[Cite as Slodov v. Mentor, 2019-Ohio-1052.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
LEONARD H. SLODOV, et al., : OPINION
Plaintiff-Appellant, :
CASE NO. 2018-L-080
- vs - :
CITY OF MENTOR, et al., :
Defendants-Appellees. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 2018 CV
000422.
Judgment: Affirmed.
Michael D. Slodov, Javitch Block LLC, 1100 Superior Avenue, 19th Floor, Cleveland,
OH 44114 (For Plaintiff-Appellant).
John T. Pion and Andrew D. Webster, Pion Nerone Girman Winslow & Smith, PC,
1500 One Gateway Center, 420 Fort Duquesre Boulevard, Pittsburgh, PA 15222 (For
Defendants-Appellees, Boldt Capital, LLC; Lake County Port and E.D. Authority; and
Lake Mentor Properties, LLC).
Carl E. Cormany and Frank H. Scialdone, Mazanec, Raskin & Ryder Co., L.P.A., 100
Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For Defendant-Appellee,
City of Mentor).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Leonard H. Slodov, appeals from the judgment of the Lake
County Court of Common Pleas, dismissing his complaint for declaratory judgment with
prejudice for lack of standing. Appellant does not dispute the trial court’s judgment that
he lacked standing to maintain the underlying action; rather, he maintains the trial court
erred in dismissing the same with prejudice. We affirm.
{¶2} Appellant originally filed his complaint pro se on behalf of himself and KDL
Real Estate, LLC, a company of which he is the owner and sole member, naming the
city of Mentor, Lake Mentor Properties, LLC, and Lake County Port and Economic
Authority as defendants. After realizing he could not maintain the action on behalf of
KDL without hiring counsel, he dismissed the company and filed an amended complaint.
The amended complaint dismissed KDL and added Lake Hospital Systems, Inc. and
Boldt Capital as defendants. As a matter of background, KDL owned property on Tyler
Blvd. in Mentor that it had leased to Lake Hospital, and in January 2017, Lake Hospital
did not renew its lease.
{¶3} The amended complaint alleged appellant was a concerned citizen,
Mentor taxpayer, and, as the owner of a KDL, a commercial lessor with Lake Hospital,
and, as such, he had a personal interest in the issues raised in the complaint. Appellant
asserted the real property on Tyler Blvd. was adversely affected by a municipal
ordinance which re-zoned property on Market Street in Mentor; he claimed that even
though the Tyler property was owned by KDL, he was the sole member of the company
and his income was diminished when Lake Health relocated to property on Market
Street after it was re-zoned.
{¶4} The ordinance described the property to be re-zoned then provided the
Market Street property be re-zoned to general business as approved by the Municipal
Planning Commission. And, according to appellant, the ordinance was subject to
certain conditions; one of which is that it could be modified or supplemented by a
2
Development Agreement (“DA”), entered into between the city of Mentor and various
other named defendants. The DA described the ultimate development of the Market
Street property and set forth various prohibited uses, one of which was a hospital.
{¶5} As a result of the foregoing, appellant sought a declaration that, inter alia,
(1) the Market Street property could not be used as a hospital open to the general
public, as this use violated the ordinance and the DA; (2) the Market Street property
was in fact being used as a hospital/urgent care business; (3) the current use of the
Market Street property was a prohibited use; (4) the lease for the Market Street property
was invalid and unlawful; (4) the ballot language for the re-zoning measure was
deceptive and failed to inform the public that it created a conflict of interest and allowed
for unfair economic advantage sanctioning the relocation of Lake Health to residential
land; (5) the defendants engaged in official misconduct amounting to a felony in
violation of R.C. 2901.13; and (6) the court refer the issues raised to the Lake County
prosecutor for investigation.
