[Cite as Ross Cty. Bd. of Commrs. v. Roop, 2013-Ohio-5926.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
BOARD OF COUNTY :
COMMISSIONERS, :
:
Plaintiff-Appellant, : Case No. 13CA3369
:
vs. :
: DECISION AND JUDGMENT
LEONARD M. ROOP, et al., : ENTRY
:
Defendants-Appellees. : Released: 08/21/13
_____________________________________________________________
APPEARANCES:
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Judith Heimerl
Brown, Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellant.
Leo J. Hall, Margulis, Gussler and Hall, Ashville, Ohio, for Appellees.
_____________________________________________________________
McFarland, P.J.
{¶1} This is an appeal from a judgment by the Ross County Court of
Common Pleas granting summary judgment in favor of Appellees, Leonard
M. Roop, et al., and denying Appellant, Ross County Board of
Commissioners, an injunction requiring Appellees to remove a non-
residential structure located in the Indian Creek Floodway, the construction
of which Appellant claims violates a previously recorded deed of open
space. On appeal, Appellants contend that the trial court erred in ruling the
instant cause of action is barred by res judicata, claim preclusion. However,
Ross App. No. 13CA3369 2
we conclude that our prior decision issued in Board of Commissioners of
Ross County v. Leonard M. Roop, et al., 4th Dist. No. 10CA3161, 2011-
Ohio-1748, (hereinafter referred to as “Roop II”), constituted a valid, final
judgment rendered upon the merits that bars the present claim, which in our
view is based upon the same transaction or occurrence that was the subject
matter as the prior action. Appellant’s sole assignment of error is therefore
overruled. Accordingly, the decision of the trial court is affirmed.
FACTS
{¶2} We note the following facts from our review of this record, and
also in part from our previous decision in Roop II. In April 1991, the Ross
County Board of Commissioners enacted Resolution No. 91-114 which
provided regulations for flood hazard areas, for participation in the National
Flood Insurance Program, pursuant to R.C. 307.37 and 307.85. In October
1992, Resolution No. 91-114 was amended by Resolution No. 92-152,
which extended the identified flood hazard area to include the Indian Creek
area, where Appellees’ property is located. These resolutions essentially
imposed rules and regulations regarding construction in the flood hazard
areas, and also required that development permits be obtained prior to the
start of construction.
Ross App. No. 13CA3369 3
{¶3} Subsequently, on December 8, 1995, a deed of open space was
executed by Ross County and was recorded in Volume 7, Page 569 of the
Ross County Official Records. The deed contained development rights and
restrictions, including a provision that no new structures or improvements
shall be erected on the premises. Appellees’ property is located on the
premises covered by the deed of open space.
{¶4} On January 3, 2002, after driving by Appellees’ property and
noticing the construction of a new building, the Ross County Flood Plain
Administrator sent Appellees a letter informing them that the building being
constructed was located in the Indian Creek Floodway and that construction
in the area was prohibited under Resolution No. 91-114. The letter
instructed Appellees to stop construction immediately, and also advised of
the right to request a variance.1
{¶5} On January 30, 2002, Appellant, Ross County Board of
Commissioners filed a complaint against Appellees, which we will refer to
as case no. 02CI44. The complaint sought a preliminary and permanent
injunction for the removal of Appellees’ non-residential personal use
building, pursuant to R.C. 307.37, 307.40 and Civ.R. 65, claiming the
1
The ultimate denial of Appellees’ request for a variance was the subject of a previous appeal to this Court,
wherein we upheld the denial of Appellees’ variance request. Roop v. The Floodplain Regulations
Variance Bd. of Ross County, 4th Dist. No. 03CA2707, 2003-Ohio-5522 (“Roop I”).
Ross App. No. 13CA3369 4
construction of the building was in violation of floodplain regulations and
the public would suffer irreparable harm if the violation was not abated.
