualifies as part of the pleadings, not every document attached to the pleadings qualifies as a
written instrument under Civ.R. 10(C). Evanston Ins. Co. v. Procentury Ins. Co., 9th Dist. Lorain
No. 18CA011438, 2019-Ohio-4214, ¶ 15. The term written instrument, as stated in Civ.R. 10(C),
is limited to documents that evidence the parties’ rights and obligations, such as a contract. Id.;
see also Green Tree Servicing, L.L.C. v. Olds, 9th Dist. Summit No. 27297, 2015-Ohio-3214, ¶ 22
(holding that a trial court may not consider evidence that goes beyond the scope of the pleadings
in ruling on a motion filed pursuant to Civ.R. 12(C)).
{¶13} At the outset of our discussion, we note that Mr. Schell has conceded on appeal that
the trial court properly granted the motion for judgment on the pleadings as to his counterclaim for
abuse of process because Lakemore is immune from liability due to its status as a political
subdivision. Mr. Schell stresses that the scope of his concession does not extend to the issue of
whether any of Lakemore’s individual employees are immune from liability, as it is his position
that a third-party complaint against individual employees would not be barred on remand. This
Court takes no position on the merits of any future filings in this matter.
{¶14} With respect to his counterclaim for a writ of mandamus, Mr. Schell contends that
he alleged facts sufficient to survive Lakemore’s motion for judgment on the pleadings. Mr. Schell
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argues that Lakemore has repeatedly denied him the building permit to construct the garage on his
property even though he has satisfied all the legal requirements for obtaining such a permit. Mr.
Schell asserts that Lakemore’s refusal to issue the permit has been an ongoing source of conflict
between the parties and that there is no other adequate remedy at law.
{¶15} In setting forth his counterclaim below, Mr. Schell alleged that he and the Mayor
of Lakemore had a falling out over a professional disagreement years ago. Mr. Schell further
alleged that, in light of his personal dispute with the Mayor, Lakemore has consistently denied his
applications for a building permit to construct a garage on his property. Based on his central
allegation that the denials of his applications were “politically motivated and serve[d] no useful
purpose[,]” Mr. Schell asked the trial court to issue writ of mandamus ordering Lakemore to issue
the building permit.
{¶16} In answering the counterclaim, Lakemore generally denied Mr. Schell’s allegations
and raised several affirmative defenses. Lakemore maintained that Mr. Schell was barred from
raising the issue under a number of legal doctrines, including the doctrine of res judicata.
Lakemore alleged that the parties had reached a settlement agreement during their prior litigation
where it was agreed that Mr. Schell had one year from August 4, 2017 to construct a garage of no
more than 500 square feet on his property. Lakemore further alleged that it had no legal duty to
issue a permit given that Mr. Schell had already secured a right to construct the garage pursuant to
the settlement agreement. Lakemore attached multiple journal entries from the prior litigation to
its answer, including the trial court’s order adopting the settlement agreement. Lakemore also
attached the transcript from the settlement conference where the terms of the settlement were stated
on the record.
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{¶17} Under these circumstances, we cannot say that the trial court erred in granting
Lakemore’s motion for judgment on the pleadings. In answering Mr. Schell’s counterclaim for a
writ of mandamus, Lakemore attached and incorporated a settlement agreement from Case. No.
CV-2012-05-2561 that governed the construction of the garage on Mr. Schell’s property. The
parties’ settlement agreement addressed the process for obtaining the permits required to complete
that project. The trial court’s order adopting and incorporating the settlement agreement provided
that the trial court would retain continuing jurisdiction solely for the purpose of enforcing the terms
of the settlement agreement. Accordingly, as any issues relating to securing permits to construct
the garage were settled in the parties’ prior litigation and fall outside the scope of the instant matter,
the trial court properly granted Lakemore’s motion for judgment on the pleadings.
{¶18} Mr. Schell’s assignment of error is overruled
III.
{¶19} Mr. Schell’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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
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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.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
SCHAFER, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
ALAN M. MEDVICK, Attorney at Law, for Appellant.
JOHN D. LATCHNEY, Attorney at Law, for Appellee.