[Cite as Ross Cty. Bd. of Commrs. v. Roop, 2013-Ohio-5926.]


                          IN THE COURT OF APPEALS OF OHIO
                             FOURTH APPELLATE DISTRICT
                                   ROSS COUNTY

BOARD OF COUNTY                :
COMMISSIONERS,                 :
                               :
     Plaintiff-Appellant,      : Case No. 13CA3369
                               :
     vs.                       :
                               : DECISION AND JUDGMENT
LEONARD M. ROOP, et al.,       : ENTRY
                               :
     Defendants-Appellees.     : Released: 08/21/13
_____________________________________________________________
                           APPEARANCES:

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Judith Heimerl
Brown, Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellant.

Leo J. Hall, Margulis, Gussler and Hall, Ashville, Ohio, for Appellees.
_____________________________________________________________

McFarland, P.J.

        {¶1} This is an appeal from a judgment by the Ross County Court of

Common Pleas granting summary judgment in favor of Appellees, Leonard

M. Roop, et al., and denying Appellant, Ross County Board of

Commissioners, an injunction requiring Appellees to remove a non-

residential structure located in the Indian Creek Floodway, the construction

of which Appellant claims violates a previously recorded deed of open

space. On appeal, Appellants contend that the trial court erred in ruling the

instant cause of action is barred by res judicata, claim preclusion. However,
Ross App. No. 13CA3369                                                           2


we conclude that our prior decision issued in Board of Commissioners of

Ross County v. Leonard M. Roop, et al., 4th Dist. No. 10CA3161, 2011-

Ohio-1748, (hereinafter referred to as “Roop II”), constituted a valid, final

judgment rendered upon the merits that bars the present claim, which in our

view is based upon the same transaction or occurrence that was the subject

matter as the prior action. Appellant’s sole assignment of error is therefore

overruled. Accordingly, the decision of the trial court is affirmed.

                                   FACTS

      {¶2} We note the following facts from our review of this record, and

also in part from our previous decision in Roop II. In April 1991, the Ross

County Board of Commissioners enacted Resolution No. 91-114 which

provided regulations for flood hazard areas, for participation in the National

Flood Insurance Program, pursuant to R.C. 307.37 and 307.85. In October

1992, Resolution No. 91-114 was amended by Resolution No. 92-152,

which extended the identified flood hazard area to include the Indian Creek

area, where Appellees’ property is located. These resolutions essentially

imposed rules and regulations regarding construction in the flood hazard

areas, and also required that development permits be obtained prior to the

start of construction.
Ross App. No. 13CA3369                                                                                     3


         {¶3} Subsequently, on December 8, 1995, a deed of open space was

executed by Ross County and was recorded in Volume 7, Page 569 of the

Ross County Official Records. The deed contained development rights and

restrictions, including a provision that no new structures or improvements

shall be erected on the premises. Appellees’ property is located on the

premises covered by the deed of open space.

         {¶4} On January 3, 2002, after driving by Appellees’ property and

noticing the construction of a new building, the Ross County Flood Plain

Administrator sent Appellees a letter informing them that the building being

constructed was located in the Indian Creek Floodway and that construction

in the area was prohibited under Resolution No. 91-114. The letter

instructed Appellees to stop construction immediately, and also advised of

the right to request a variance.1

         {¶5} On January 30, 2002, Appellant, Ross County Board of

Commissioners filed a complaint against Appellees, which we will refer to

as case no. 02CI44. The complaint sought a preliminary and permanent

injunction for the removal of Appellees’ non-residential personal use

building, pursuant to R.C. 307.37, 307.40 and Civ.R. 65, claiming the



1
 The ultimate denial of Appellees’ request for a variance was the subject of a previous appeal to this Court,
wherein we upheld the denial of Appellees’ variance request. Roop v. The Floodplain Regulations
Variance Bd. of Ross County, 4th Dist. No. 03CA2707, 2003-Ohio-5522 (“Roop I”).
Ross App. No. 13CA3369                                                          4


construction of the building was in violation of floodplain regulations and

the public would suffer irreparable harm if the violation was not abated.

