Evans Koukios, D/b/a Scientific Information Systems v. Marketing Dynamics, Inc.
| Decision Date | 07 September 1994 |
| Docket Number | C-930289,94-LW-1754,C-920918,C-920913,C-930555 |
| Parties | EVANS KOUKIOS, d/b/a SCIENTIFIC INFORMATION SYSTEMS, Plaintiff-Appellant/Cross-Appellee, v. MARKETING DYNAMICS, INC., Defendant-Appellee/Cross-Appellant and TOTAL ACCESS TECHNOLOGIES, Defendant. APPEAL |
| Court | Ohio Court of Appeals |
TRIAL NOS. A-9108767, A-9209214
Civil Appeals From Hamilton County Court of Common Pleas
Roger E. Friedmann, Esq., No. 0009874, 2150 Kroger Building, 1014 Vine Street, Cincinnati, Ohio 45202, for Plaintiff-Appellant/ Cross-Appellee,
Heuck & Ganson Co., L.P.A., and Michael B. Ganson, Esq., No. 0015944, 2440 Society Bank Center, 36 East Seventh Street, Cincinnati, Ohio 45202, for Defendant-Appellee/Cross-Appellant.
DECISION
This cause came on to be heard upon the appeals, the transcripts of the dockets, journal entries and original papers from the Hamilton County Court of Common Pleas, the transcript of the proceedings, and the briefs and arguments of counsel.
I. STATEMENT OF THE CASE
These appeals and cross-appeals are from a $5,650 judgment in favor of Marketing Dynamics, Inc., ("MDI") against Evans Koukios, of Scientific Information Systems, for breach of contract. In the assignments of error raised by Koukios and MDI, five issues merit consideration: (1) the consequences to Koukios of the Civ.R. 41(A) voluntary dismissal of his complaint when the trial court subsequently adjudicated MDI's counterclaims; (2) the damages awarded to MDI; (3) the trial court's discretion to tax depositions as costs (4) the effect of the trial court's refusal to grant a continuance; and (5) protection by work product for MDI's expert witness who was not scheduled to testify. We reverse the judgment on the amount of damages awarded to MDI, but, on all other issues, we affirm the judgment of the trial court.
Marketing Dynamics, Inc., raises funds for nonprofit organizations. (T.p. 286.) In 1990, when MDI began to expand its operations, it contracted with Evans Koukios to develop a computer system for internal operations. (T.p. 288.) Koukios's services for MDI consisted of selecting and supplying computer hardware, converting software programs, and writing additional software for the system. (MDI, Exh. 2.) After the system was installed, the programs developed problems. When Koukios billed MDI for amounts in excess of the project's anticipated budget, MDI refused to continue paying on its account. To remedy the defects in the computer system, MDI turned to a new programming company, Total Access Technologies ("TAT").
On October 8, 1991, Koukios sued MDI for $42,860.83, the unpaid portion under the contract. (T.d. 1, A-9108767.) On February 20, 1992, MDI answered the complaint and counterclaimed for $28,350 compensatory damages for Koukios's incompetent performance and $90,000 punitive damages for his "unconscionable" behavior. On June 15, 1992, after initial discovery, Koukios moved to amend his complaint to add a trade-secret claim against MDI and to join TAT as a party defendant on new claims for tortious interference with the contract and trade-secret violations. (T.d. 23.)
The trial court found that Koukios's motion was not timely and denied his request for leave to amend the complaint. Koukios then moved to compel the deposition of MDI's expert, TAT president, Fred McDowell. In response to MDI's argument that it retained McDowell as an expert in anticipation of litigation and not as a witness for trial, the trial court also denied that motion. On the trial date, October 1, 1992, after the trial court denied his motion for a continuance, Koukios voluntarily dismissed his complaint under Civ.R. 41(A). MDI, nevertheless, proceeded to trial on its counterclaims. Seeking to resurrect his dismissed claims, Koukios filed a new complaint against MDI and TAT (A-9209214). In that second complaint, he refiled his original claims and his new trade-secret claim against MDI and joined his tortious-interference and trade-secret claims against TAT.
At the conclusion of the trial on A-9108767, the trial court entered judgment in favor of MDI for $5,650. From that judgment, both parties appeal (C-920913 [Koukios], C-920918 [MDI]). The trial court subsequently dismissed Koukios's second complaint. From that judgment MDI and Koukios appeal (C-930289 [Koukios], C-930555 [MDI]). In this consolidated action, Koukios sets out eight assignments of error; MDI asserts five cross-assignments of error.
