[Cite as Adams v. Romine, 2019-Ohio-482.]


                                      COURT OF APPEALS
                                  MUSKINGUM COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                     JUDGES:
TINA ADAMS                                   :       Hon. W. Scott Gwin, P.J.
                                             :       Hon. William B. Hoffman, J.
                       Plaintiff-Appellant   :       Hon. John W. Wise, J
                                             :
-vs-                                         :
                                             :       Case No. CT2018-0043
EDWARD J. ROMINE                             :
                                             :
                    Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                         Civil appeal from the Muskingum County
                                                 Court of Common Pleas, Case No.
                                                 CC2018-0056



JUDGMENT:                                        Affirmed



DATE OF JUDGMENT ENTRY:                          February 11, 2019



APPEARANCES:

For Plaintiff-Appellant                          For Defendant-Appellee

MILES FRIES                                      JENNIFER WILSON
320 Main Street, P.O Box 190                     65 East State Street, Ste. 800
Zanesville, OH 43702                             Columbus, OH 43215
[Cite as Adams v. Romine, 2019-Ohio-482.]


Gwin, P.J.

        {¶1}    Appellant appeals the June 1, 2018 judgment entry of the Muskingum

County Court of Common Pleas granting appellee’s motion for summary judgment.

                                        Facts & Procedural History

        {¶2}    On February 20, 2018, appellant Tina Adams filed a complaint against

appellee Edward Romine. In the complaint, appellant alleges appellee was the owner of

the residential premises located at 506 Wayne Avenue and appellant was a tenant of

appellee, residing at 506 Wayne Avenue. Appellant avers appellee, “as the landlord, had

a duty to maintain the premises in a safe and habitable condition, free of hazards and

defects.” Further, that she suffered serious injuries “as a direct and proximate result of

the negligence of the defendant in failing to maintain the premises in a safe condition,

free of hazards.”       Appellant alleges the “back steps of the subject premises were

hazardous, thereby constituting the negligence of the defendant and resulting in the

injuries suffered by the plaintiff.”

        {¶3}    Appellee filed an answer March 5, 2018, admitting appellant was a tenant

prior to her eviction and admitting landlords and tenants have duties as set forth by the

Ohio Revised Code, but denying the remainder of the allegations.

        {¶4}    Appellee filed a motion for summary judgment on April 2, 2018, arguing

appellant’s claims are barred by res judicata.

        {¶5}    Attached to the motion for summary judgment is the affidavit of appellee.

Appellee avers he is the landlord for the property at 506 Wayne Avenue and he and

appellant entered into a lease of the property in 2006. Appellee alleges he filed a forcible

entry and detainer action and damages action against appellant in Zanesville Municipal
Muskingum County, Case No. CT2018-0043                                                 3


Court in 2014. Appellee states appellant did not file a counterclaim, the municipal court

conducted a damages hearing, and the municipal court awarded a judgment in appellee’s

favor in the amount of $3,268.61 on his damages claim. Appellee attached a copy of the

agreed judgment entry and judgment entry on damages from the municipal court, and

avers they are true and accurate copies.

       {¶6}   The agreed judgment entry dated August 28, 2014 states appellee agreed

to dismiss the forcible entry and detainer action if appellant vacated the property on or

before September 30, 2014. Appellee further agreed to dismiss the damages action if

appellant vacated the property by September 30, 2014 and left the premises in good

condition. The agreed judgment entry states if, upon inspection by appellee, the premises

were not in good condition, appellee may proceed with the damages cause of action;

additionally, that appellant had until October 28, 2014 to file her answer to the damages

cause of action.

       {¶7}   The November 24, 2014 judgment entry states the court held a damages

hearing and ordered judgment be entered in favor of appellee in the amount of $3,268.61.

       {¶8}   Appellant filed a memorandum contra to appellee’s motion on May 10,

2018. Attached to the memorandum in opposition is appellant’s affidavit. Appellant avers

it was her understanding that upon her moving out of the premises, the entire complaint

against her would be dismissed in municipal court. Further, appellant states she did not

receive notice of the damages hearing, was unaware judgment had been rendered

against her, and her attorney in the municipal court action did not advise her it was

necessary to assert a claim for the injuries she suffered.
Muskingum County, Case No. CT2018-0043                                                      4


      {¶9}   Appellee filed a reply in support his motion for summary judgment on May

24, 2018.

      {¶10} The trial court granted appellee’s motion on June 1, 2018.               Appellant

appeals the June 1, 2018 judgment entry of the Muskingum County Court of Common

Pleas and assigns the following as error:

      {¶11} “I. RES JUDICATA DOES NOT BAR APPELLANT’S COMPLAINT

BECAUSE SHE DID NOT HAVE A FULL AND FAIR OPPORTUNITY TO LITIGATE HER

CLAIM IN THE FORCIBLE ENTRY AND DETAINER ACTION.

      {¶12} “II. APPELLANT’S PERSONAL INJURY CLAIM AGAINST HER FORMER

LANDLORD DID NOT CONSTITUE A COMPULSORY COUNTERCLAIM REQUIRED

TO BE ASSERTED IN THE FORCIBLE ENTRY AND DETAINER ACTION.”

