Crestmont Cleveland Partnership v. the Ohio Department of Health
| Decision Date | 28 September 2000 |
| Docket Number | 00-LW-4509,00AP-180 |
| Parties | Crestmont Cleveland Partnership, Plaintiff-Appellant v. The Ohio Department of Health et al., Defendants-Appellees |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
Geoffrey E. Webster and J. Randall Richards, for appellant.
Betty D. Montgomery, Attorney General, and Dennis G. Nealon, for appellees.
Crestmont Cleveland Partnership, plaintiff-appellant, appeals a judgment of the Franklin County Court of Common Pleas granting the motion to dismiss filed by defendants-appellees, the Ohio Department of Health ("ODH") and William Ryan, the former director of ODH (now Director J. Nick Baird, M.D.).
Appellant owns the following five nursing homes in the Cleveland and Lorain County areas: Willow Park, Palm Crest Bellaire, Palm Crest East, Palm Crest West, and Sensi-Care. Appellant also owns a Certificate of Need ("CON") for each of the nursing homes. CONs represent certain rights to operate long-term care beds in Ohio and are issued and regulated by appellees. CONs may be bought and sold. Each of the nursing homes are leased and operated by parties unrelated to appellant. The leases acknowledge that the CONs for each home are the property of appellant and forbid the lessees from selling, conveying, or assigning the CONs without the permission of appellant.
Appellant maintains that appellees have, in the past, granted CONs in violation of the rights of owners. It also claims in its complaint that there has been litigation between other parties as a result of claims by each that they possess the same rights under their respective CONs. Appellant wishes to be able to assure others that it is, in fact, the owner of its CONs; however, appellees have never issued any document stating such.
On April 6, 1998, appellant filed this action against appellees and other non-state defendants seeking declaratory and injunctive relief declaring that it owns the CONs for the Willow Park nursing home and prohibiting appellees from changing the ownership of the Willow Park CONs. On April 24, 1998, the non-state defendants filed a motion to dismiss on the grounds that the Cuyahoga County Court of Common Pleas had exclusive jurisdiction over the subject matter of the complaint pursuant to the jurisdictional priority rule. On May 11, 1998, appellees filed a motion to dismiss on the grounds that appellant lacked standing to pursue the action, that appellant failed to exhaust administrative remedies, and appellant failed to state a claim upon which relief could be granted. On June 12, 1998, the trial court granted the non-state defendants' motion to dismiss and denied as moot appellees' motion to dismiss. Therefore, the trial court dismissed the entire action as to both appellees and the non-state defendants.
Appellant appealed the trial court's decision. Appellees did not participate in those appellate proceedings through pleadings, cross-assignments of error, or otherwise. In Crestmont Cleveland Partnership v. Ohio Dept. of Health (Sept. 9, 1999), Franklin App. No. 98AP-1272, unreported, we affirmed the trial court's dismissal of appellant's complaint as to the non-state defendants but found that the trial court erred in dismissing this claim under the jurisdictional priority rule with regard to appellees.
On remand, appellees filed another motion to dismiss. While the motion was pending, on January 27, 2000, appellant filed an amended complaint to include injunctive relief regarding the four other nursing homes in addition to Willow Park. On January 28, 2000, the trial court rendered a decision granting the dismissal of the amended complaint. The trial court's decision was filed on February 1, 2000. Appellant appeals the trial court's decision, asserting the following three assignments of error:
Appellant argues in its first assignment of error that the trial court erred in permitting appellees to refile their motion to dismiss upon remand when the court had previously denied that motion and appellees failed to appeal that decision. Specifically, appellant asserts that the trial court erred for three reasons: (1) appellees are barred by Civ.R. 12(G) and (H) from filing successive Civ.R. 12(B) motions to dismiss; (2) appellees are barred by the doctrine of res judicata from filing successive motions to dismiss; and (3) the lower court incorrectly applied the doctrine of the law of the case to this matter.
