Jamestown Village Condo. Owners Assn. v. Market Media Research, Inc., s. 64815

• Decision Date: 04 August 1994
• Docket Number: Nos. 64815,66113,64816,65272,s. 64815
• Citation: 96 Ohio App.3d 678,645 N.E.2d 1265
• Parties: JAMESTOWN VILLAGE CONDOMINIUM OWNERS ASSOCIATION, Appellee, v. MARKET MEDIA RESEARCH, INC., et al. Appellants. *
• Court: Ohio Court of Appeals

Page 678

96 Ohio App.3d 678

645 N.E.2d 1265

JAMESTOWN VILLAGE CONDOMINIUM OWNERS ASSOCIATION, Appellee, v. MARKET MEDIA RESEARCH, INC., et al. Appellants. ^*

Nos. 64815, 64816, 65272, 66113.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Aug. 4, 1994.

John J. Duffy & Associates and John J. Duffy, Cleveland, for appellee.

Snyder, Neff & Chamberlin and Owen C. Neff, Cleveland, for appellants.

PORTER, Judge.

Defendants-appellants Market Media Research, Inc., et al. ("MMR") in this consolidated appeal asserts error in the trial court's denial of further relief under the declaratory judgment statute (R.C. 2721.09), in the appointment of a receiver, in denying motions to transfer a subsequent case as a related case to the original trial judge, in denying motions to strike affidavits, and in denying a motion to intervene. MMR also challenges the trial court's vacating a stay of proceedings and issuing case management orders while the case is pending on appeal and in overruling motions for sanctions. Plaintiff-appellee Jamestown Village Condominium Owners Association will hereinafter be referred to as "Jamestown." For the reasons hereinafter stated, we affirm in part, dismiss in part and remand for further proceedings.

The complexity of these appeals and the issues they present arise in large part from the fact that a subsequent case (herein "Jamestown III") was assigned on filing to a different common pleas judge than the judge to whom two earlier cases (Jamestown I and II) were originally assigned and by whom disposition was made. Jamestown III was not identified as a "related case" to the earlier two cases at the time it was filed.

The record below is replete with a dismaying array of motions to compel, to consolidate, to show cause, for sanctions, for protective orders, for default, to strike, to dismiss, and for summary judgment, accompanied by numerous briefs and counter-briefs. The docket for Jamestown III alone consists of eleven pages containing over two hundred entries. Nevertheless, we shall attempt, as briefly as the circumstances permit, to trace the tortured history of these cases in order to address the legal issues that eventually emerge.

The first and second cases (Jamestown I and II) arose out of a dispute over whether or not MMR had purchased a condominium unit from one Stephen Klausman by land contract in 1982 without giving Jamestown notice of Klausman's intention to sell and a first right of refusal in Jamestown to purchase the unit as required by the Declaration of Condominium Ownership. This dispute was the subject of the first two suits.

The first suit in declaratory judgment (Jamestown I) was filed by Jamestown on January 28, 1988 as common pleas No. 143483 and assigned to Judge Michael J. Corrigan, who dismissed the case without prejudice on May 6, 1988, for Jamestown's failure to appear at a status call. The same complaint was subsequently refiled by Jamestown on May 16, 1988 as common pleas No. 149815 (Jamestown II) and reassigned to Judge Corrigan as a related case pursuant to C.P.Sup.R. 4. The record of the earlier case was incorporated and Jamestown I and II were consolidated and disposed of on September 6, 1988 by summary judgment in favor of MMR. For convenience, we will hereinafter refer to the two original cases as "Jamestown II," except as the context otherwise requires.

Jamestown appealed and this court affirmed the summary judgment in Jamestown Village Condominium Owners Assn. v. Klausman (Jan. 25, 1990), Cuyahoga App. Nos. 56516 and 56517, unreported, 1990 WL 4473. This court held that the actions of Jamestown, "unrebutted by evidentiary material below, are sufficient to constitute a waiver of the written notice requirement for the contemplated sale of unit 201 [the Klausman unit]." Id. at 6-7.

Prior to the filing of Jamestown I and II, in February 1987 a leak in the roof damaged MMR's unit. A dispute arose as to the timeliness of repairs. By May 1987, MMR refused to pay its maintenance fees until the problem was resolved. In June 1987, the roof was replaced and in August the insurer paid MMR's claim for damages by sending a check for $1,582.40 to Jamestown under the loss payable clause in the policy. By letter dated September 2, 1987, MMR instructed Jamestown to deduct an amount equal to the maintenance fees from May to September 1987, and remit the balance of the insurance proceeds to MMR. This was not done. On September 28, 1987, Jamestown filed a lien against MMR's unit for the delinquent maintenance fees.

