Dehlendorf v. RitcheyDehlendorf v. Ritchey
Rendered on November 8, 2012
Michael A. Dehlendorf, pro se.
Loveland & Brosius, LLC, and William L. Loveland, for James G. Collins, Michele Marburger, Marshall L. Zimmerman, Karen S. Zimmerman, Michael D. Martin, Debra A. Lleonart, Gregg E. Morris, Kimberly S. Morris, Andrew P. Klaus, Trustee, and Jean A. Klaus Trustee.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1} Plaintiff-appellant, Michael A. Dehlendorf, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Dennis Ritchey, James G. Collins, Michele Marburger, Marshall L. Zimmerman, Karen S. Zimmerman, Rajko Milosevic, Dragica Milosevic, Michael D. Martin, Debra A. Lleonart, Gregg E. Morris, Kimberly S. Morris, Andrew P. Klaus, Andrew P. Claus Trustee, and Jean A. Klaus Trustee, and awarding attorney fees to appellees.
I. BACKGROUND
{¶ 2} At all times relevant to this matter, appellant was the president of Dehlendorf & Company (“DehlCo“). DehlCo was involved in the development of the subdivision known as Clear Creek Crossing Phase I, and, in February 1998, a limited warranty deed was executed to the Clear Creek Crossing Property Owners’ Association (“the Association“). Said document provides, in part, that if a member of the Association fails to pay an assessment, the Association has the right to commence legal proceedings against such member. Appellant alleges the Association‘s right to collect assessments was assigned to DehlCo and then further assigned to him individually.
{¶ 3} The complaint filed on July 2, 2009 against the residents of the subdivision seeks to collect alleged unpaid assessments. Dispositive motions were filed and the central argument raised by appellees was that collateral estoppel precluded the asserted claims. Specifically, it was argued that an earlier case filed in the Franklin County Court of Common Pleas, case No. 05CVH-05-5467 (“05CVH-5467“), considered the validity of the assignment from the Association to DehlCo and held the assignment was invalid.
{¶ 4} Here, the trial court framed the issue before it as whether appellant is a real party in interest because for appellant to be so, both the assignment from the Association to DehlCo and the assignment from DehlCo to appellant had to be valid. After consideration, the trial court concluded that, in 05CVH-5467, the validity of the assignment from the Association to DehlCo was previously litigated and found to be void. Thus, the trial court held appellant was collaterally estopped from asserting said assignment was valid, and appellant lacked legal standing to assert any cause of action based upon said assignment. Consequently, the trial court granted appellees’ motion for summary judgment.
{¶ 5} Thereafter, appellees sought both a finding that by asserting claims barred by collateral estoppel, appellant engaged in frivolous conduct, pursuant to
II. ASSIGNMENTS OF ERROR
{¶ 6} This appeal followed, and appellant brings the following five assignments of error for our review:
I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS.
II. THE TRIAL COURT ERRED BY FINDING COLLATERAL ESTOPPEL APPLIED IN THIS CASE.
III. THE TRIAL COURT ERRED IN GRANTING [SIC] DECLARATORY JUDGMENT AND QUIET TITLE RELIEF.
IV. THE TRIAL COURT ERRED BY ISSUING A PROTECTIVE ORDER PREVENTING PLAINTIFF-APPELLANT FROM TAKING DISCOVERY.
V. THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES.
III. APPELLEES’ MOTION
{¶ 7} Prior to addressing the merits of this appeal, we first address appellees’ motion to strike appellant‘s notice of appeal. Appellees assert that, pursuant to
{¶ 8} Here, the signed notice of appeal consists of appellant‘s name followed by a parenthetical containing three initials. In his memorandum contra to appellees’ motion
IV. STANDARD OF REVIEW
{¶ 9} This matter was decided in the trial court by summary judgment, which, under
{¶ 10} An appellate court‘s review of summary judgment is de novo. Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579 (8th Dist.1994); Bard v. Soc. Natl. Bank, nka KeyBank, 10th Dist. No. 97APE11-1497 (Sept. 10, 1998). As such, we must affirm the trial court‘s judgment if any of the grounds raised by the moving party at the trial court are found to support it, even if the trial court failed to consider those grounds. See Dresher; Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
V. DISCUSSION
A. First, Second, and Third Assignments of Error
{¶ 11} Because they are interrelated, appellant‘s first, second, and third assignments of error will be addressed together. The only argument asserted in these assigned errors is that the trial court‘s judgment is flawed because collateral estoppel is not applicable. According to appellant, collateral estoppel does not apply in this case because a final judgment was not entered in 05CVH-5467.