With regard to res judicata, the Supreme Court of Ohio explained: "[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." Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, syllabus. Where a judgment is rendered on grounds not involving the merits of the case, that judgment cannot be used as a basis for the defense of res judicata. McGatrick v. Wason (1855), 4 Ohio St. 566; see, also, Hodge v. Hoover Co. (Aug. 5, 1985), Stark App. No. CA-6618, unreported. In the present case, as to the first motion to dismiss, there was never a final judgment rendered upon the merits. The trial court found in its September 25, 1998 judgment that "defendant Ryan and ODH's Motion to Dismiss is hereby DENIED as moot, and this action is hereby DISMISSED." Therefore, because the trial court found the first motion moot, there was no judgment on the merits of appellees' motion to dismiss, and appellees' second motion to dismiss was not precluded by res judicata.
Likewise, Civ.R. 12(G) and (H) do not prohibit the filing of the two motions to dismiss under the circumstances of this case. Civ.R. 12(G) and (H), in general, prohibit the filing of successive motions under Civ.R. 12(B). The trial court's finding that the initial motion to dismiss was moot and its failure to rule on the merits renders Civ.R. 12(G) and (H) inapplicable. Appellant points to no authority to support its contrary interpretation of Civ.R. 12(G).
Appellant also argues that the law of the case precludes appellees' second motion. As it is most frequently applied, the doctrine of the law of the case provides that a decision of a reviewing court remains the law for that case as to all relevant legal questions in subsequent proceedings, both at trial and appellate levels. North Olmsted v. Eliza Jennings, Inc. (1993), 91 Ohio App.3d 173; Nolan v. Nolan (1984), 11 Ohio St.3d 1. There is also a "less common *** aspect of the law of the case doctrine, under which courts may give preclusive effect to a ruling that could have been appealed, but has been abandoned by a failure to do so." Clymer v. Clymer (Sept. 26, 1995), Franklin App. No. 95APF02-239, unreported, quoting In re Doe Stripper Well Exemption Litig. (D.Kan.1993), 821 F.Supp. 1432, 1434; see, also, Hubbard ex rel. Creed v. Sauline (1996), 74 Ohio St.3d 402, 404-405.
Although appellant claims that the trial court should have denied the second motion to dismiss because appellees could have litigated those issues in the first appeal by way of cross-assignment of error, we disagree. Courts have held that a trial court should not apply the doctrine of the law of the case when the appellate court makes conclusions relating to issues which were not decided originally by the trial court. State ex rel. Lee v. Trumbull County Probate Court (Sept. 17, 1999), Trumbull App. No. 97-T-0150, unreported; Orrville Products, Inc. v. MPI, Inc. (June 9, 1994), Cuyahoga App. No. 65184, unreported (parties should not be foreclosed from having an opportunity to try issues not fully litigated in the lower court or issues upon which the lower court never made an express finding). In the present case, if in the first appeal we would have ruled upon the issues contained in appellees' original motion to dismiss, we would have been, in effect, determining appellees' motion to dismiss de novo because the trial court never made a finding as to this motion or the issues contained therein. Thus, we would have usurped the power of the trial court's duty to consider the motion and issues.
Further, we have stated before that it is well established that a reviewing court will not ordinarily address issues that were not tried by the trial court. State ex rel. Pitz v. Columbus (1988), 56 Ohio App.3d 37, 45. Appellate courts also do not address issues that the trial court declined to consider. Oakwood v. Clark Oil & Refining Corp. (1986), 33 Ohio App.3d 180, 183-184; Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 89 (where a trial court declines to consider one of the arguments raised in support of a motion, but granted the motion solely on the basis of a second argument, the first argument is not properly before the court of appeals). In such a situation, the appellate court should reserve judgment until such time as the undecided issues are considered by the trial court and that decision is appealed. Warner v. Uptown-Downtown Bar (Dec. 20, 1996), Wood App. No. WD-96-024, unreported. Thus, in the present case, because the trial court fo...
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