In re Estate of Demsey

[Cite as In re Estate of Demsey, 2018-Ohio-5177.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106678
IN RE: ESTATE OF LOUISE J. DEMSEY
[Appeal by Kenneth Demsey]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Probate Division
Case No. 2010 EST 0160457
BEFORE: Stewart, J., E.A. Gallagher, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: December 20, 2018
ATTORNEY FOR APPELLANTS
Robert Troll Lynch
35253 Maplegrove, Suite 102
Willoughby Hills, OH 44094
ATTORNEY FOR APPELLEE
S. Robert E. Lazzaro
Costanzo & Lazzaro
13317 Madison Avenue
Lakewood, OH 44107
Also Listed:
Kevin Demsey
21440 East 104th Street
Broken Arrow, OK 74014
Nancy Demsey Daniels
4847 Dameuly Drive
Hilliard, OH 43026
Sharlene Haberek
155 Cobblestone Lane
Springboro, OH 45066
Jean McLeod
306 Mariana Avenue
Midland, TX 79701
MELODY J. STEWART, J.:
{¶1} The sole issue in this appeal is whether the probate division of the court of common
pleas (probate court) erred by finding that appellant Kenneth Demsey’s claim against appellee
estate of Louise Demsey, for healthcare and personal services rendered, was res judicata because
the same claim had been previously dismissed with prejudice in an action brought in the general
division of the court of common pleas. Demsey argues that the prior dismissal was a procedural
ruling and thus not on the merits, precluding application of the principles of res judicata.
{¶2} In 2012, Demsey filed an action in the general division, Cuyahoga C.P. No.
CV-12-782829, seeking payment of $280,000 for personal services provided to his mother,
Louise Demsey. The estate counterclaimed alleging that Demsey misappropriated his mother’s
money and that he owed the estate rent from his time living with her. In response to the estate’s
motion to compel discovery, the general division court ordered Demsey to respond under penalty
of dismissal and attorney fees. When Demsey did not respond, the court dismissed the case with
prejudice. Demsey appealed, but we dismissed the appeal for want of a final order because the
court had yet to dispose of the estate’s counterclaims, nor had the court certified no just reason
for delay under Civ.R. 54(B). See Demsey v. Sheehe, 8th Dist. Cuyahoga No. 100693,
2014-Ohio-2409, ¶ 11-12. The estate later dismissed its counterclaims without prejudice, but
Demsey did not again appeal from the involuntary dismissal with prejudice.
{¶3} In 2017, during probate court proceedings involving the administration of his
mother’s estate, Demsey sought to recover his monies allegedly expended as caregiver to his
mother. The probate court denied the motion, finding that “the claim for caregiver fees was
denied by the Executor and disposed of in Case Number CV-12-782829.”
{¶4} Demsey appeals, arguing that the court erred by giving preclusive effect to the
general division dismissal because the dismissal “was on procedural grounds only and not on the
merits[.]”
{¶5} As between the same parties, a final judgment in a first lawsuit is conclusive as to all
claims that were or might have been litigated. Natl. Amusements v. Springdale, 53 Ohio St.3d
60, 62, 558 N.E.2d 1178 (1990). The rule barring relitigation of claims or issues — known as
“res judicata” — applies even if the same claim had been litigated in a different court. Rogers v.
Whitehall, 25 Ohio St.3d 67, 67, 494 N.E.2d 1387 (1986), syllabus.
{¶6} There is no merit to Demsey’s argument that the dismissal with prejudice in the
general division action was not final because it was “procedural” and therefore not on the merits.
A dismissal with prejudice “operates as an adjudication on the merits unless the court, in its
order for dismissal, otherwise specifies.” Civ.R. 41(B)(3). As an adjudication on the merits, a
dismissal with prejudice is a final judgment on the merits. Tower City Properties v. Cuyahoga
Cty. Bd. of Revision, 49 Ohio St.3d 67, 69, 551 N.E.2d 122 (1990); Persaud v. St. John Med.
Ctr., 8th Dist. Cuyahoga No. 105402, 2017-Ohio-7178, ¶ 22; Briggs v. Cincinnati Recreation
Comm. Office, 132 Ohio App.3d 610, 611, 725 N.E.2d 1161 (1st Dist.1998); Lakhi v. Healthcare
Choices & Consultants, L.L.C., 10th Dist. Franklin No. 06AP-806, 2007-Ohio-4127, ¶ 26.
{¶7} It follows that “under the doctrine of res judicata, a voluntary dismissal with
prejudice bars future litigation on the rights asserted, or those that could have been asserted in the
prior action.” Persaud at ¶ 22, citing Dreger v. Dundas, 8th Dist. Cuyahoga No. 57389, 1990
Ohio App. LEXIS 4985 (Nov. 15, 1990). See also Dehlendorf v. Ritchey, 10th Dist. Franklin
No. 12AP-87, 2012-Ohio-5193, ¶ 16 (“[a] dismissal entered with prejudice will, by application
of the doctrine of res judicata, bar a subsequent attempt to refile the same action.”).
{¶8} Demsey’s entire argument is wrongly premised on the assertion that an involuntary
dismissal with prejudice makes no judgment on the substance or the merits of a claim. This is
true only if a dismissal is without prejudice — “[a] dismissal without prejudice constitutes an
adjudication other than on the merits and prevents the dismissal from having res judicata effect.”
Goudlock v. Voorhies, 119 Ohio St.3d 398, 2008-Ohio-4787, 894 N.E.2d 692, ¶ 10. But with
the general division dismissal being with prejudice, it operated as an adjudication on the merits
and was final. The probate court did not err by finding that Demsey’s claim was res judicata.
{¶9} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were no reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court, probate division, 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.
______________________________________________
MELODY J. STEWART, JUDGE
EILEEN A. GALLAGHER, A.J., and
MARY J. BOYLE, J., CONCUR