{¶ 12} The doctrine of res judicata precludes “relitigation of a point of law or fact that was at issue in a former action between the same parties and was passed upon by a court of competent jurisdiction.” Reasoner v. Columbus, 10th Dist. No. 04AP-800, 2005-Ohio-468, ¶ 5, citing State ex rel. Kroger Co. v. Indus. Comm., 80 Ohio St.3d 649, 651 (1998). In order to apply the doctrine of res judicata, we must conclude the following: “(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.” Reasoner at ¶ 5, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 381-82 (1995).
{¶ 13} The doctrine of res judicata has two aspects: claim preclusion and issue preclusion. Grava at 380. Claim preclusion holds that a valid, final judgment on 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. Id. at syllabus. Issue preclusion, also known as collateral estoppel, provides that “a fact or a point that was actually and directly at issue in a previous action, and was passed upon and determined by a court of competent jurisdiction, may not be drawn into question in a subsequent action between the same parties or their privies, whether the cause of action in the two actions be identical or different.” Fort Frye Teachers Assn. v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395 (1998). While claim preclusion precludes relitigation of the same cause of action, issue preclusion precludes relitigation of an issue that has been actually and necessarily litigated and determined in a prior action. Id., citing Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108, 112 (1969).
{¶ 14} In Thompson v. Wing, 70 Ohio St.3d 176 (1994), the Supreme Court of Ohio set forth three requirements for application of collateral estoppel or issue preclusion. “Collateral estoppel applies when the fact or issue (1) was actually and directly litigated in the prior action, (2) was passed upon and determined by a court of competent jurisdiction, and (3) when the party against whom collateral estoppel is asserted was a party in privity with a party to the prior action.” Id. at 183, citing Whitehead at paragraph two of the syllabus.
{¶ 15} Here, the record reflects that, in 05CVH-5467, DehlCo brought suit to recover assessments allegedly owed to the Association. DehlCo claimed entitlement to the assessments by virtue of an assignment of rights from the Association to DehlCo, which is the same assignment appellant argues gives rise to the causes of action asserted herein. In 05CVH-5467, a bench trial was held before a magistrate and the magistrate rendered a decision concluding that the purported assignment from the Association to DehlCo was void. The magistrate‘s decision was subsequently adopted by the trial court. Though an appeal was filed, it was dismissed as premature because a motion for attorney fees was pending before the trial court. Thereafter, the parties filed a jointly approved entry that stated, in relevant part, “Plaintiff [DehlCo] hereby dismisses this case with prejudice. Costs to Plaintiff.” (05CVH-5467 Entry rendered Apr. 28, 2009.) Because the matter was dismissed with prejudice and without vacating the final judgment that concluded the assignment from the Association to DehlCo was void, the trial court held collateral estoppel was triggered.
{¶ 16} Appellant asserts the trial court‘s holding is incorrect because there was no final judgment rendered in 05CVH-5467. However, appellant provides neither argument nor legal authority to support his conclusory statements. As held by the trial court, a final judgment finding the assignment from the Association to DehlCo void was rendered in 05CVH-5467. The subsequent dismissal of the case was with prejudice and the jointly-approved dismissal entry did not vacate the trial court‘s previously rendered judgment regarding the validity of the assignment. A dismissal entered with prejudice will, by application of the doctrine of res judicata, bar a subsequent attempt to refile the same action. Tower City Properties v. Cuyahoga Cty. Bd. of Revision, 49 Ohio St.3d 67, 69 (1990); Webb v. Webb, 10th Dist. No. 85AP-343 (Nov. 19, 1985); Customized Solutions, Inc. v. Yurchyk & Davis, CPA‘s, Inc., 7th Dist. No. 03 MA 38, 2003-Ohio-4881.
{¶ 17} Upon review, we conclude the validity of the assignment of rights from the Association to DehlCo was actually and directly litigated and was passed upon and determined by a court of competent jurisdiction. We also conclude that privity exists between DehlCo and appellant. Thompson. Therefore, we find collateral estoppel applies to preclude appellant from now asserting the assignment of rights from the Association to DehlCo was valid. Consequently, appellant‘s claims based on the invalid assignment must fail.
{¶ 18} Finding no error in the trial court‘s application of collateral estoppel, appellant‘s first, second, and third assignments of error are overruled.
