Ullom v. Agoston
| Decision Date | 27 October 2022 |
| Docket Number | 110715 |
| Citation | 199 N.E.3d 693 |
| Parties | Deena ULLOM, et al., Plaintiffs-Appellants, v. Edward AGOSTON, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Lipson O'Shea Legal Group, and Michael J. O'Shea, Cleveland, for appellants.
The Carr Law Office, L.L.C., Adam E. Carr, Hudson, and Eric K. Grinnell, Middleburg Heights, for appellees.
JOURNAL ENTRY AND OPINION
ON RECONSIDERATION1
{¶ 1} Upon review, this court sua sponte reconsiders its decision in this case. After reconsideration, the opinion as announced by this court on March 10, 2022, Ullom v. Agoston , 8th Dist. Cuyahoga No. 110715, 2022-Ohio-696, is hereby vacated and substituted with this opinion.
{¶ 2} Plaintiffs-appellants, Deena Ullom and Thomas Ullom (collectively "appellants"), appeal from the trial court's July 15, 2021 judgment that granted the motion for judgment on the pleadings of defendants-appellees, Edward Agoston and Sharon Agoston (collectively "appellees"). After review of the facts and law, we affirm.
{¶ 3} This case arises out of appellees’ 2017 sale of a Brecksville, Ohio home to appellants. A residential property disclosure form was incorporated into the parties’ purchase agreement. Pursuant to the disclosure form, appellees were required to disclose to appellants certain categories of defects on the premises.
{¶ 4} In January 2019, appellants initiated an action against appellees, alleging breach of contract and negligent misrepresentation. Specifically, appellants alleged that the foundation and support systems of the home were faulty and that such condition and the failure of appellees to disclose this condition to appellants breached the parties’ purchase agreement. See Ullom v. Agoston , Cuyahoga C.P. No. CV-19-909957.
{¶ 5} Prior to appellees filing an answer, appellants filed a first amended complaint, adding Erie Insurance Company ("Erie"), which was appellants’ homeowner insurer. Appellants asserted a bad-faith claim against the insurance company.
{¶ 6} Erie answered appellants’ first amended complaint denying liability, counterclaimed against appellants and cross-claimed against appellees. Appellees answered both appellants’ first amended complaint and Erie's cross-claim.
{¶ 7} In May 2019, Allstate Insurance Company ("Allstate"), appellees’ homeowners’ insurer, intervened in the action, seeking a judicial declaration that it did not owe a duty to provide liability coverage to appellees or to pay for their defense.
{¶ 8} In July 2019, appellees filed a motion for judgment on the pleadings, both as to appellants’ first amended complaint and as to Erie's cross-claim. Further, Allstate filed a motion for judgment on the pleadings on its request for declaratory relief.
{¶ 9} On September 11, 2019, the trial court granted both appellees and Allstate's motions for judgment on the pleadings. Pursuant to the court's judgment, Allstate was dismissed from the action and Erie's cross-claim against appellees was dismissed. The judgment specifically noted that appellants’ claims against Erie, and Erie's counterclaim against appellants, remained pending. Appellants appealed to this court; the appeal was dismissed for lack of a final appealable order. See Ullom v. Agoston , 8th Dist. Cuyahoga No. 109102, Motion No. 532759 (Oct. 16, 2019).
{¶ 10} In November 2019, appellants filed a motion for leave to file a second amended complaint, seeking to bring appellees back into the case. The trial court denied the motion.
{¶ 11} In July 2020, "counsel advised the court that the case [was] settled." The trial court advised "counsel to file a consent judgment entry, notice, or stipulation of dismissal by 08/06/2020." The trial court further stated that "failure to comply with this order will result in dismissal, sua sponte, of all claims without further notice to the parties, with costs to be assigned by the court."
{¶ 12} On August 7, 2020, appellants filed a Civ.R. 41(A) notice of voluntary dismissal, dismissing the action without prejudice.
{¶ 13} On August 14, 2020, the trial court filed an entry stating that
{¶ 14} That same day, August 14, appellants filed "a motion for reconsideration and/or motion to vacate order of August 14, 2020." In their motion, the appellants stated that Appellants stated that they "filed a Rule 41(A) voluntary dismissal of the remaining defendant (Erie Insurance) on August 7, 2020 — thus terminating this case."