In his first assignment of error, Koukios argues that the trial court erred by not allowing him to amend his initial complaint in A-9108767. After a responsive pleading, a party may amend its complaint Civ.R. 15(A). An appellate court will not reverse the trial court's decision to overrule a motion for leave to amend unless there has been an abuse of discretion. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 175, 297 N.E.2d 113, 122. It is an abuse of discretion not to allow amendment to a pleading if: (1) a party timely files and establishes factual support for newly pleaded matters, (2) the adverse party is not prejudiced, and (3) there are no other reasons for denying the motion. Wilmington Steel Products, Inc. v. Cleveland Elec. Illuminating Co. (1991), 60 Ohio St.3d 120, 122, 573 N.E.2d 622, 624; Solowitch v. Bennett (1982), 8 Ohio App.3d 115, 117, 456 N.E.2d 562, 564-65. In Wilmington Steel, the trial court did not abuse its discretion by denying motions to amend when the movant made requests eleven and four days before trial seeking to add two new claims that were supported with only a paucity of evidence. Wilmington Steel at 122, 573 N.E.2d at 614-25.
Koukios argues that the trial court abused its discretion because, unlike the party in Wilmington Steel, he filed his motion three and one-half months before the trial date and based his amended complaint on information received during discovery. He admits in his brief, however, that had he been allowed to amend the complaint, the trial court would have had to continue the trial to accommodate objections raised by MDI. He also concedes that he would have asked TAT to testify at trial, in effect, obviating the trial court's refusal to compel discovery on grounds of work product.
Even if we assume that the trial court should have granted the motion to amend, Koukios's argument still must fail. When a plaintiff voluntarily dismisses its claims, the parties are left in exactly the same position as if the original complaint had never been filed. De Ville Photography, Inc. v. Bowers (1959), 169 Ohio St. 267, 272, 159 N.E.2d 443, 446-47. After the dismissal, the trial court does not have jurisdiction to take any further action in the matter. State ex rel. Hunt v. Thompson (1992), 63 Ohio St.3d 182, 183, 586 N.E.2d 107, 108; Rice v. McGrath (1991), 62 Ohio St.3d 70, 71, 577 N.E.2d 1100, 1101. Neither are the court's preceding incidental findings and orders subject to res judicata. De Ville Photography at 272, 159 at 446-47. Because the preceding incidental orders are not binding on either party, they are not final appealable orders. Id.; Central Mut. Ins. Co. v. Bradford-White Co. (1987), 35 Ohio App.3d 26, 28, 519 N.E.2d 422, 424 (); R.C. 2505.02.
In this case, the trial court in its judgment entry and accompanying opinion properly limited its adjudication to the counterclaims raised by MDI.[1] Because of Koukios's voluntary dismissal, the trial court's order did not adjudicate his complaint. Therefore, the incidental order denying the motion to amend is not res judicata and is not a final appealable order. The first assignment of error is overruled.
B. Dismiss Complaint
In his eighth assignment of error, Koukios contends that the trial court erred by dismissing his second complaint in A-9209214. MDI contends that, subject to Civ.R. 13(A), the issues in Koukios's complaint, which he voluntarily dismissed, became compulsory counterclaims when MDI proceeded on its own counterclaims. MDI argues that Koukios's failure to refile those claims now bars them under the doctrine of res judicata.
Civ.R. 13(A) requires that "all existing claims between opposing parties that arise out of the same transaction or occurrence must be litigated in a single lawsuit." Rettig Enterprises, Inc. v. Koehler (1994), 68 Ohio St.3d 274, 626 N.E.2d 99, syllabus ( Civ.R. 13[A]). If a claim from the transaction or occurrence existed at the time of the original pleading, it is a compulsory counterclaim and must be asserted in the current action. Rettig Enterprises at 277, 626 N.E.2d at 102. If the compulsory counterclaim is not brought in the existing action, it will be barred by the doctrine of res judicata. Geauga Truck & Implement Co. v. Juskiewicz (1984), 9 Ohio St.3d 12, 14, 457 N.E.2d 827, 829; Rettig Enterprises, syllabus. Even when a plaintiff's claim originally was filed as a complaint that later was dismissed voluntarily, if the defendant's own counterclaims proceed to trial, the plaintiff's claim is a compulsory counterclaim and is barred if it is not asserted in the existing action. Rettig Enterprises at 277-27, 626 N.E.2d at 102; Stern v. Whitlatch & Co. (1993), 91 Ohio App.3d 32, 631 N.E.2d 680; see, also, Lenihan v. Shumaker (May 6, 1987), Summit App. No. 12814, unreported; Dungan v. Bryant (Mar. 2, 1983), Lorain App. No. 3393, unreported (both cited with approval in Rettig Enterprises).
In this case, Koukios filed his complaint against MDI. MDI then filed its counterclaims. Koukios voluntarily dismissed his complaint, and MDI proceeded on its counterclaims. The trial court entered judgment for MDI. Under...
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