[Cite as Colopy v. Children's Hosp. Med. Ctr., 2020-Ohio-1205.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

TARA MARIE COLOPY                                          C.A. No.   29565

        Appellant

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
CHILDREN'S HOSPITAL MEDICAL                                COURT OF COMMON PLEAS
CENTER                                                     COUNTY OF SUMMIT, OHIO
                                                           CASE No.   CV-2019-05-1826
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: March 31, 2020



        CALLAHAN, Presiding Judge.

        {¶1}     Appellant, Tara Colopy, appeals an order of the Summit County Court of Common

Pleas that granted summary judgment to Children’s Hospital Medical Center. This Court affirms

in part and reverses in part.

                                                      I.

        {¶2}     Ms. Colopy sued Children’s Hospital Medical Center (“the Hospital”) as the

purported representative of a class, asserting claims for breach of contract, breach of a covenant

of good faith and fair dealing, unjust enrichment, and violation of the Ohio Consumer Sales

Practices Act. She also sought a declaration that the Hospital’s billing practices were illegal and

requested that the trial court impose a constructive trust upon funds collected under the billing

practices that she challenged. The Hospital moved for summary judgment, maintaining that Ms.

Colopy’s claims were compulsory counterclaims that should have been raised in a previous case

and, therefore, that her claims were barred by application of res judicata. Ms. Colopy responded
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in opposition, arguing that the Hospital was not entitled to summary judgment based on application

of res judicata. The Hospital also moved, in the alternative, for a stay of proceedings pending the

resolution of the prior case.

       {¶3}    The trial court granted summary judgment to the Hospital. In doing so, the trial

court concluded that Ms. Colopy’s claims were compulsory counterclaims in the previous action,

granted summary judgment to the Hospital on that basis, and declined to address the application

of res judicata. Ms. Colopy appealed, asserting three assignments of error.

                                                II.

                                ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED
       A MOTION FOR SUMMARY JUDGMENT FILED WITHOUT LEAVE AFTER
       THIS ACTION WAS SET FOR ITS FIRST PRETRIAL IN VIOLATION OF
       CIV.R. 56(A).

       {¶4}    In her first assignment of error, Ms. Colopy has argued that the trial court erred by

granting the Hospital’s motion for summary judgment because the Hospital did not first obtain

leave to file the motion under Civ.R. 56(A). This Court does not agree.

       {¶5}    Under Civ.R. 56(A), “[a] party seeking to recover upon a claim” may file a motion

for summary judgment once an action has been set for pretrial or trial only with leave of court.

Because the Hospital was the defending party in the trial court, Civ.R. 56(A) does not apply. See

King v. Rubber City Arches, L.L.C., 9th Dist. Summit No. 25498, 2011-Ohio-2240, ¶ 30. The

same language appears in Civ.R. 56(B), however, and in that context, this Court has concluded

that “[t]here is no language to suggest that leave must be sought or obtained prior to filing the

motion for summary judgment” and has observed that “‘[i]n fact, it has been held that the trial

court may grant leave by ruling on the merits of the summary judgment motion.’” King at ¶ 32,

quoting Smith v. Capriolo, 9th Dist. Summit No. 19993, 2001 WL 358387, *2 (Apr. 11, 2001),
                                                 3


citing Woodman v. Tubbs Jones, 109 Ohio App.3d 577, 582 (8th Dist.1995). See also State ex rel.

Widmer v. Mohney, 11th Dist. Geauga No. 2007-G-2776, 2008-Ohio-1028, ¶ 57; Lachman v.

Wietmarschen, 1st Dist. Hamilton No. C-020208, 2002-Ohio-6656, ¶ 6; Burke Lakefront Serv. v.

Lemieux, 8th Dist. Cuyahoga No. 79665, 2002-Ohio-4060, ¶ 25.

       {¶6}    Civ.R. 56(B) did not require the Hospital to obtain leave before filing its motion for

summary judgment, and the trial court implicitly granted leave by ruling on the merits of that

motion. Ms. Colopy’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED
       SUMMARY JUDGMENT ON A CLAIM IT DEEMED A COMPULSORY
       COUNTERCLAIM IN AN EARLIER ACTION WHICH IS STILL PENDING,
       UNDER APPEAL AND OTHERWISE NOT ENTITLED TO RES JUDICATA
       EFFECT.

       {¶7}    Ms. Colopy’s second assignment of error is that the trial court erred by granting

summary judgment to the Hospital based solely on the conclusion that her claims were compulsory

counterclaims in the first action without addressing res judicata. This Court agrees.

       {¶8}    This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Under Civ.R. 56(C), “[s]ummary judgment will be

granted only when there remains no genuine issue of material fact and, when construing the

evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that

the moving party is entitled to judgment as a matter of law.” Byrd v. Smith, 110 Ohio St.3d 24,

2006-Ohio-3455, ¶ 10. The substantive law underlying the claims provides the framework for

reviewing motions for summary judgment, both with respect to whether there are genuine issues

of material fact and whether the moving party is entitled to judgment as a matter of law. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Burkes v. Stidham, 107 Ohio App.3d
                                                 4


363, 371 (8th Dist.1995). In this appeal, Ms. Colopy has raised a threshold question: whether the

trial court considered the Hospital’s motion for summary judgment using the correct law.

       {¶9}    Civ.R. 13(A) requires that “[a] pleading shall state as a counterclaim any claim

which at the time of serving the pleading the pleader has against any opposing party, if it arises

out of the transaction or occurrence that is the subject matter of the opposing party’s claim and

does not require for its adjudication the presence of third parties of whom the court cannot acquire

jurisdiction.” The Rule requires that “[a]ll existing claims between opposing parties that arise out

of the same transaction or occurrence must be litigated in a single lawsuit * * * no matter which

party initiates the action.” Retting Ents., Inc. v. Koehler, 68 Ohio St.3d 274 (1994), paragraph one

of the syllabus.

