Jim's Steak House, Inc. v. City of Cleveland
| Decision Date | 28 January 1998 |
| Docket Number | No. 96-1211,96-1211 |
| Citation | 81 Ohio St.3d 18,688 N.E.2d 506 |
| Parties | JIM'S STEAK HOUSE, INC. et al., Appellants, v. CITY OF CLEVELAND, Appellee. |
| Court | Ohio Supreme Court |
Appellant Jim's Steak House, Inc. ("Jim's") is a restaurant located near the Eagle Avenue lift bridge, along the Cuyahoga River in the Flats section of Cleveland. The bridge, the parties agree, provides convenient, but not exclusive, access to downtown Cleveland, across the river from Jim's. In May 1987, appellee, city of Cleveland ("the city"), unexpectedly closed the bridge for immediate repairs. The bridge did not reopen until December 1993.
As the bridge provided prime access from downtown, Jim's had a stake in its prompt repair. On July 22, 1988, Jim's filed a complaint against the city, alleging that the bridge closure interfered with its business. Upon the city's motion, the trial court dismissed the action pursuant to Civ.R. 12(B)(6), for failure to state a claim. Jim's appealed that ruling to the Eighth District Court of Appeals, which, on December 23, 1991, affirmed the trial court's dismissal, stating, "We fail to determine from the four corners of appellant's complaint, sufficient facts it alleged which constituted the elements of 'Negligence, Taking or Nuisance.' "
On February 3, 1992, Jim's filed another complaint (Jim's II) in the Cuyahoga Court of Common Pleas regarding the city's continued failure to open the bridge, alleging five theories of recovery: statutory negligence, common-law negligence, nuisance, pro tanto taking, and equitable injunction.
The city moved the court to dismiss Jim's II under Civ.R. 12(B)(6). In that motion, the city raised no argument as to the applicability of res judicata. The trial court denied the city's motion. On May 18, 1992, the city answered the complaint in Jim's II, raising, as one of its defenses, res judicata.
On April 20, 1994, Jim's filed an amended complaint, in which Raymond C. Rockey, owner of Jim's, individually asserted separate causes of action against the city. Rockey alleged that the extended closing of the bridge caused him a loss of salary, a loss on his investment, a loss of loans made to Jim's, and a loss of his future salary.
On May 27, 1994, after receiving three extensions of time to respond to the amended complaint, the city moved the court to dismiss the claims raised in the amended complaint by both Jim's and Rockey. The trial court denied the motion. Thereafter, the city never filed an answer to the amended complaint, and thus raised no affirmative defenses to the claims raised therein.
On November 21, 1994--the day trial was to begin--the city filed a motion to dismiss, raising for the first time after the filing of the amended complaint the affirmative defense of res judicata. The trial court denied the motion as untimely. The jury found for the plaintiffs, awarding Jim's $83,000 and Rockey $400,000 for lost rent, salary, and investment. The trial court denied the city's motion for judgment notwithstanding the verdict.
The city appealed, maintaining that the trial court erred in not finding for the city as a matter of law on res judicata grounds. The city argued that the dismissal of Jim's I pursuant to Civ.R. 12(B)(6) constituted an adjudication on the merits, precluding relitigation of all issues that were brought or could have been brought therein. The court of appeals agreed and vacated the trial court's judgment, finding that res judicata should have applied to bar the complaint in Jim's II as a matter of law.
The cause is before this court upon the allowance of a discretionary appeal.
Morganstern, MacAdams & DeVito Co., L.P.A., and Christopher M. DeVito, Cleveland; Wickens, Herzer & Panza, L.P.A., and Matthew W. Nakon, Lorain, for appellants.
Sharon Sobol Jordan, Cleveland Director of Law, and Charles E. Hannan, Jr., Assistant Director of Law, for appellee.
While res judicata was the bone of contention between the parties in the court of appeals, we instead find for Jim's for the reason that the city never filed an answer to Jim's amended complaint, and therefore waived its opportunity even to raise res judicata as an affirmative...
To continue reading
Request your trial
-
WBCMT 2007-C33 Office 7870, LLC v. Breakwater Equity Partners, LLC
...party." Hoover v. Sumlin , 12 Ohio St.3d 1, 6, 465 N.E.2d 377 (1984), modified on other grounds , Jim's Steak House, Inc. v. City of Cleveland , 81 Ohio St.3d 18, 688 N.E.2d 506 (1998). See Peterson v. Teodosio , 34 Ohio St.2d 161, 175, 297 N.E.2d 113 (1973) ("[W]here it is possible that th......
-
Landskroner v. Landskroner
...it failed to raise it as an affirmative defense in an answer as required by the Ohio Supreme Court in Jim's Steak House, Inc. v. Cleveland (1998), 81 Ohio St.3d 18, 688 N.E.2d 506. This decision, however, holds no precedential value as applied to this case because it is a plurality decision......
-
Janiszewski v. Belmont Career Ctr.
...Nationstar Mtge, L.L.C. v. Young, 9th Dist. No. 27499, 2015-Ohio-3868, 2015 WL 5579422, ¶ 5, citing Jim's Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18, 688 N.E.2d 506 (1998) (plurality) ("Affirmative defenses other that those listed in Civ.R. 12(B) are waived if not raised in the pleadi......
-
Stickovich v. City of Cleveland
...by Civ.R. 8(C). It is well established that unpleaded affirmative defenses are deemed to be waived. E.g., Jim's Steak House, Inc. v. Cleveland (1998), 81 Ohio St.3d 18, 688 N.E.2d 506. This court recently held that this precise defense was waived under these circumstances in Blount v. Digit......