      {¶6} On August 4, 2004, Appellees filed a motion for summary

judgment, which was subsequently denied. The matter finally proceeded to

a bench trial on March 25, 2009. After hearing the evidence presented at

trial, the magistrate issued a decision on May 28, 2009, indicating that the

floodplain regulations at issue were properly enacted under R.C. 307.37 and

307.85 and that Appellees’ construction of their nonresidential structure was

in violation of those regulations. The magistrate ruled that the construction

would cause irreparable harm if allowed to remain and granted Appellant a

permanent injunction ordering Appellees to remove their nonresidential

structure.

      {¶7} Four months after the issuance of the magistrate’s decision, but

prior to the trial court’s issuance of a final order, Appellant filed another

complaint on September 16, 2009, seeking an injunction based upon its

claim that Appellees’ building was constructed in violation of the open space

deed recorded in 1995. We will refer to this second case, from which the

present appeal stems, as case no. 09CI631. The trial court issued a final

order in case no. 02CI44 adopting the magistrate’s decision and granting
Ross App. No. 13CA3369                                                         5


Appellant an injunction, thereby ordering Appellees to remove their

building.

      {¶8} Appellees sought review in this Court of the permanent

injunction ordered by the trial court requiring them to remove their non-

residential personal use building. As a result of that appeal, we determined

that R.C. 307.37 provided for injunctive relief only with regard to residential

structures. Because Appellees’ building was non-residential, we reversed the

trial court’s imposition of injunctive relief. This decision was released on

April 6, 2011. Roop II.

      {¶9} Thereafter, Appellant filed a motion for summary judgment in

case no. 09CI631, which was still pending in the trial court. The motion was

opposed by Appellees, who filed their own motion for summary judgment

on August 15, 2011. Appellees’ motion argued that the case was barred by

the final judgment entered in case no. 02CI44 (Roop II), and that Appellant

was simply attempting to get a different result by setting forth a different

claim for recovery that it had chosen not to advance previously. A final

decision in case no. 09CI631 was issued on January 18, 2013. The decision

granted summary judgment in favor of Appellees based upon the doctrine of

res judicata, claim preclusion, and dismissed Appellant’s complaint. It is
Ross App. No. 13CA3369                                                            6


from this decision and entry that Appellant now brings its timely appeal,

setting forth a single assignment of error for our review.

                         ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT ERRED IN RULING THE INSTANT
      ACTION IS BARRED BY RES JUDICATA, CLAIM
      PRECLUSION.”

                             LEGAL ANALYSIS

      {¶11} In its sole assignment of error, Appellant contends that the trial

court erred in ruling the instant action is barred by res judicata, claim

preclusion. As indicated above, the trial court granted summary judgment in

favor of Appellees based upon the doctrine of res judicata. Thus, we begin

our analysis by considering our standard of review with respect to the grant

or denial of a motion for summary judgment.

      {¶12} When reviewing a trial court's decision on a motion for

summary judgment, we conduct a de novo review governed by the standard

set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,

833 N.E.2d 712, ¶ 8. Summary judgment is appropriate when the movant

has established: 1.) there is no genuine issue of material fact; 2.) reasonable

minds can come to but one conclusion, and that conclusion is adverse to the

nonmoving party, with the evidence against that party being construed most

strongly in its favor; and 3.) the moving party is entitled to judgment as a
Ross App. No. 13CA3369                                                             7


matter of law. Bostic v. Connor, 37 Ohio St.3d 144, 146, 524 N.E .2d 881

(1988), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66,

375 N.E.2d 46 (1978) (per curiam). See Civ.R. 56(C).

      {¶13} The burden of showing that no genuine issue of material fact

exists falls upon the party who moves for summary judgment. Dresher v.

Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). To meet its burden,

the moving party must specifically refer to “the pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action,”

that affirmatively demonstrate the non-moving party has no evidence to

support the non-moving party's claims. Civ.R. 56(C). See Hansen v. Wal-

Mart Stores, Inc., 4th Dist. No. 07CA2990, 2008-Ohio-2477, ¶ 8. Once the

movant supports the motion with appropriate evidentiary materials, the non-

moving party “may not rest upon the mere allegations or denials of the

party's pleadings, but the party's response, by affidavit or as otherwise

provided in [Civ.R. 56], must set forth specific facts showing that there is a

genuine issue for trial.” Civ.R. 56(E). “If the party does not so respond,

summary judgment, if appropriate, shall be entered against the party.” Id.