{¶6} On August 4, 2004, Appellees filed a motion for summary
judgment, which was subsequently denied. The matter finally proceeded to
a bench trial on March 25, 2009. After hearing the evidence presented at
trial, the magistrate issued a decision on May 28, 2009, indicating that the
floodplain regulations at issue were properly enacted under R.C. 307.37 and
307.85 and that Appellees’ construction of their nonresidential structure was
in violation of those regulations. The magistrate ruled that the construction
would cause irreparable harm if allowed to remain and granted Appellant a
permanent injunction ordering Appellees to remove their nonresidential
structure.
{¶7} Four months after the issuance of the magistrate’s decision, but
prior to the trial court’s issuance of a final order, Appellant filed another
complaint on September 16, 2009, seeking an injunction based upon its
claim that Appellees’ building was constructed in violation of the open space
deed recorded in 1995. We will refer to this second case, from which the
present appeal stems, as case no. 09CI631. The trial court issued a final
order in case no. 02CI44 adopting the magistrate’s decision and granting
Ross App. No. 13CA3369 5
Appellant an injunction, thereby ordering Appellees to remove their
building.
{¶8} Appellees sought review in this Court of the permanent
injunction ordered by the trial court requiring them to remove their non-
residential personal use building. As a result of that appeal, we determined
that R.C. 307.37 provided for injunctive relief only with regard to residential
structures. Because Appellees’ building was non-residential, we reversed the
trial court’s imposition of injunctive relief. This decision was released on
April 6, 2011. Roop II.
{¶9} Thereafter, Appellant filed a motion for summary judgment in
case no. 09CI631, which was still pending in the trial court. The motion was
opposed by Appellees, who filed their own motion for summary judgment
on August 15, 2011. Appellees’ motion argued that the case was barred by
the final judgment entered in case no. 02CI44 (Roop II), and that Appellant
was simply attempting to get a different result by setting forth a different
claim for recovery that it had chosen not to advance previously. A final
decision in case no. 09CI631 was issued on January 18, 2013. The decision
granted summary judgment in favor of Appellees based upon the doctrine of
res judicata, claim preclusion, and dismissed Appellant’s complaint. It is
Ross App. No. 13CA3369 6
from this decision and entry that Appellant now brings its timely appeal,
setting forth a single assignment of error for our review.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN RULING THE INSTANT
ACTION IS BARRED BY RES JUDICATA, CLAIM
PRECLUSION.”
LEGAL ANALYSIS
{¶11} In its sole assignment of error, Appellant contends that the trial
court erred in ruling the instant action is barred by res judicata, claim
preclusion. As indicated above, the trial court granted summary judgment in
favor of Appellees based upon the doctrine of res judicata. Thus, we begin
our analysis by considering our standard of review with respect to the grant
or denial of a motion for summary judgment.
{¶12} When reviewing a trial court's decision on a motion for
summary judgment, we conduct a de novo review governed by the standard
set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,
833 N.E.2d 712, ¶ 8. Summary judgment is appropriate when the movant
has established: 1.) there is no genuine issue of material fact; 2.) reasonable
minds can come to but one conclusion, and that conclusion is adverse to the
nonmoving party, with the evidence against that party being construed most
strongly in its favor; and 3.) the moving party is entitled to judgment as a
Ross App. No. 13CA3369 7
matter of law. Bostic v. Connor, 37 Ohio St.3d 144, 146, 524 N.E .2d 881
(1988), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66,
375 N.E.2d 46 (1978) (per curiam). See Civ.R. 56(C).
{¶13} The burden of showing that no genuine issue of material fact
exists falls upon the party who moves for summary judgment. Dresher v.
Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). To meet its burden,
the moving party must specifically refer to “the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action,”
that affirmatively demonstrate the non-moving party has no evidence to
support the non-moving party's claims. Civ.R. 56(C). See Hansen v. Wal-
Mart Stores, Inc., 4th Dist. No. 07CA2990, 2008-Ohio-2477, ¶ 8. Once the
movant supports the motion with appropriate evidentiary materials, the non-
moving party “may not rest upon the mere allegations or denials of the
party's pleadings, but the party's response, by affidavit or as otherwise
provided in [Civ.R. 56], must set forth specific facts showing that there is a
genuine issue for trial.” Civ.R. 56(E). “If the party does not so respond,
summary judgment, if appropriate, shall be entered against the party.” Id.
{¶14} As mentioned above, the trial court granted summary judgment
in favor of Appellees based upon the doctrine of res judicata. According to
Ross App. No. 13CA3369 8
the doctrine of res judicata, “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).
This Court recently noted in Cruse v. Finley, 4th Dist. No. 12CA2, 2012-
Ohio-5465, ¶ 12 that
“ ‘The party asserting res judicata must show the following four
elements: (1) there was a prior valid judgment on the merits; (2)
the second action involved the same parties as the first action;
(3) the present action raises claims that were or could have been
litigated in the prior action; and (4) both actions arise out of the
same transaction or occurrence. PNC Bank v. Richards, 10th
Dist. No. 11 AP-275, 2012-Ohio-1610, ¶ 10, quoting Reasoner
v. Columbus, 10th Dist. No. 04AP-800, 2005-Ohio-468, ¶ 5.”
{¶15} The doctrine of res judicata involves both claim preclusion
(also known as estoppel by judgment) and issue preclusion (traditionally
known as collateral estoppel). Grava v. Parkman Twp. at 380. Both theories
of res judicata are used to prevent relitigation of issues already decided by a
court on matters that should have been brought as part of a previous action.
Lasko v. Gen. Motors Corp., 11th Dist. No.2002-T-0143, 2003-Ohio-4103;
Ross App. No. 13CA3369 9
Dickess v. Stephens, 4th Dist. No. 12CA8, 2013-Ohio-1317, ¶ 23. The
applicability of res judicata is a question of law that is subject to de novo
review. Altof v. State, 4th Dist. No. 04CA16, 2006-Ohio-502, ¶ 13; Dickess v.
Stephens, ¶ 22.
{¶16} Here, at the summary judgment phase and currently on appeal,
Appellant essentially limits its argument to the fourth element of the res
judicata analysis, contending that the actions set forth in case nos. 02CI44
and 09CI631 did not arise out of the same transaction or occurrence. Thus,
our task is to determine if genuine issues of material fact exist about whether
Appellant Board’s complaints filed in case nos. 02CI44 (Roop II) and
09CI631 arose out of the same transaction or occurrence. The trial court
held that each complaint arose from the same transaction or occurrence, i.e.
“the construction by defendants Roop of the structure that was issue in both
cases[,]” which was a non-residential personal use building constructed in
the Indian Creek Floodway. Based upon the following, we agree with the
trial court’s determination.
{¶17} For purposes of a res judicata analysis, a “transaction” is
defined as a “common nucleus of operative facts.” Grava at 382, quoting 1
Restatement of the Law 2d, Judgments (1982) 198-199, Section 24,
Ross App. No. 13CA3369 10
Comment b. As the First District explained in Geiger v. Westfield Natl. Ins.
Co., 1st Dist. No. C-080355, 2008-Ohio-6904, ¶ 7:
Although it pre-dates Grava, the Ohio Supreme Court case of
Norwood v. McDonald [ (1943), 142 Ohio St. 299, 52 N.E.2d
67, reversed on other grounds in Grava,] is helpful in
determining what a “common nucleus of operative facts” is.
The Norwood court found that, to determine whether a second
action is barred by a first, a court should consider the facts
essential to the maintenance of each cause of action. If the same
facts or evidence would sustain both, then the second action is
barred by res judicata. If, however, the two cases rely upon
different facts, a judgment in one case is no bar to the
maintenance of the other. “Different facts” do not include
“different shadings of the facts” or an emphasis “of different
elements of the facts.” (Footnotes omitted .)
