The opinion
[Cite as Crick Constr. Co., LLC v. McGarvey Heating, Inc., 2011-Ohio-1035.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
CRICK CONSTRUCTION CO., LLC : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellant : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2010-CA-00229
MCGARVEY HEATING, INC. :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2010B02033
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 7, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ROBERT J. ROHRBAUGH, II. PATRICK CUSMA
4800 Market Street, Ste. A Courtyard Centre
Boardman, OH 44512 116 Cleveland Ave. N.W., Ste. 700
Canton, OH 44702
[Cite as Crick Constr. Co., LLC v. McGarvey Heating, Inc., 2011-Ohio-1035.]
Gwin, P.J.
{¶1} Plaintiff-appellant Crick Construction Company, LLC appeals a judgment
of the Court of Common Pleas of Stark County, Ohio, which sustained the motion to
dismiss filed by defendant-appellee McGarvey Heating, Inc. Appellant assigns a single
error to the trial court:
{¶2} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
SUSTAINING APPELLEE’S MOTION TO DISMISS.”
{¶3} The record indicates in 2008, appellee filed an action to foreclose on his
mechanics’ lien against Elcee Angels, Inc. and Consumers National Bank in Stark
County Common Pleas Case No. 2008-CV-04608. Consumers’ National Bank is not a
party to this appeal. Appellant filed a counterclaim against appellee. Consumers
National Bank did not file an answer, and the court entered a default judgment against
the bank. The court dismissed appellant’s action against appellee and appellee’s action
against appellant, both without prejudice. The trial court subsequently granted the bank
relief from judgment, and the court re-opened the matter. Ultimately, the trial court
found appellee’s lien had priority over any lien claimed by the bank, but did not rule on
the issues between appellant and appellee. On September 23, 2009, the court
dismissed the complaint and counterclaim of appellee and appellant without prejudice.
{¶4} On April 30, 2010 appellant filed an application for approval of a cash
deposit discharging the mechanics’ lien in Case No. 2008CV04608. The court
overruled the motion for application of the cash bond. Thereafter, on May 26, 2010,
appellant filed a complaint for breach of contract against appellee, Case No. 2010
Stark County, Case No. 2010-CA-00229 3
CVC02033. The parties agree this was essentially a re-filing of the counterclaim,
raised, but never adjudicated, in the 2008 case.
{¶5} It appears there was some confusion in common pleas court. The matter
was originally assigned to Judge Charles E. Brown, Jr. On June 3, 2010, the
Administrative Judge transferred the matter to Judge Lee Sinclair, the judge who
presided over the 2008 case. The Administrative Judge found the case was a re-filing
of Case No. 2008CV04608. However, on June 8, 2010, the Administrative Judge
entered another judgment, finding the case was inadvertently transferred from Judge
Brown to Judge Sinclair as a re-filing of Case No. 2008CV04608. The Administrative
Judge transferred the matter back to Judge Brown.
{¶6} On July 20, 2010, the trial court granted appellee’s motion to dismiss the
complaint finding the matter should be litigated in Case No. 2008CV04608.
{¶7} Appellee suggests appellant had an opportunity to fully and fairly litigate
the issue, and thus appellant cannot raise the same issues in this new proceeding.
Appellee suggests the matter is res judicata, but we find the issues between these two
parties have never been decided with a final judgment or decree. Accordingly, the
matter is not res judicata. See State ex rel. Dillard Department Store v. Ryan, 122 Ohio
St.3d 241, 2009 -Ohio- 2683, 910 N.E.2d 438. In Ryan, the Court found res judicata and
the two-dismissal rule did not apply where there was no administrative or judicial
determination or final judgment, and the plaintiff voluntarily dismissed her complaint a
second time because she believed the matter was settled.
{¶8} Appellee cites us to no authority for dismissal in a case where a
counterclaim is re-filed as a complaint. The matter was clearly filed within the one year
Stark County, Case No. 2010-CA-00229 4
saving statute, R.C. 2305.19, and this court knows of no way for appellant to revive his
action other than by filing a complaint.
{¶9} We find the trial court erred in dismissing the matter as filed under the
wrong case number. We find regardless of whether appellant’s claims against appellee
are made as a counterclaim, or as a complaint, appellant may pursue his claims
because there is no prior final order adjudicating the matter .
{¶10} The assignment of error is sustained.
{¶11} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is reversed, and the cause is remanded to the court for further
proceedings in accord with law and consistent with this opinion.
By Gwin, P.J.,
Farmer, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JOHN W. WISE
WSG:clw 0218
[Cite as Crick Constr. Co., LLC v. McGarvey Heating, Inc., 2011-Ohio-1035.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CRICK CONSTRUCTION CO., LLC :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
MCGARVEY HEATING, INC. :
:
:
Defendant-Appellee : CASE NO. 2010-CA-00229
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Stark County, Ohio, is reversed, and the cause is
remanded to the court for further proceedings in accord with law and consistent with this
opinion. Costs to appellee.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JOHN W. WISE