      {¶14} As mentioned above, the trial court granted summary judgment

in favor of Appellees based upon the doctrine of res judicata. According to
Ross App. No. 13CA3369                                                            8


the doctrine of res judicata, “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).

This Court recently noted in Cruse v. Finley, 4th Dist. No. 12CA2, 2012-

Ohio-5465, ¶ 12 that

      “ ‘The party asserting res judicata must show the following four

      elements: (1) there was a prior valid judgment on the merits; (2)

      the second action involved the same parties as the first action;

      (3) the present action raises claims that were or could have been

      litigated in the prior action; and (4) both actions arise out of the

      same transaction or occurrence. PNC Bank v. Richards, 10th

      Dist. No. 11 AP-275, 2012-Ohio-1610, ¶ 10, quoting Reasoner

      v. Columbus, 10th Dist. No. 04AP-800, 2005-Ohio-468, ¶ 5.”

      {¶15} The doctrine of res judicata involves both claim preclusion

(also known as estoppel by judgment) and issue preclusion (traditionally

known as collateral estoppel). Grava v. Parkman Twp. at 380. Both theories

of res judicata are used to prevent relitigation of issues already decided by a

court on matters that should have been brought as part of a previous action.

Lasko v. Gen. Motors Corp., 11th Dist. No.2002-T-0143, 2003-Ohio-4103;
Ross App. No. 13CA3369                                                          9


Dickess v. Stephens, 4th Dist. No. 12CA8, 2013-Ohio-1317, ¶ 23. The

applicability of res judicata is a question of law that is subject to de novo

review. Altof v. State, 4th Dist. No. 04CA16, 2006-Ohio-502, ¶ 13; Dickess v.

Stephens, ¶ 22.

      {¶16} Here, at the summary judgment phase and currently on appeal,

Appellant essentially limits its argument to the fourth element of the res

judicata analysis, contending that the actions set forth in case nos. 02CI44

and 09CI631 did not arise out of the same transaction or occurrence. Thus,

our task is to determine if genuine issues of material fact exist about whether

Appellant Board’s complaints filed in case nos. 02CI44 (Roop II) and

09CI631 arose out of the same transaction or occurrence. The trial court

held that each complaint arose from the same transaction or occurrence, i.e.

“the construction by defendants Roop of the structure that was issue in both

cases[,]” which was a non-residential personal use building constructed in

the Indian Creek Floodway. Based upon the following, we agree with the

trial court’s determination.

      {¶17} For purposes of a res judicata analysis, a “transaction” is

defined as a “common nucleus of operative facts.” Grava at 382, quoting 1

Restatement of the Law 2d, Judgments (1982) 198-199, Section 24,
Ross App. No. 13CA3369                                                         10


Comment b. As the First District explained in Geiger v. Westfield Natl. Ins.

Co., 1st Dist. No. C-080355, 2008-Ohio-6904, ¶ 7:

      Although it pre-dates Grava, the Ohio Supreme Court case of

      Norwood v. McDonald [ (1943), 142 Ohio St. 299, 52 N.E.2d

      67, reversed on other grounds in Grava,] is helpful in

      determining what a “common nucleus of operative facts” is.

      The Norwood court found that, to determine whether a second

      action is barred by a first, a court should consider the facts

      essential to the maintenance of each cause of action. If the same

      facts or evidence would sustain both, then the second action is

      barred by res judicata. If, however, the two cases rely upon

      different facts, a judgment in one case is no bar to the

      maintenance of the other. “Different facts” do not include

      “different shadings of the facts” or an emphasis “of different

      elements of the facts.” (Footnotes omitted .)

