Powell v. Wal-Mart Stores, Inc.Powell v. Wal-Mart Stores, Inc.
JUDGMENT: REVERSED
Michael J. Cheselka, Jr.
R. Paul Cushion, II
Michael J. Cheselka, Jr., LLC
75 Public Square, Suite 920
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Paul L. Jackson
Ann M. Eberts
Roetzel & Andress, LPA
222 South Main Street
Akron, Ohio 44308
LARRY A. JONES, J.:
{¶ 1} Plaintiff-appellant, Elizabeth Powell (“Powell”), appeals the trial court’s dismissal of her complaint against defendant-appellee, Wal-Mart Stores, Inc. (“Wal-Mart”). Finding merit to the appeal, we reverse.
{¶ 2} In 2002, Powell filed a workers compensation claim against Wal-Mart, her employer, for injuries to her right knee. In 2007, she sought an additional allowance for tooth decay she alleged was the result of pain medicine and a decreased capacity to care for her teeth. Her claim was
{¶ 3} In May 2008, the parties reached an agreement and the trial court entered an order dismissing the case. The next month, Powell filed her first motion to enforce the settlement agreement, arguing that Wal-Mart had not performed pursuant to the agreement. The trial court held a hearing and granted the motion in part. Powell appealed. See Powell v. Bur. of Workers Comp., Cuyahoga App. No. 91915. The record reflects that the parties met with this court’s conference attorney and devised an amended settlement agreement. We issued an order stating “[s]ua sponte, by agreement of the parties and upon recommendation of the conference attorney, the appeal is settled and dismissed.”
{¶ 4} In March 2009, Powell filed a second motion to enforce the settlement agreement, this time challenging Paragraph 2 of the amended settlement agreement, which read: “Wal-Mart will pay for Elizabeth Powell’s presently indicated dental procedures which must be completed by October 1, 2010.”1 Wal-Mart objected, and the trial court denied the motion without opinion. Powell did not appeal that decision.
{¶ 5} In May 2009, Powell filed the complaint that is at issue in the
{¶ 6} Wal-Mart answered, asserting res judicata as one of its defenses. Wal-Mart subsequently filed a motion to dismiss pursuant to
{¶ 7} The court granted Wal-Mart’s motion to dismiss without opinion and dismissed the case.
{¶ 8} Powell appeals, raising the following assignment of error for our review:
{¶ 9} “I. “Plaintiff-appellant Elizabeth Powell assigns as error that the trial court improperly used the doctrine of res judicata as the basis for dismissing Powell’s claims.”
{¶ 10} Within this assignment of error, Powell argues that the trial court
{¶ 11} In this case, Wal-Mart raised the affirmative defense of res judicata in its answer. Wal-Mart then filed a motion to dismiss the complaint pursuant to
{¶ 13} Accordingly, judgment is reversed.
It is ordered that appellant recover of appellee her 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
LARRY A. JONES, JUDGE
CHRISTINE T. MCMONAGLE, P.J., CONCURS;
ANN DYKE, J., DISSENTS WITH SEPARATE OPINION
{¶ 14} I respectfully dissent. Although the majority concludes that whether the trial court had jurisdiction in Case No. CV-589436 is not in issue in this appeal, I believe that this was an essential question below, as Powell asserted that “Wal-Mart cannot assert res judicata here because Judge Friedman lacked subject matter jurisdiction in Case No. CV-589436 to make any rulings relating to any settlement between Powell and Wal-Mart.”
{¶ 15} Further, although I agree with the principle set forth in the majority opinion, that res judicata is generally not a basis for a dismissal pursuant to
{¶ 16} Here, I would find that Powell clearly waived any objection to the trial court’s consideration of the evidence of the earlier proceedings (and the conversion of the motion to a summary judgment motion). Specifically, I note that Powell failed to raise this issue, indicating in her brief in opposition, “[a]ttached hereto is a copy of Judge Friedman’s dismissal entry in Case No. CV 06 589436,” and arguing at length about the content and legal significance of the earlier ruling. Moreover, she does not make this argument on appeal.
{¶ 17} Finally, I would reject Powell’s argument that “Wal-Mart cannot assert res judicata here because Judge Friedman lacked subject matter jurisdiction in Case No. CV-589436 to make any rulings relating to any settlement between Powell and Wal-Mart” because, she claims, the court did not expressly retain jurisdiction in that matter. I would conclude that res judicata applies to the judgment entered in Case No. CV-589436 because the trial court did have jurisdiction in the earlier matter. See Marshall v. Beach (2001), 143 Ohio App.3d 432, 758 N.E.2d 247. In that case, the court held that if a case is conditionally dismissed upon the parties reaching a settlement, the trial court retains the authority to proceed in the matter if the condition upon which the case was originally dismissed does not occur. Id., citing Mellott v. Brawley (Sept. 22, 1995), Portage App. No. 94-P-0139 and Hines v. Zofko (Mar. 22, 1994), Trumbull App. No. 93-T-4928. Moreover, it was Powell who sought to enforce the continuing jurisdiction of the court in Case No. CV-589436, as she filed the motion
{¶ 18} I would therefore reject Powell’s argument that res judicata does not apply to the earlier proceedings, and I would affirm the trial court judgment in the instant matter on that basis.