While Jamestown II was still pending before Judge Corrigan, on August 5, 1988, Jamestown filed a third suit as common pleas No. 154270 (Jamestown III), which was assigned to Judge Timothy J. McMonagle. The new complaint alleged breach by MMR of the Jamestown Declaration and By-Law provisions which required MMR to pay common maintenance fees on the 201 unit and sought judicial foreclosure of Jamestown's lien for such delinquencies.

Counsel for Jamestown executed a case designation form whereby he certified "that to the best of my knowledge the within case is not related to any now pending or previously filed, except as noted above." No reference was noted to Jamestown II pending before Judge Corrigan.

On September 8, 1988, two days after summary judgment had been granted to MMR in the original cases, MMR moved to consolidate Jamestown III with Jamestown II before Judge Corrigan as a related case. Since notice of appeal had been filed in Jamestown II, Judge Corrigan deferred ruling on the motion to transfer until the appeal was decided. Judge McMonagle overruled that motion on May 19, 1989.

On April 25, 1989, Jamestown moved for appointment of a receiver during the pendency of the Jamestown III foreclosure action. Following briefing and a pretrial conference, over MMR's opposition, Judge McMonagle granted the motion, but the order appointing the receiver was not signed and journalized until March 5, 1990.

On August 22, 1989, Jamestown filed an action in the Rocky River Municipal Court, case No. 89-CVG-1213 (Jamestown IV), seeking forcible entry and detainer against MMR, which Judge Maureen A. Gravens found, in part, to "concern the same subject matter as previously raised by plaintiff" in Jamestown III, then pending before Judge McMonagle. Judge Gravens transferred the case to the common pleas court, by order dated November 9, 1989. Upon transfer, the case was assigned to common pleas Judge Patricia A. Cleary and designated case No. 180862.

Following this court's affirmance of summary judgment in Jamestown II, on February 7, 1990, MMR moved Judge Corrigan to consolidate Jamestown II with Jamestown III, pending before Judge McMonagle. Judge Corrigan denied the motion on July 10, 1990 and marked his order "Final." No Civ.R. 54(B) legend ("no just cause for delay") was journalized.

On April 23, 1990, MMR filed a motion to vacate order appointing receiver and to reassign Jamestown III to Judge Corrigan pursuant to C.P.Sup.R. 4. This was eventually overruled by Judge McMonagle on February 18, 1993.

On June 29, 1990, Jamestown filed a motion for summary judgment on its foreclosure action. The mortgagee Dollar Bank did the same on its cross-claim on September 10, 1990.

On August 21, 1990, MMR filed for a writ of prohibition in the Ohio Supreme Court contesting Judge McMonagle's jurisdiction to proceed with Jamestown III and claiming the issues were res judicata by reason of Jamestown's failure to include its foreclosure claims in the Jamestown II action. The Ohio Supreme Court dismissed the petition on October 10, 1990. A petition for writ of certiorari to the United States Supreme Court was denied on April 20, 1992.

On August 13, 1992, MMR filed a petition for further relief pursuant to R.C. 2721.09 in Jamestown II, seeking an order that Jamestown III was res judicata because of Jamestown's failure to include its foreclosure claim in the Jamestown II litigation. Following briefing and hearing, it was denied by Judge Corrigan on October 14, 1992.

From this order MMR has filed a timely appeal.

We will address MMR's assignments of error in the order asserted.

"I. The trial court erred in denying Market/Media's petition for further relief under R.C. 2721.09. (Jamestown I, case no. 143483, doc. 25; Jamestown II, case no. 149815, doc. 28)."

Of the thirty-three issues MMR has enumerated in these consolidated appeals for our consideration, fourteen are referenced to Assignment of Error I. MMR argues that in denying its petition for further relief under R.C. 2721.09, Judge Corrigan erred: (1) in refusing to hold that Jamestown III was res judicata by reason of the final judgment in Jamestown II; (2) by refusing to hold that he had exclusive jurisdiction to adjudicate the Jamestown III issues by reason of his jurisdiction over the original suits, Jamestown I and II, rendering Judge McMonagle's rulings void or a nullity; (3) by failing to find Jamestown in violation of his discovery order of May 26, 1988 and R.C. 2921.12 for concealing evidence and misleading the court on material issues; (4) by not finding Jamestown had acted with unclean hands and in bad faith by defrauding the court by not identifying Jamestown I and II as related cases when it filed its Jamestown III case designation form; and (5) by not awarding MMR its attorney fees, costs and expenses in the face of Jamestown's alleged misconduct.

The key issue is whether Jamestown III is res judicata because the claims asserted therein for delinquent maintenance fees against MMR, arising out of the condominium contract, existed prior to the filing of the declaratory judgment action in Jamestown I and II. MMR argues that Jamestown was bound to bring all the claims arising out of the contract in its original action or be forever barred from asserting them. It invokes the familiar rule of claim preclusion which holds that "an existing final judgment or decree between parties to...