      {¶18} In Grava, a property owner sought approval of an application

for a zoning certificate for construction of a building, which was denied by

the Parkman Township Zoning Inspector based upon Section 404.4 of the

zoning ordinance, which required industrially zoned property to have a

minimum of five acres. Grava at 379. Grava then appealed to the Parkman
Ross App. No. 13CA3369                                                            11


Township Board of Zoning, seeking a variance from the zoning ordinance,

which was also denied. Id. A year later, Grava submitted another

application for a zoning certificate to the zoning inspector, claiming he was

entitled to construct the building pursuant to Section 906.0 of the zoning

ordinance. Id. This application was also denied. Id.

       {¶19} Grava appealed again to the Parkman Township Board of

Zoning, which denied his appeal, reasoning that his second application was

barred by the doctrine of res judicata. Id. at 380. On appeal to the Supreme

Court, the Court affirmed the denial of the application for the zoning

certificate, holding it was barred by the doctrine of res judicata. Id. at 383.

The Court determined that Grava’s second application arose from the

nucleus of facts that was the subject matter of his first application, which

involved his attempt “to construct exactly the same building on the same

tract of land[.]” Id. The Court stated that “the only difference between the

two applications is the theory of substantive law under which Grava sought

relief.” Id.

       {¶20} We believe the reasoning of Grava to be directly on point to the

facts presently before us, with the exception that here, Appellant Board is in

the position of Grava, attempting to obtain a legal remedy it was denied

based upon one legal theory, by trying to assert a new claim in a second
Ross App. No. 13CA3369                                                      12


action, based upon a different legal theory. Though lengthy, we find it very

helpful to consider the reasoning employed by the Grava court in reaching

its holding, and thus we include it verbatim:

             In recent years, this court has not limited the application

      of the doctrine of res judicata to bar only those subsequent

      actions involving the same legal theory of recovery as a

      previous action. In Natl. Amusements, Inc. v. Springdale

      (1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178, 1180, we

      stated: “It has long been the law of Ohio that ‘an existing final

      judgment or decree between the parties to litigation is

      conclusive as to all claims which were or might have been

      litigated in a first lawsuit’ ” (emphasis sic ) (quoting Rogers v.

      Whitehall [1986], 25 Ohio St.3d 67, 69, 25 OBR 89, 90, 494

      N.E.2d 1387, 1388). We also declared that “[t]he doctrine of res

      judicata requires a plaintiff to present every ground for relief in

      the first action, or be forever barred from asserting it.” Id.

             Today, we expressly adhere to the modern application of

      the doctrine of res judicata, as stated in 1 Restatement of the

      Law 2d, Judgments (1982), Sections 24-25, and hold that a

      valid, final judgment rendered upon the merits bars all
Ross App. No. 13CA3369                                                      13


      subsequent actions based upon any claim arising out of the

      transaction or occurrence that was the subject matter of the

      previous action. Therefore, we overrule the second paragraph of

      the syllabus in Norwood, supra, and overrule the second

      paragraph of the syllabus in Whitehead, supra, to the extent it is

      inconsistent with today's holding.

            Section 24(1) of the Restatement of Judgments, supra, at

      196, provides: “When a valid and final judgment rendered in an

      action extinguishes the plaintiff's claim pursuant to the rules of

      merger or bar * * *, the claim extinguished includes all rights of

      the plaintiff to remedies against the defendant with respect to all

      or any part of the transaction, or series of connected

      transactions, out of which the action arose.” See, also, 46

      American Jurisprudence 2d, supra, at Sections 516 and 533.

      Comment b to Section 24 of the Restatement of Judgments,

      supra, at 198-199, defines a “transaction” as a “common

      nucleus of operative facts.” Comment c to Section 24, at 200,

      plainly states: “That a number of different legal theories casting

      liability on an actor may apply to a given episode does not

      create multiple transactions and hence multiple claims. This
Ross App. No. 13CA3369                                                    14


      remains true although the several legal theories depend on

      different shadings of the facts, or would emphasize different

      elements of the facts, or would call for different measures of

      liability or different kinds of relief.”

             Section 25 of the Restatement of Judgments, supra, at

      209, further explains: “The rule of § 24 applies to extinguish a

      claim by the plaintiff against the defendant even though the

      plaintiff is prepared in the second action (1) To present

      evidence or grounds or theories of the case not presented in the

      first action, or (2) To seek remedies or forms of relief not

      demanded in the first action.” (Emphasis added.) See, also, 46

      American Jurisprudence 2d, supra, at Sections 535 and 537.

