[Cite as Ullom v. Agoston,
2022-Ohio-3813.]
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: October 27, 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.
ON RECONSIDERATION1
CORNELIUS J. O’SULLIVAN, JR., J.:
1
The original decision in this appeal, Ullom v. Agoston, 8th Dist. Cuyahoga
No. 110715, 2022-Ohio-696, released March 10, 2022, is hereby vacated. This opinion,
issued upon sua sponte reconsideration, is the court’s journalized decision in this appeal.
See App.R. 22(C); see also S.Ct.Prac.R. 7.01.
Upon review, this court sua sponte reconsiders its decision in this case.
After reconsideration, the opinion as announced by this court on March 10, 2022,
Ullom v. Agoston, 8th Dist. Cuyahoga No. 110715, 2022-Ohio-696, is hereby vacated
and substituted with this opinion.
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.
In July 2020, “counsel advised the court that the case [was] settled.”
The trial court advised “counsel to file a consent judgment entry, notice, or
stipulation of dismissal by 08/06/2020.” The trial court further stated that “failure
to comply with this order will result in dismissal, sua sponte, of all claims without
further notice to the parties, with costs to be assigned by the court.”
On August 7, 2020, appellants filed a Civ.R. 41(A) notice of voluntary
dismissal, dismissing the action without prejudice.
On August 14, 2020, the trial court filed an entry stating that “the
parties have failed to comply with this court’s prior order dated 07/07/2020. This
case is hereby dismissed with prejudice.”
That same day, August 14, appellants filed “a motion for
reconsideration and/or motion to vacate order of August 14, 2020.” In their motion,
the appellants stated that “[t]his Court previously dismissed the other defendants
(the ‘Agostons’) and Allstate Insurance on a motion for summary judgment and a
motion for judgment on the pleadings by order dated September 11, 202[0]. This
left only defendant Erie Insurance as the sole remaining defendant in this case.”
Appellants stated that they “filed a Rule 41(A) voluntary dismissal of the remaining
defendant (Erie Insurance) on August 7, 2020 — thus terminating this case.”
On August 27, 2020, relying on appellants’ representations in their
motion, the trial court granted the appellants’ motion for reconsideration and/or to
vacate its August 14, 2020 judgment, and noted that the case was dismissed without
prejudice pursuant to appellants’ August 7, 2020 voluntary dismissal. 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. The trial court noted
that when appellants filed their August 7, 2020 voluntary dismissal in the first case,
the remaining defendant was Erie, and that appellants failed to appeal from the final
judgment in the first case. 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 County 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 granted judgment on the pleadings
on appellants’ claims against appellees. 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. The
court’s entry did not indicate “that there is no just cause for delay,” demonstrating
that the trial court did not intend the decision to be immediately appealable. Id. 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
original case was resolved by the trial court’s 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.2 Thereafter,
2 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.’”).
This case, based on appellants’ own representations, falls under
Denham, as the appellants dismissed only the remaining party, Erie, thereby
creating a final, appealable order as to the trial court’s prior interlocutory order.
Because this case fits squarely under the Supreme Court of Ohio’s
holding in Denham, we find that this action is barred under the doctrine of res
judicata. The appellants’ sole assignment of error is without merit and hereby
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing 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 DANIEL CELEBREZZE, III, P.J., and
MARY EILEEN KILBANE, J., CONCUR