B. Fourth Assignment of Error
{¶ 19} In his fourth assignment of error, appellant contends the trial court erred in issuing protective orders to prevent him from taking discovery. According to appellant, the protective orders made it “impossible” for him to prove his claims and “acted almost as a ‘gag order.’ ” (Appellant‘s Brief, 14.) Other than this blanket assertion, appellant provides no indication of how the trial court‘s discovery orders hindered his ability to present his claims.
{¶ 20}
{¶ 21}
{¶ 22} From the record, it appears a number of appellees sought protective orders to cancel depositions scheduled by appellant. Appellees also sought a stay of all other depositions until the pending motion for summary judgment was resolved. The trial court concluded the dispositive issue before it, i.e., whether or not collateral estoppel applied, was dependent on consideration of authenticated court documents from a prior action, and thus, deposing the homeowners was unnecessary, burdensome, and not reasonably calculated to lead to the discovery of admissible evidence related to the issue of collateral estoppel. Consequently, the trial court granted the motion for protective order and ordered that depositions would be stayed until the court rendered a decision on the pending summary judgment motion.
{¶ 23} As indicated previously, appellant fails to demonstrate how the requested depositions could lead to admissible evidence related to the issue of collateral estoppel and its application to the matter at hand. Thus, we conclude the trial court did not abuse its discretion in granting appellees’ motion for a protective order. Accordingly, appellant‘s fourth assignment of error is overruled.
C. Fifth Assignment of Error
{¶ 24} In his fifth assignment of error, appellant contends the trial court erred in awarding attorney fees. Appellant does not challenge the amount awarded, but, rather, challenges the trial court‘s finding that appellant engaged in frivolous conduct.
{¶ 25} Pursuant to
{¶ 26} According to appellant, “[t]he Trial Court awarded attorney fees as a result of succumbing to the argument that [appellant] filed a frivolous lawsuit by virtue of collateral estoppel, and by denying [appellant] the ability to take discovery in order to prove its case.” (Appellant‘s Brief, 14.) Yet, appellant does not provide any argument as to why the trial court erred in finding appellant‘s actions with respect to this litigation constituted frivolous conduct.
{¶ 27} In our disposition of appellant‘s first three assignments of error, we have affirmed the trial court‘s conclusion that appellant‘s asserted claims are barred by the doctrine of res judicata. In prior cases of this court, sanctions have been awarded where a party ignores or fails to investigate the doctrine of res judicata. See Stuller v. Price, 10th Dist. No. 03AP-30, 2003-Ohio-6826; Sain v. Roo, 10th Dist. No. 01AP-360, 2001-Ohio-4115 (“filing of appellants’ 1998 action was so clearly barred by res judicata that appellants had no objective basis to believe it was not so barred“); Streb v. AMF Bowling Ctrs., Inc., 10th Dist. No. 99AP-633 (May 4, 2000) (since appellant‘s claim was barred by res judicata, refiling the claim met the definition of “frivolous conduct” under
{¶ 28} In the case before us, the trial court held a hearing on the motion seeking an award of attorney fees based on appellant‘s alleged frivolous conduct. According to the trial court‘s final judgment entry, the court announced its decision from the bench and, thereafter, concluded attorney fees incurred after January 1, 2010 were reasonable in both time and amount.
{¶ 29} Appellant, however, has not provided a transcript of the sanctions hearing, and, therefore, this court is unable to review appellant‘s fifth assignment of error. Flatinger v. Flatinger, 10th Dist. No. 03AP-663, 2004-Ohio-130, ¶ 7, citing 513 E. Rich St. Co. v. McGreevy, 10th Dist. No. 02AP-1207, 2003-Ohio-2487, ¶12; Alexander v. Yackee, 5th Dist. No. 2008CA00200, 2009-Ohio-1387 (without a transcript, appellate court unable to review a challenge to the trial court‘s finding of frivolous conduct and award of attorney fees). When a party seeks to appeal a judgment, that party bears the burden of demonstrating error by reference to the record of the proceedings below, and it is that party‘s duty to provide this court with a transcript of the proceedings below. Flatinger at ¶ 7, citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). ” ‘When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court‘s proceedings, and affirm.’ ” Id., quoting Knapp. Because appellant has not provided this court with a transcript of the hearing on appellees’ motion for sanctions, we must presume the validity of the trial court‘s proceedings and affirm. Flatinger; McGreevy. Accordingly, appellant‘s fifth assignment of error is overruled.
VI. CONCLUSION
{¶ 30} Having overruled appellant‘s five assignments of error, the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Motion to strike denied;
judgment affirmed.
BROWN, P.J., and DORRIAN, J., concur.
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