Reasoner v. ColumbusReasoner v. Columbus
OPINION
{¶ 1} Walter C. Reasoner, plaintiff-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court granted summary judgment to the city of Columbus and Judge Bruce Jenkins, defendants-appellees.
{¶ 2} On February 5, 2002, appellant filed his initial suit against appellees alleging that Judge Brucе Jenkins violated his constitutional rights by dismissing a previous action brought by appellant when appellant refused to retain an attorney. Appellant sued the city of Columbus in its capacity as Judge Jenkins’ employer. An amended complaint was filed, and appellees filed a
{¶ 3} On February 12, 2004, appellant filed a “renewal complaint” in the present action against appellees. Appellant claimed he was filing the “renewal complaint” against the same parties and based upon the same grounds as contained in his February 5, 2002 complaint pursuant to
First Assignment of Error
The trial Court erred in not taking judicial notice of the rules of the Supreme Court of this state, and of the decisional, Constitutional, and public statutory law of this state.
Second Assignment of Error
The triаl Court erred in granting Defendants Summary Judgment based on evidence not properly before the Court.
Third Assignment of Error
The trial Court erred in granting Defendants summary judgment when there exists a genuine issue of adjudicative fact of “whether or not the common law doctrine of judicial immunity conflicts with Sections of the Ohio Constitutions [sic], Bill of Rights.”
Fourth Assignment of Error
The trial Court erred in not engaging in an analysis of the “City‘s liability” before dismissing Plaintiff‘s instant refiled case undеr
{¶ 4} Appellant argues in his first assignment of error that the trial court erred in granting summary judgment to appellees. Our review of the trial court‘s decision to grant summary judgment is de novo. See Helton v. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio App.3d 158, 162.
{¶ 5} Appellant basiсally asserts under this assignment of error that res judicata does not apply to a prior dismissal based upon the failure to state a claim upon which relief can be granted pursuant to
{¶ 6} There is no dispute that the current action involved the same parties, raised the same claims, and arose out of the same occurrence as the prior February 5, 2002 action, and that there was a prior valid judgment rendered in that action on June 28, 2002. Therefore, the only issue in dispute is whether the June 28, 2002 judgment was on the merits.
{¶ 7} Appellant claims that a dismissal for failure tо state a claim upon which relief can be granted pursuant to
{¶ 8} The court in Customized Solutions, Inc. v. Yurchyk & Davis, CPA‘s, Inc., Mahoning App. No. 03 MA 38, 2003-Ohio-4881, analyzed a similar situation under
{¶ 9} The court in Customized Solutions acknowledged that there existed authority to the contrary; however, it cited a recent Ohio Supreme Court case, Hughes v. Calabrese, 95 Ohio St.3d 334, 2002-Ohio-2217, in support of its analysis. In Hughes, the court addressed whether a seсond petition for a writ of prohibition was barred by res judicata due to its prior dismissal of the petition under S.Ct.Prac.R. X(5), which did not specify whether the dismissal was with or without prejudice. The court concludеd that its original dismissal operated as an adjudication on the merits pursuant to
{¶ 10} This court has also previously found that the dismissal of a complaint pursuant to a
{¶ 11} As noted in Customized Solutions, there is also authority to the contrary. See, e.g., Jackson v. Ohio Bur. of Workers’ Comp. (1994), 98 Ohio App.3d 579 (petition was dismissed not on the merits but, rather, pursuant to Civ.R. 12[B][6] for failure to state a claim upon which relief could be granted; thus, the doctrine of res judicata will not prevent a claim from being considered); Plummer v. Hose (1993), 83 Ohio App.3d 392, 393 (a Civ.R. 12[B][6] dismissal is procedural in nature and not a judgment on the merits of a case); Simpson v. City of Lakewood, Cuyahoga App. No. 82624, 2003-Ohio-4953 (citing Plummer, supra). However, many of these cases were decided before the Ohio Supreme Court‘s dеcision in Hughes, and none of the decisions that were rendered post-Hughes addressed the application of Hughes. Thus, we find these cases less persuasive. Accordingly, pursuant to our reading of the Civil Rules and the decisions in Customized Solutions, Hughes, and Mayrides, we find that the dismissal of appellant‘s prior complaint pursuant to a
{¶ 12} Appellant argues in his second assignment of error that the trial court erred in granting appellees summary judgment based upon evidence not properly before that court. Specifically, appellant contends that appellees improperly attached the following two documents to their motion for summary judgment: (1) a copy of the June 28, 2002 judgment filed in the first action; and (2) a copy of case law from another court. However, appellant failed to raise these arguments at the trial court level. Appellant‘s failure to raise the issues in the trial court constitutes a waiver of the error claimed. State v. Comen (1990), 50 Ohio St.3d 206, 211. Generally, “an appellate court will not consider any error which counsel for a party comрlaining 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. Childs (1968), 14 Ohio St.2d 56, pаragraph three of the syllabus. Therefore, appellant waived this argument, and his second assignment is overruled.
{¶ 13} We will address appellant‘s third and fourth assignments of error together. Appellant argues in his third assignment of error that the trial court erred in granting appellees summary judgment because there existed a genuine issue of fact as to whether the common-law doctrine of judicial immunity conflicted with his constitutional rights. Appellant argues in his fourth assignment of error that the trial court erred in failing to engage in an analysis of the liability of the city of Columbus before granting summary judgment in the instant casе. However, the issues of judicial immunity and the liability of the city of Columbus were already disposed of by the trial court‘s dismissal of appellant‘s first complaint on June 28, 2002. Therefore, appellant‘s third and fourth assignments of error are overruled.
{¶ 14} Accordingly, appellant‘s four assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
Brown, P.J., Lazarus and Klatt,