{¶ 15} On August 27, 2020, relying on appellants’ representations in their motion, the trial court granted the appellants’ motion for reconsideration and/or to vacate its August 14, 2020 judgment, and noted that the case was dismissed without prejudice pursuant to appellants’ August 7, 2020 voluntary dismissal. No appeal was taken by appellants from that final judgment.
{¶ 16} In November 2020, appellants filed this action against appellees, alleging breach of contract, fraudulent misrepresentation, and fraudulent concealment; all claims arose from the 2017 sale of the same home that was the subject of the first lawsuit.
{¶ 17} In February 2021, appellants filed a first amended complaint. The amended complaint provided additional information about appellees’ alleged fraud. Appellees answered the first amended complaint and asserted affirmative defenses including res judicata, collateral estoppel, and law of the case.
{¶ 18} In March 2021, appellees filed a motion for judgment on the pleadings. On July 15, 2021, in an 11-page entry, the trial court granted the motion for judgment on the pleadings on the ground of res judicata. The trial court noted that when appellants filed their August 7, 2020 voluntary dismissal in the first case, the remaining defendant was Erie, and that appellants failed to appeal from the final judgment in the first case. Appellants now appeal and raise a sole assignment of error for our review:
Once the entirety of the First Case was dismissed without prejudice pursuant to Ohio Civ.R. 41(A) all prior interlocutory orders and rulings of the trial court were nullified and of no further force and effect, and thus res judicata does not apply to any re-filed complaint.
{¶ 19} We review a trial court's determination regarding a motion for judgment on the pleadings de novo. Schmitt v. Edn. Serv. Ctr. , 8th Dist. Cuyahoga No. 97623, 2012-Ohio-2210, 2012 WL 2819401, ¶ 8, citing State ex rel. Midwest Pride IV, Inc. v. Pontious , 75 Ohio St. 3d 565, 569, 664 N.E.2d 931 (1996).
{¶ 20} A Civ.R. 12(C) motion for judgment on the pleadings presents only questions of law. Shingler v. Provider Servs. Holdings, L.L.C. , 8th Dist. Cuyahoga No. 106683, 2018-Ohio-2740, 2018 WL 3414268, ¶ 17, citing Whaley v. Franklin County Bd. of Commrs. , 92 Ohio St.3d 574, 581-582, 752 N.E.2d 267 (2001). Dismissal of a complaint is appropriate under Civ.R. 12(C) when, after construing all material allegations in the pleadings, along with all reasonable inferences drawn therefrom in favor of the plaintiff, the court finds that the plaintiff can prove no set of facts in support of his or her claim that would entitle the plaintiff to relief. Pontious at 570, 664 N.E.2d 931 ; Socha v. Weiss , 2017-Ohio-7610, 97 N.E.3d 818, ¶ 9 (8th Dist.).
{¶ 21} Appellees’ motion for judgment on the pleadings asserted: (1) appellants failed to plead a factual basis for survival of their claims; (2) Ohio does not permit claims for negligent failure to disclose defects in real estate; (3) appellants failed to allege fraud with particularity; and (4) the doctrine of res judicata barred the action. The trial court granted the motion pursuant to the doctrine of res judicata. That doctrine is dispositive of this appeal.
{¶ 23} The court answered "in the affirmative." Id. The court reasoned that Id. at 580, 635 N.E.2d 14. On the authority of Indus. Risk Insurers , we find that the trial court was permitted to take judicial notice of its own docket. Therefore, we now consider the trial court's judgment granting the appellees’ motion for judgment on the pleadings on the basis of res judicata.
{¶ 24} The doctrine of res judicata provides that "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. , 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995). "[T]he doctrine of res judicata requires a final order of the court to preclude relitigation of issues that have or could have been raised in a prior proceeding." Deutsche Bank Natl. Co. v. Caldwell , 8th Dist. Cuyahoga No. 100594, 2014-Ohio-2982, 2014 WL 3032550, ¶ 19.
{¶ 25} In considering...
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