       {¶10} When Civ.R. 13(A) requires the assertion of a counterclaim in an action, the effect

of the Rule is to make the action one based not only upon the claims asserted, but upon those

counterclaims that should have been asserted. See Horne v. Woolever, 170 Ohio St. 178 (1959),

paragraph two of the syllabus (interpreting Fed.R.Civ.P. 13). See also Broadway Mgt., Inc. v.

Godale, 55 Ohio App.2d 49, 50 (9th Dist.1977) (applying Horne to cases involving Civ.R. 13(A)).

When a defendant fails to assert a compulsory counterclaim under Civ.R. 13(A) in an action, a

final judgment on the merits in that action will bar those claims in any subsequent action under the

doctrine of res judicata. See Horne at 181 and paragraph three of the syllabus. Compare Grava

v. Parkman Twp., 73 Ohio St.3d 379 (1995), syllabus (“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.”).

       {¶11} In this case, the trial court determined that Ms. Colopy’s claims were compulsory

counterclaims under Civ.R. 13(A). Ms. Colopy has not challenged that conclusion on appeal, so
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this Court need not review the merits of that decision. Having concluded that her claims were

compulsory counterclaims, however, the trial court granted the Hospital’s motion for summary

judgment based solely on that determination. With respect to res judicata, the trial court wrote:

       [The Hospital] next argues [Ms.] Colopy’s claims are barred by the doctrine of res
       judicata as [Ms.] Colopy ha[d] the opportunity to raise these claims in the previous
       collections action, but failed to do so. Based upon the Court’s findings as set forth
       above, this Court declines to address the argument of res judicata.

(Emphasis in original.)     Under Horne, however, res judicata bars litigation of compulsory

counterclaims in a subsequent action once there has been a final judgment on the merits in the first

action. See Horne at 181 and paragraph three of the syllabus. It was error, therefore, for the trial

court to grant the Hospital’s motion for summary judgment based solely on the conclusion that

Ms. Colopy’s claims were compulsory counterclaims in the first action without considering

whether they were res judicata in the second.

       {¶12} This Court notes that our conclusion in this regard is limited to the argument that

Ms. Colopy has made in this appeal—namely, that the trial court failed to consider whether there

had been a final judgment in the first action. Ms. Colopy’s second assignment of error is sustained

on that basis.

                               ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT VIOLATED
       THE OPEN COURTS PROVISION OF THE OHIO CONSTITUTION BY
       REFUSING TO ALLOW MS. COLOPY A FORUM TO PRESENT HER
       CLAIMS.

       {¶13} In her third assignment of error, Ms. Colopy has argued that by granting summary

judgment to the Hospital based on the determination that her claims were barred by application of

res judicata, the trial court denied her right to access the courts under Ohio Constitution, Article I,
                                                 6


Section 16. This assignment of error is moot in light of this Court’s disposition of her second

assignment of error. See App.R. 12(A)(1)(c).

                                                III.

       {¶14} Ms. Colopy’s first assignment of error is overruled. Her second assignment of error

is sustained. Her third assignment of error is moot. The judgment of the Summit County Court

of Common Pleas is affirmed in part and reversed in part, and this matter is remanded to the trial

court for proceedings consistent with this opinion.

                                                                         Judgment affirmed in part
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.
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       Costs taxed equally to both parties.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT




SCHAFER, J.
CONCURS.

CARR, J.
CONCURRING IN JUDGMENT ONLY.

       {¶15} I concur in the majority’s judgment as I agree that Ms. Colopy’s first assignment

of error is properly overruled and that her second assignment of error should be sustained. Given

that disposition, I concur that her third assignment of error is not properly before us.

       {¶16} With respect to Ms. Colopy’s first assignment of error, it should be noted that she

limited her argument to whether the trial court violated Civ.R. 56(A). As the majority correctly

points out, Civ.R. 56(A), by its own language, is inapplicable. Thus, I would end the analysis

there. To the extent that the briefing warrants addressing Civ.R. 56(B), I agree that it was not

violated. Under Civ.R. 56(B), “[i]f the action has been set for pretrial * * *, [as it was here,] a

motion for summary judgment may be made only with leave of court.” Thus, leave of court was

required. However, by ruling on the motion for summary judgment, the trial court implicitly

granted leave for the filing of the motion. See King v. Rubber City Arches, L.L.C., 9th Dist. Summit

No. 25498, 2011-Ohio-2240, ¶ 32.

       {¶17} As to Ms. Colopy’s second assignment of error, while the trial court expressly

stated it was not addressing res judicata, it, in essence, applied res judicata to Ms. Colopy’s claims;

it concluded that the claims were compulsory counterclaims pursuant to Civ.R. 13(A) and that she
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could not “relitigate her claims in the instant action where she failed to bring them as a

counterclaim in the previously filed collections action.” This Court has stated that “Civ.R. 13(A)

generally requires a compulsory counterclaim to be filed with the answer. The failure to do so

constitutes res judicata once the original action reaches a final judgment.” (Internal citations

omitted and emphasis added.) First Natl. Bank of Pennsylvania v. Nader, 9th Dist. Medina No.

16CA0004-M, 2017-Ohio-1482, ¶ 62. As the trial court made no determination that the first action

ended in a final judgment on the merits, the trial court erred in granting summary judgment to the

Hospital.


APPEARANCES:

DEAN S. HOOVER, Attorney at Law, for Appellant.

MARK I. WALLACH and JAMIE A. PRICE, Attorneys at Law, for Appellee.
