[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Armatas v. Plain Twp. Bd. of Zoning Appeals, Slip Opinion No. 2020-Ohio-2973.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2020-OHIO-2973
 THE STATE EX REL. ARMATAS, APPELLANT, v. PLAIN TOWNSHIP BOARD OF
                         ZONING APPEALS ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Armatas v. Plain Twp. Bd. of Zoning Appeals, Slip
                             Opinion No. 2020-Ohio-2973.]
Mandamus—Property owner’s claim against township zoning inspector barred by
        res judicata—Relief sought against board of zoning appeals contingent on
        claim against inspector—Court of appeals’ grant of summary judgment in
        favor of inspector and board affirmed.
      (No. 2019-1237—Submitted March 10, 2020—Decided May 19, 2020.)
                 APPEAL from the Court of Appeals for Stark County,
                          No. 2019CA00001, 2019-Ohio-3258.
                                   __________________
        Per Curiam.
                              SUPREME COURT OF OHIO




        {¶ 1} Appellant, Steven A. Armatas, appeals the judgment of the Fifth
District Court of Appeals, which held that Armatas’s complaint for a writ of
mandamus is barred by the doctrine of res judicata. We affirm.
                                     Background
        {¶ 2} In September 2016, Armatas went to the office of appellee Plain
Township zoning inspector Thomas Ferrara to complain about a neighbor’s trees.
Armatas claimed that the trees, which were 20 feet tall, violated a township zoning
provision prohibiting hedges higher than 8 feet. Ferrara told Armatas that the trees
did not violate the zoning code because they did not constitute a hedge.
        {¶ 3} In October 2016, Armatas filed a mandamus action in the Fifth District
seeking to compel Ferrara and the Plain Township Board of Trustees to enforce the
zoning provision against his neighbor. The Fifth District dismissed the complaint
because Armatas had an adequate remedy at law—he could have appealed Ferrara’s
decision to appellee Plain Township Board of Zoning Appeals. State ex rel. Armatas
v. Plain Twp. Bd. of Trustees, 5th Dist. Stark No. 2016CA00188, 2017-Ohio-2645.
Armatas appealed the Fifth District’s judgment to this court, but we dismissed the
appeal after Armatas failed to file a merit brief. 150 Ohio St.3d 1418, 2017-Ohio-
7303, 80 N.E.3d 509.
        {¶ 4} In October 2018, Armatas attempted to appeal Ferrara’s September
2016 decision to the board of zoning appeals. The board, however, dismissed the
appeal as untimely.      See Plain Township Zoning Resolution Section 1201.8
(requiring that appeals to the board of zoning appeals be filed within 20 days of the
decision being appealed).
        {¶ 5} In January 2019, Armatas filed a second mandamus action in the Fifth
District, seeking to compel Ferrara to issue his September 2016 decision in writing.
Armatas alleged that Ferrara has a clear legal duty to issue a written decision and that
the time period to appeal the decision will not begin until a written decision is issued.




                                           2
                                 January Term, 2020




Armatas’s complaint also seeks an order compelling the board of zoning appeals to
hear an appeal of Ferrara’s written decision and then to issue its own written decision.
        {¶ 6} The Fifth District granted summary judgment in favor of Ferrara and
the board of zoning appeals. The court held that res judicata bars the claim against
Ferrara because Armatas could have asserted that claim in his 2016 mandamus
action, and it held that the claim against the board was moot because the relief sought
from the board is contingent on the claim against Ferrara. 2019-Ohio-3258, ¶ 12-13.
        {¶ 7} Armatas appealed to this court as of right.
                                       Analysis
        {¶ 8} When reviewing a decision granting summary judgment, we apply a de
novo standard of review. Esber Beverage Co. v. Labatt USA Operating Co., L.L.C.,
138 Ohio St.3d 71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9. Summary judgment is
appropriate when


        (1) [n]o genuine issue as to any material fact remains to be litigated;
        (2) the moving party is entitled to judgment as a matter of law; and
        (3) it appears from the evidence that reasonable minds can come to
        but one conclusion, and viewing such evidence most strongly in favor
        of the party against whom the motion for summary judgment is made,
        that conclusion is adverse to that party.


Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing
Civ.R. 56(C).
        {¶ 9} The undisputed material facts show that Armatas’s claim against
Ferrara is barred by res judicata. Res judicata bars a second action when (1) a court
of competent jurisdiction rendered a valid, final judgment on the merits in an earlier
action, (2) the second action involves the same parties or their privies, (3) the second
action raises claims that were or could have been litigated in the first action, and (4)




                                           3
                               SUPREME COURT OF OHIO




the second action arises out of the same transaction or occurrence that was the subject
of the first action. Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-
Ohio-954, 846 N.E.2d 478, ¶ 84. “The doctrine of res judicata requires a plaintiff to
present every ground for relief in the first action, or be forever barred from asserting
it.” Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178
(1990).
          {¶ 10} Armatas first argues that the Fifth District did not render a final
judgment on the merits in his 2016 mandamus action because it did not address
whether his neighbor’s trees violated the zoning provision. But the Fifth District did
enter a final judgment in that action. It was unnecessary for the court to reach
Armatas’s substantive argument because he failed to demonstrate an essential
element of his mandamus claim—the lack of an adequate remedy at law. See
Armatas, 2017-Ohio-2645, at ¶ 7, 9. The Fifth District’s determination constituted a
judgment on the merits to which res judicata may apply. See State ex rel. Arcadia
Acres v. Ohio Dept. of Job & Family Servs., 123 Ohio St.3d 54, 2009-Ohio-4176,
914 N.E.2d 170, ¶ 15.
          {¶ 11} Armatas also argues that res judicata cannot apply because the two
lawsuits did not involve the same parties. He points to the fact that his 2016
mandamus action was against Ferrara and the Plain Township Board of Trustees
whereas this action is against Ferrara and the board of zoning appeals. But the Fifth
District applied res judicata only to Armatas’s claim against Ferrara, not to Armatas’s
claims against the board of zoning appeals. 2019-Ohio-3258 at ¶ 12-13. The board
of zoning appeals’ presence in this lawsuit does not bar application of the doctrine to
the claim against Ferrara.
          {¶ 12} Armatas next argues that the claims he is raising in this action could
not have been raised in his 2016 mandamus action because the new claims arose later
on when circumstances changed. He relies on State ex rel. Westchester Estates, Inc.




                                            4
                                 January Term, 2020




v. Bacon, 61 Ohio St.2d 42, 399 N.E.2d 81 (1980), paragraph two of the syllabus, in
which this court held:


                Where there has been a change in the facts since a decision
        was rendered in an action, which either raises a new material issue or
        which would have been relevant to the resolution of a material issue
        involved in the earlier action, neither the doctrine of res judicata nor
        the doctrine of collateral estoppel will bar litigation of that issue in a
        later action.


(Emphasis added.)
        {¶ 13} Armatas has not demonstrated that any material facts have changed;
he simply is pursuing a new legal theory in an attempt to resurrect his right to an
administrative appeal of Ferrara’s September 2016 decision. Because Armatas could
have sought in his first mandamus action a writ requiring Ferrara to issue his 2016
decision in writing, res judicata may operate to bar that claim in this case.
        {¶ 14} Finally, Armatas argues that this action does not arise out of the same
transaction or occurrence that was the subject of the 2016 mandamus action. He
claims that whereas the 2016 action involved enforcement of the zoning code, this
action involves only the failures of Ferrara and the board of zoning appeals to issue
written decisions. But Armatas fails to appreciate the connection between his two
lawsuits. The 2016 action failed because another remedy was available for Armatas
to challenge Ferrara’s September 2016 decision—he could have appealed to the
board of zoning appeals. Although Armatas eventually filed an administrative
appeal, the board dismissed it as untimely. Armatas now seeks an order that, in his
view, would facilitate a timely appeal. Because both lawsuits involve Armatas’s
effort to challenge Ferrara’s September 2016 decision, they arise out of the same
transaction or occurrence for purposes of applying res judicata. The Fifth District,




                                            5
                              SUPREME COURT OF OHIO




therefore, correctly applied res judicata to Armatas’s claim against Ferrara in this
case.
        {¶ 15} The Fifth District also correctly dismissed Armatas’s claim against the
board of zoning appeals. Armatas seeks a writ of mandamus directing the board to
hear an appeal of a written decision issued by Ferrara and then to issue its own written
decision after hearing Armatas’s appeal. Because these claims depend on an order
directing Ferrara to issue a written decision—an order Armatas is not entitled to—it
was proper for the Fifth District to dismiss them.
                                                                   Judgment affirmed.
        O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
                                _________________
        Steven A. Armatas, pro se.
        Baker, Dublikar, Beck, Wiley & Mathews, James F. Mathews, and Tonya
J. Rogers, for appellee Thomas Ferrara.
        Pelini, Campbell & Williams, L.L.C., and Eric J. Williams, for appellee
Plain Township Board of Zoning Appeals.
                                _________________




                                           6
