Mynes v. BrooksMynes v. Brooks
Scott L. Braum, Dayton, Ohio, for Appellants, JDG Home Inspections, Inc., d/b/a The HomeTeam Inspection Service, and Tim Gambill.
Kristin E. Rosan and Timothy G. Madison, Columbus, Ohio, for Appellees.
Kline, J.:
{¶1} JDG Home Inspection, Inc., d/b/a the HomeTeam Inspection Service, and Tim Gambill (collectively the “Inspectors“) appeal the judgment of the Scioto County Court of Common Pleas, which granted Timothy and Janeen Mynes” (collectively the “Myneses“)
{¶2} We have considered this matter before. Originally, we found that the trial court‘s order was not a final appealable order, and, as a result, we dismissed this appeal for lack of jurisdiction. See Mynes v. Brooks, Scioto App. No. 07CA3185, 2008-Ohio-5613, at ¶19. However, the Supreme Court of Ohio reversed our judgment in Mynes v. Brooks, 124 Ohio St.3d 13, 2009-Ohio-5946. Therefore, pursuant to the Supreme Court of Ohio‘s decision, we will now consider the merits of the Inspectors’ appeal. See id. at ¶13.
{¶3} Additionally, we recently decided a companion case that arose from the same series of events. See Mynes v. Brooks, Scioto App. No. 08CA3211, 2009-Ohio-5017. Because our opinion in the companion case recounts many of the facts of this matter, we will not repeat those facts here. Instead, we will discuss only the facts pertinent to this particular appeal.
{¶4} The Myneses purchased a house in Portsmouth, Ohio. Before closing on the house, the Myneses hired the Inspectors to perform a general home inspection. The agreement between the Inspectors and the Myneses contains the following arbitration clause: “Any controversy or claim arising out of or related to this Agreement, its breach, or the Report must be settled by binding arbitration in accordance with the rules of the American Arbitration Association, and judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction.”
{¶5} The Inspectors noted several potential issues with the house, including the presence of mold in various places. The inspection report discusses the mold in an italic font, offsetting this discussion from the rest of the report. The section on mold also
{¶6} After discovering that the house was full of toxic black mold, the Myneses filed a complaint against the Inspectors, the sellers, the builders, and various other defendants. As to the Inspectors, the complaint asserts claims of breach of fiduciary duties, failure to disclose, negligence, and respondeat superior.
{¶7} The Inspectors moved to stay the claims against them pending arbitration, and, eventually, the Myneses agreed to the stay. As a result, the trial court granted the stay in an AGREED ORDER GRANTING INSPECTION DEFENDANTS’ MOTION TO STAY CLAIMS PENDING ARBITRATION.
{¶8} Several months later, the Myneses sought relief from the agreed order by filing a
{¶9} The Inspectors appeal and assert the following assignment of error: “THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT: 1) CONSIDERED AND THEN, WITHOUT A HEARING, GRANTED [THE MYNESES‘] CIVIL RULE 60(B) MOTION FOR RELIEF FROM THE AGREED TRIAL COURT ORDER OF SEPTEMBER 5, 2006, AND 2) WITHOUT ANY DISCOVERY, FULL BRIEFING, OR A HEARING, SUA SPONTE, DENIED [THE INSPECTORS‘] MOTION TO STAY CLAIMS PENDING ARBITRATION.”
II.
{¶11} “A trial court‘s ruling on a motion for relief from judgment lies within the sound discretion of the trial court and will not be overturned absent a showing of an abuse of that discretion.” Natl. City Home Loan Servs., Inc. v. Gillette, Scioto App. No. 05CA3027, 2006-Ohio-2881, at ¶12, citing Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77; Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. An abuse of discretion connotes more than a mere error of judgment; it implies that the court‘s attitude is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶12} “A reviewing court will not find an abuse of discretion merely because it could maintain a different opinion if it were deciding the case de novo.” Dunkle v. Dunkle (1999), 135 Ohio App.3d 669, 675, citing Lewis v. Alfa Laval Separation, Inc. (1998), 128 Ohio App.3d 200, 207. Nevertheless, “[t]he discretion exercised by the trial court in considering a
{¶13} “In order to prevail on a motion for relief from judgment under
{¶14} Initially, the Inspectors argue that the Myneses’
{¶15} We recognize that “res judicata” can have different meanings. And because of those different meanings, we understand that the term res judicata “causes confusion in discussions.” Dickens v. Bethlehem Baptist Church (Sept. 15, 1994), Cuyahoga App. No. 65740, at fn. 1. Here, the Inspectors do not base their argument on either issue preclusion or claim preclusion. See, generally, State ex rel. Nickoli v. Erie MetroParks, --- Ohio St.3d ----, 2010-Ohio-606, at ¶21 (explaining the doctrines of issue preclusion and claim preclusion). Thus, the Inspectors have not advanced a res judicata argument in the traditional sense. Rather, the Inspectors use the term res judicata because they believe “[a]n issue * * * has been definitively settled by judicial decision.” Black‘s Law Dictionary (8th ed.2004). Essentially, the Inspectors argue that the agreed entry definitively settled the arbitration issue.
{¶16} “This court has held that a party may not directly or collaterally attack a consent judgment in the absence of allegations of irregularity or fraud in the procurement of the judgment.” Shanks v. Shanks (Mar. 10, 1997), Ross App. No. 96CA2252. We applied this holding in Shanks and found that a trial court abused its discretion by granting a
{¶17} Here, the Myneses have not alleged any irregularities or fraud in the procurement of the agreed entry. Similarly, the Myneses have not alleged that the agreed entry differs from their actual agreement with the Inspectors. See, generally, C.B.H., Inc. v. Joseph Skilken & Co. (Dec. 17, 1993), Lake App. No. 93-L-038 (stating that
{¶18} In response to the Inspectors’ argument, the Myneses erroneously cite this court‘s decision in S. Ohio Coal Co., supra. In S. Ohio Coal Co., we upheld the trial court‘s decision to grant a
{¶19} Finally, the Myneses argue that res judicata does not apply because the agreed entry was not “rendered on the merits.” This argument relates to the doctrine of claim preclusion, see, e.g., State ex rel. Lowery v. McArver, Franklin App. No. 09AP-313, 2009-Ohio-6844, at
{¶20} Accordingly, for the foregoing reasons, we sustain the Inspectors’ sole assignment of error. Because the Myneses’
JUDGMENT REVERSED AND CAUSE REMANDED.
It is ordered that the JUDGMENT BE REVERSED and this cause BE REMANDED to the trial court for further proceedings consistent with this opinion. Appellees shall pay the 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 Scioto County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ______________________________
Roger L. Kline, 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.