Gardner v. PaxtonGardner v. Paxton
Douglas S. Gardner, Marietta, Ohio, pro se.
Timothy C. Loughry, Loughry, Buell & Sipe, LLC, Marietta, Ohio, for appellee Paxton.
Harsha, J.
{¶1} Douglas S. Gardner appeals the entry of summary judgment in favor of Rodney E. Paxton on claims arising from a limited liability company they co-owned. The trial court determined that res judicata barred the action, the statute of frauds barred one of the claims for contribution to the business, and Gardner lacked standing to raise four of the claims. Now Gardner asserts that the trial court erred by granting summary judgment in favor of Paxton.
{¶2} Gardner argues that Paxton’s summary judgment motion was defective because it was not made with the requisite particularity for him to make an appropriate response. Gardner forfeited this error by failing to raise it below, when he submitted a full response to the merits of the motion.
{¶3} Next Gardner argues that the trial court erred in holding that
{¶4} Gardner also claims that the trial court erred in granting summary judgment based on res judicata. But the exhibits attached to Paxton’s motion supported the court’s finding on Gardner’s first two claims. They established that Gardner could have raised them in prior litigation over the limited liability company.
{¶5} Finally, Gardner’s brief does not contest the trial court’s holding that he lacked standing to raise his four remaining claims.
{¶6} Therefore, we overrule Gardner’s assignment of error and affirm the judgment of the trial court.
I. FACTS
{¶7} Gardner filed a complaint in the Washington County Court of Common Pleas against Paxton alleging that Paxton and he were both members of Triple Tree Pre-cut Products (“Triple Tree”), a limited liability company. Gardner alleges Paxton had failed to make equal contributions and had engaged in various improper transactions involving Triple Tree. Paxton moved to dismiss the complaint under
{¶8} In his amended complaint Gardner raised six “claims”:1 (1) an adjustment of the parties’ contributions based on their agreement that they would share the profits and losses of Triple Tree equally; (2) payment by Paxton for a review of the Triple Tree transactions; (3) an accounting of Paxton’s and his company Silvesco’s use of Triple Tree’s fixtures after a May 2012 fire at the Silvesco plant; (4) a reduction of Paxton’s recorded contributions to account for equity in a loader; (5) an accounting for Paxton’s use of a Triple Tree truck; and (6) an order compelling Paxton to comply with his legal obligation to determine the money due and owing between the parties in the conduct and winding up of Triple Tree and the use of the company’s property.
{¶9} Paxton then filed a second motion to dismiss, which was based in part on res judicata due to the trial court’s judgment in Gardner’s Custom Sawing. The trial court granted the motion based on res judicata.
{¶10} On appeal we reversed and remanded because in general, “[r]es judicata is an affirmative defense that cannot be raised in a motion to dismiss under
{¶11} Paxton then moved for summary judgment, arguing that
{¶12} Gardner’s memorandum in opposition to Paxton’s motion for summary judgment addressed the merits of Paxton’s motion. However, he did not claim that the motion was procedurally deficient or that the evidence attached to it was improper. And he attached several unverified documents to his memorandum. The trial court granted Paxton’s motion to strike the attached items from Gardner’s memorandum.
{¶13} The trial court granted Paxton’s motion for summary judgment based on res judicata, also found that Gardner’s first claim was barred by
II. ASSIGNMENT OF ERROR
{¶14} Gardner assigns the following error for our review:
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEE RODNEY E[.] PAXTON.
III. STANDARD OF REVIEW
{¶16} The moving party has the initial burden of informing the trial court of the basis for the motion by pointing to summary judgment evidence and identifying parts of the record that demonstrate the absence of a genuine issue of material fact on the pertinent claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996); Chase Home Finance at ¶ 27. Once the moving party meets this initial burden, the nonmoving party has the reciprocal burden under
IV. LAW AND ANALYSIS
{¶17} In his assignment of error Gardner asserts that the trial court erred in granting summary judgment in favor of Paxton on the six claims in his amended complaint.
{¶18} First he argues that Paxton’s summary judgment motion was defective because it did not provide the requisite particularity for him to make an appropriate
{¶19} Gardner forfeited this error by failing to raise it below. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus (“It is a well-established rule that ‘ “an appellate court will not consider any error which counsel for a party complaining of the trial court‘s judgment could have called but did not call to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court” ’ ”); State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21 (“In contrast to waiver, forfeiture is the failure to timely assert a right or object to an error”); see also Bennett v. Mishell, 4th Dist. Meigs No. 07CA2, 2008-Ohio-1287, ¶ 13 (failure to object to summary judgment evidence below forfeited error on appeal). Moreover Paxton’s motion for summary judgment was sufficiently particular. Gardner was not denied notice and the opportunity to gather and present evidence to oppose Paxton’s motion. In fact, Gardner filed a memorandum in opposition that addressed the merits of the motion.
{¶20} Next Gardner contends that the trial court erred in holding that his first claim was barred by
{¶21} Gardner additionally asserts that the trial court erred by holding that his claims were barred by res judicata. Under 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.’ ” Kelm v. Kelm, 92 Ohio St.3d 223, 227, 749 N.E.2d 299 (2001), quoting Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus. “Res judicata bars the litigation of all claims that either were or might have been litigated in a first lawsuit.” Hughes v. Calabrese, 95 Ohio St.3d 334, 2002-Ohio-2217, 767 N.E.2d 725, ¶ 12. Gardner’s first two claims, requesting an accounting and resolution of the parties’ contributions as members to Triple Tree, were or could have been raised in his prior litigation, Gardner’s Custom Sawing v. Silvesco, Inc.. That litigation resolved the parties’ contributions and resulted in the winding up of Triple Tree. Consequently, res judicata barred the claims in Gardner’s complaint.
{¶23} Because Gardner has not established that the trial court erred by granting summary judgment to Paxton, we overrule his assignment of error, and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas 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
Hoover, P.J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, 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.