{¶18} In Grava, a property owner sought approval of an application
for a zoning certificate for construction of a building, which was denied by
the Parkman Township Zoning Inspector based upon Section 404.4 of the
zoning ordinance, which required industrially zoned property to have a
minimum of five acres. Grava at 379. Grava then appealed to the Parkman
Ross App. No. 13CA3369 11
Township Board of Zoning, seeking a variance from the zoning ordinance,
which was also denied. Id. A year later, Grava submitted another
application for a zoning certificate to the zoning inspector, claiming he was
entitled to construct the building pursuant to Section 906.0 of the zoning
ordinance. Id. This application was also denied. Id.
{¶19} Grava appealed again to the Parkman Township Board of
Zoning, which denied his appeal, reasoning that his second application was
barred by the doctrine of res judicata. Id. at 380. On appeal to the Supreme
Court, the Court affirmed the denial of the application for the zoning
certificate, holding it was barred by the doctrine of res judicata. Id. at 383.
The Court determined that Grava’s second application arose from the
nucleus of facts that was the subject matter of his first application, which
involved his attempt “to construct exactly the same building on the same
tract of land[.]” Id. The Court stated that “the only difference between the
two applications is the theory of substantive law under which Grava sought
relief.” Id.
{¶20} We believe the reasoning of Grava to be directly on point to the
facts presently before us, with the exception that here, Appellant Board is in
the position of Grava, attempting to obtain a legal remedy it was denied
based upon one legal theory, by trying to assert a new claim in a second
Ross App. No. 13CA3369 12
action, based upon a different legal theory. Though lengthy, we find it very
helpful to consider the reasoning employed by the Grava court in reaching
its holding, and thus we include it verbatim:
In recent years, this court has not limited the application
of the doctrine of res judicata to bar only those subsequent
actions involving the same legal theory of recovery as a
previous action. In Natl. Amusements, Inc. v. Springdale
(1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178, 1180, we
stated: “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’ ” (emphasis sic ) (quoting Rogers v.
Whitehall [1986], 25 Ohio St.3d 67, 69, 25 OBR 89, 90, 494
N.E.2d 1387, 1388). We also declared that “[t]he 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.
Today, we expressly adhere to the modern application of
the doctrine of res judicata, as stated in 1 Restatement of the
Law 2d, Judgments (1982), Sections 24-25, and hold that a
valid, final judgment rendered upon the merits bars all
Ross App. No. 13CA3369 13
subsequent actions based upon any claim arising out of the
transaction or occurrence that was the subject matter of the
previous action. Therefore, we overrule the second paragraph of
the syllabus in Norwood, supra, and overrule the second
paragraph of the syllabus in Whitehead, supra, to the extent it is
inconsistent with today's holding.
Section 24(1) of the Restatement of Judgments, supra, at
196, provides: “When a valid and final judgment rendered in an
action extinguishes the plaintiff's claim pursuant to the rules of
merger or bar * * *, the claim extinguished includes all rights of
the plaintiff to remedies against the defendant with respect to all
or any part of the transaction, or series of connected
transactions, out of which the action arose.” See, also, 46
American Jurisprudence 2d, supra, at Sections 516 and 533.
Comment b to Section 24 of the Restatement of Judgments,
supra, at 198-199, defines a “transaction” as a “common
nucleus of operative facts.” Comment c to Section 24, at 200,
plainly states: “That a number of different legal theories casting
liability on an actor may apply to a given episode does not
create multiple transactions and hence multiple claims. This
Ross App. No. 13CA3369 14
remains true although the several legal theories depend on
different shadings of the facts, or would emphasize different
elements of the facts, or would call for different measures of
liability or different kinds of relief.”
Section 25 of the Restatement of Judgments, supra, at
209, further explains: “The rule of § 24 applies to extinguish a
claim by the plaintiff against the defendant even though the
plaintiff 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
demanded in the first action.” (Emphasis added.) See, also, 46
American Jurisprudence 2d, supra, at Sections 535 and 537.