{¶6} Appellees filed motions to dismiss alleging, inter alia, appellant lacked
standing. The trial court agreed and dismissed the complaint. In its judgment entry, the
trial court determined that, to the extent appellant’s claims of damage were based upon
KDL’s diminished income, he failed to establish direct injury. The trial court further
determined that, to the extent appellant’s claims were brought as a taxpayer or a
concerned citizen for a violation of the DA, he lacked standing because he was not a
party to the agreement. The court additionally determined appellant’s claims for official
misconduct failed because R.C. 2901.13, a statutory section creating a tolling period for
the prosecution of an offense involving misconduct in office, does not define a criminal
3
offense. Moreover, the court concluded the statute does not create a private right of
action. As such, the court concluded appellant failed to state a claim upon which relief
could be granted. Appellant now appeals and assigns the following as error:
{¶7} “The trial court committed prejudicial error in reaching the merits and
dismissing the complaint with prejudice after finding that appellant lacked standing to
maintain the action.”
{¶8} Appellant does not contest he lacked standing; instead, he claims the trial
court erred when it analyzed the merits of his misconduct claims in light of its standing
determination. He further maintains the trial court erred in dismissing the complaint with
prejudice because the conclusion that a party lacks standing is not a decision on the
merits.
{¶9} With respect to appellant’s first contention, the trial court did not find
appellant lacked standing to bring the official misconduct claim. Rather, the judgment
entry simply indicates that the statute upon which appellant relied to assert his official
misconduct claim does not create a private civil cause of action. A review of the statute,
which defines limitations on criminal prosecutions, supports the trial court’s judgment. A
statute of limitation setting forth a period for which a prosecution for “an offense
involving misconduct in office by a public servant,” see R.C. 2901.13(C), is not a vehicle
for a civil suit which generally alleges official misconduct. Appellant therefore failed to
state a claim upon which relief could be granted on this issue.
{¶10} Next, we recognize that, in general, the dismissal of an action because a
party lacks standing is not a dismissal on the merits. State ex rel. Coles v. Granville,
116 Ohio St.3d 231, 2007-Ohio-6057, ¶51. This general rule is to avoid the application
4
of the doctrine of res judicata in a subsequent suit where a standing defect is cured. Id.
citing A–1 Nursing Care of Cleveland, Inc. v. Florence Nightingale Nursing, Inc., 97
Ohio App.3d 623, 627 (8th Dist.1994) (dismissal for lack of standing “terminates the
action other than on the merits and affords proper parties the opportunity to refile
without fear of the effects of res judicata”); Asher v. Cincinnati, 1st Dist. Hamilton No.
C–990345, 2000 WL 955617 (Dec. 23, 1999) (dismissal for lack of standing is not on
the merits for purposes of res judicata).
{¶11} In this case, appellant was not a party to the DA and was not a third-party
beneficiary to the same. Moreover, any alleged wrongful action by third parties to a
corporation creates a potential cause of action for the corporation, not its shareholders.
Adair v. Wozniak, 23 Ohio St.3d 174, 178 (1986). Appellant cannot, therefore, assert
the potential rights of KDL, the owner of the Tyler property, because his alleged injury is
indirect and duplicative of KDL’s alleged damages. See Id. Unless appellant is alleging
that, at some point, he will not be himself, a position he cannot seriously maintain, the
claims based upon alleged violations of the DA or purported injuries suffered by KDL
cannot be re-filed. In short, appellant will invariably lack standing to assert the
foregoing claims and therefore the specter of a res judicata bar will never realistically
loom. We therefore conclude the trial court did not err in dismissing appellant’s claims
for declaratory judgment vis-à-vis his concerns surrounding the DA or his allegations
premised upon alleged damages suffered by KDL with prejudice.
{¶12} Alternatively, if appellant is concerned about the potential preclusive effect
the lower court’s judgment might have on a future suit KDL might file, such concerns are
hypothetical and would require an improper advisory opinion. Assuming, arguendo,
5
KDL files a similar action, the defendants raise the affirmative defense of res judicata
based upon the underlying judgment, and the trial court concludes KDL is barred from
litigating the issues by operation of res judicata. At that point, the issue of the propriety
of applying the doctrine will be properly before us. Currently, however, the foregoing
scenario is mere possibility and this court, in this matter, must refrain from engaging in
exploratory analysis based upon hypotheticals.
{¶13} Appellant’s assignment of error lacks merit.
{¶14} For the above reasons, the judgment of the Lake County Court of
Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
TIMOTHY P. CANNON, J.,
concur.
6