Ullom v. Agoston ( 2022 )

[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