      The rationale for such a rule is aptly stated in Comment a to

      Section 24 of the Restatement of Judgments, supra, at 196-197:

      “[I]n the days when civil procedure still bore the imprint of the

      forms of action and the division between law and equity, the

      courts were prone to associate claim with a single theory of

      recovery, so that, with respect to one transaction, a plaintiff

      might have as many claims as there were theories of the

      substantive law upon which he could seek relief against the
Ross App. No. 13CA3369                                                                                   15


         defendant. Thus, defeated in an action based on one theory, the

         plaintiff might be able to maintain another action based on a

         different theory, even though both actions were grounded upon

         the defendant's identical act or connected acts forming a single

         life-situation. * * * The present trend is to see claim in factual

         terms and to make it coterminous with the transaction

         regardless of the number of substantive theories, or variant

         forms of relief flowing from those theories, that may be

         available to the plaintiff * * *; regardless of the variations in the

         evidence needed to support the theories or rights.” (Emphasis

         added.) Grava at 382-383.2

         {¶21} Based upon the reasoning of Grava, as well as the principles set

forth in the Restatement of Judgments relied upon by the Grava court, we

conclude that the cause of action brought by Appellant in case no. 09CI631

was based upon the same transaction or occurrence as was the cause of

action brought by Appellant in case no. 02CI44, i.e. Appellees’ construction

of a non-residential personal use building in the Indian Creek Floodway. In

reaching this determination, we believe the correct application of the


2
  Grava specifically overruled paragraph two of the syllabus of Norwood, which set forth a more narrow
view of res judicata that “[a] judgment or decree in a former action does not bar a subsequent action where
the causes of action are not the same, even though each action relates to the same subject matter.” Grava at
syllabus.
Ross App. No. 13CA3369                                                          16


doctrine of res judicata, as set forth both in Grava and the Restatement

requires us to focus our attention on Appellees’ “act or connected acts

forming a single life- situation[,]” i.e. Appellees’ act of constructing a

building in a flood zone, in violation of valid and existing floodplain

regulations, and allegedly in violation of a previously recorded deed of open

space, the latter issue having not been determined on the merits by the trial

court as the action was dismissed based upon the doctrine of res judicata.

      {¶22} Although a cause of action based upon the purported deed of

open space existed at the time Appellant’s first complaint was filed,

Appellant, for whatever reason, chose not to pursue that cause of action. It

is clear from the record that Appellant was aware of this potential claim at

the time the first action was litigated and thus that claim should have been

brought at that time. Because this Court rendered a valid, final judgment

upon the merits in Roop II , with respect to case no. 02CI44, the claim

brought in case no. 09CI631, which arose out of the transaction or

occurrence that was the subject matter Roop II, is barred.

      {¶23} In reaching our decision, we are mindful of Appellant’s

argument that upholding the dismissal of their claim would work an

injustice. However, based upon facts very similar to the facts presently

before us, the Grava court reasoned that the refusal to allow the use of an
Ross App. No. 13CA3369                                                       17


alternate legal theory overlooked in the previous proceedings did not work

an injustice. Grava at 383. Further, the Grava court reasoned that “[t]he

instability that would follow the establishment of a precedent for

disregarding the doctrine of res judicata for ‘equitable’ reasons would be

greater than the benefit that might result from relieving some cases of

individual hardship.” Id. at 384.

      {¶24} Thus, even when construing the evidence in Appellant’s favor,

no genuine issue of fact remains. Based upon the foregoing, we agree that

Appellees are entitled to judgment as a matter of law. Therefore, we

conclude that the trial court correctly granted summary judgment in favor of

Appellees. Accordingly, the decision of the trial court is affirmed.

                                             JUDGMENT AFFIRMED.
Ross App. No. 13CA3369                                                        18


                           JUDGMENT ENTRY


     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellees recover of Appellant costs herein.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Concurs in Judgment Only.


                                       For the Court,

                                       BY: _________________________
                                           Matthew W. McFarland
                                           Presiding Judge




                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