The rationale for such a rule is aptly stated in Comment a to
Section 24 of the Restatement of Judgments, supra, at 196-197:
“[I]n the days when civil procedure still bore the imprint of the
forms of action and the division between law and equity, the
courts were prone to associate claim with a single theory of
recovery, so that, with respect to one transaction, a plaintiff
might have as many claims as there were theories of the
substantive law upon which he could seek relief against the
Ross App. No. 13CA3369 15
defendant. Thus, defeated in an action based on one theory, the
plaintiff might be able to maintain another action based on a
different theory, even though both actions were grounded upon
the defendant's identical act or connected acts forming a single
life-situation. * * * The present trend is to see claim in factual
terms and to make it coterminous with the transaction
regardless of the number of substantive theories, or variant
forms of relief flowing from those theories, that may be
available to the plaintiff * * *; regardless of the variations in the
evidence needed to support the theories or rights.” (Emphasis
added.) Grava at 382-383.2
{¶21} Based upon the reasoning of Grava, as well as the principles set
forth in the Restatement of Judgments relied upon by the Grava court, we
conclude that the cause of action brought by Appellant in case no. 09CI631
was based upon the same transaction or occurrence as was the cause of
action brought by Appellant in case no. 02CI44, i.e. Appellees’ construction
of a non-residential personal use building in the Indian Creek Floodway. In
reaching this determination, we believe the correct application of the
2
Grava specifically overruled paragraph two of the syllabus of Norwood, which set forth a more narrow
view of res judicata that “[a] judgment or decree in a former action does not bar a subsequent action where
the causes of action are not the same, even though each action relates to the same subject matter.” Grava at
syllabus.
Ross App. No. 13CA3369 16
doctrine of res judicata, as set forth both in Grava and the Restatement
requires us to focus our attention on Appellees’ “act or connected acts
forming a single life- situation[,]” i.e. Appellees’ act of constructing a
building in a flood zone, in violation of valid and existing floodplain
regulations, and allegedly in violation of a previously recorded deed of open
space, the latter issue having not been determined on the merits by the trial
court as the action was dismissed based upon the doctrine of res judicata.
{¶22} Although a cause of action based upon the purported deed of
open space existed at the time Appellant’s first complaint was filed,
Appellant, for whatever reason, chose not to pursue that cause of action. It
is clear from the record that Appellant was aware of this potential claim at
the time the first action was litigated and thus that claim should have been
brought at that time. Because this Court rendered a valid, final judgment
upon the merits in Roop II , with respect to case no. 02CI44, the claim
brought in case no. 09CI631, which arose out of the transaction or
occurrence that was the subject matter Roop II, is barred.
{¶23} In reaching our decision, we are mindful of Appellant’s
argument that upholding the dismissal of their claim would work an
injustice. However, based upon facts very similar to the facts presently
before us, the Grava court reasoned that the refusal to allow the use of an
Ross App. No. 13CA3369 17
alternate legal theory overlooked in the previous proceedings did not work
an injustice. Grava at 383. Further, the Grava court reasoned that “[t]he
instability that would follow the establishment of a precedent for
disregarding the doctrine of res judicata for ‘equitable’ reasons would be
greater than the benefit that might result from relieving some cases of
individual hardship.” Id. at 384.
{¶24} Thus, even when construing the evidence in Appellant’s favor,
no genuine issue of fact remains. Based upon the foregoing, we agree that
Appellees are entitled to judgment as a matter of law. Therefore, we
conclude that the trial court correctly granted summary judgment in favor of
Appellees. Accordingly, the decision of the trial court is affirmed.
JUDGMENT AFFIRMED.
Ross App. No. 13CA3369 18
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellees recover of Appellant costs herein.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Concurs in Judgment Only.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding 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.
Ross Cty. Bd. of Commrs. v. Roop
Combined Opinion