                                  Summary Judgment Standard

      {¶13} Civ.R. 56 states, in pertinent part:

      Summary judgment shall be rendered forthwith if the pleadings,

      depositions, answers to interrogatories, written admissions, affidavits,

      transcripts of evidence, and written stipulations of fact, if any, timely filed in

      the action, show that there is no genuine issue of material fact and that the

      moving party is entitled to judgment as a matter of law. No evidence or

      stipulation may be considered except as stated in this rule. A summary

      judgment shall not be rendered unless it appears from the evidence or

      stipulation, and only from the evidence or stipulation, that reasonable minds

      can come to but one conclusion and that conclusion is adverse to the party

      against whom the motion for summary judgment is made, that party being
Muskingum County, Case No. CT2018-0043                                                  5


       entitled to have the evidence or stipulation construed mostly strongly in the

       party’s favor. A summary judgment, interlocutory in character, may be

       rendered on the issue of liability alone although there is a genuine issue as

       to the amount of damages.

       {¶14} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d

271 (1984). A fact is material if it affects the outcome of the case under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d

1186 (6th Dist. 1999).

       {¶15} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review

the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

                                             I. & II.

       {¶16} We consider appellant’s assignments of error together because they are

interrelated.

       {¶17} Appellant argues res judicata does not apply because she did not have a

full and fair opportunity to litigate her claims in the municipal court action because she

believed the case was dismissed after she moved out and because she was not given
Muskingum County, Case No. CT2018-0043                                                     6


proper notice of the damages hearing. Appellee contends the requirements for res

judicata are met.

       {¶18} The doctrine of res judicata precludes “relitigation of a point of law or fact

that was at issue in a former action between the same parties and was passed upon by

a court of competent jurisdiction.” State ex rel. Kroger Co. v. Indus. Comm., 80 Ohio

St.3d 649, 687 N.E.2d 768 (1998). In order to apply the doctrine of res judicata, we must

conclude the following: “(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.” Grava v. Parkman Twp., 73 Ohio St.3d 379, 653

N.E.2d 226 (1995).

       {¶19} There is no dispute the prior damages action involved the same parties as

in this case, appellant and appellee. Additionally, though appellant alleges she did not

have a full and fair opportunity to litigate her claim in the municipal court action because

she did not know she had to present her counterclaim at that time, res judicata also

extends to claims that “were or could have been litigated” in the first action. State ex rel.

Massey v. Stark Cty. Common Pleas Ct., 5th Dist. Stark No. 2017CA00003, 2017-Ohio-

1351; Franklin v. Brown, 5th Dist. Richland No. 16CA24, 2016-Ohio-7032. Appellant

alleges she suffered injury on the steps on May 1, 2014. The damages action was filed

on August 4, 2014 and judgment was entered against appellant on November 24, 2014.

Thus, appellant’s negligence claim could have been litigated in the first action.

       {¶20} Further, the November 24, 2018 judgment entry of the Zanesville Municipal

Court granting judgment to appellee and awarding appellee damages of $3,268.61 is a
Muskingum County, Case No. CT2018-0043                                                     7


prior valid judgment on the merits. Though appellant argues she was not given proper

notice of the damages hearing in the municipal court case and contends she thought the

case was dismissed after she moved out, the November 24, 2014 judgment entry was a

valid judgment on the merits from which no appeal was taken.

       {¶21} In this case, the question of whether both actions arise out of the same

transaction or occurrence for purposes of res judicata is intertwined with the question of

whether appellant’s claim in this case was a compulsory counterclaim to appellee’s prior

damages action. Appellant contends her claim is not a compulsory counterclaim because

a claim by a tenant does not have to be asserted as a counterclaim in a forcible entry and

detainer action. Specifically, appellant argues Civil Rule 13(A) is inapplicable to forcible

entry and detainer actions.      Appellee argues appellant’s claim was a compulsory

counterclaim to the action for damages in 2014.

       {¶22} Civil Rule 13 governs compulsory counterclaims and provides, “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.”

       {¶23} The Ohio Supreme Court provides a two-part test for determining whether

there is a compulsory counterclaim: (1) does the claim exist at the time of serving the

pleading; and (2) does the claim arise out of the transaction or occurrence that is the

subject matter of the opposing claim. Retting Enters. Inc. v. Koehler, 68 Ohio St.3d 272,

626 N.E.2d 99 (1994). If a party fails to raise a compulsory counterclaim in an initial suit,

res judicata bars that party from raising it in any subsequent action. Id.
Muskingum County, Case No. CT2018-0043                                                     8


       {¶24} In this case, there is no dispute appellant’s claim existed at the time

appellee filed his complaint. As the first prong of the two-part test is met, the remaining

question is whether the claim in this action arises out of the same transaction or

occurrence that is the subject of the first action.

       {¶25} In order to determine whether claims arise out of the same transaction or

occurrence, courts most frequently utilize the “logical relation test.” Id. “Under this test,

a compulsory counterclaim is one which is logically related to the opposing party’s claim

where separate trials on each of their respective claims would involve a substantial

duplication of effort and time by the parties and the courts.” Id. The Rettig court further

stated, “multiple claims are compulsory counterclaims where they involve many of the

same factual issues, or the same factual and legal issues, or where they are offshoots of

the same basic controversy between the parties.” Id. The purpose is to “avoid multiplicity

of actions and to achieve a just resolution by requiring in one lawsuit the litigation of all

claims arising from common matters.” Id.

       {¶26} Appellant is correct is her assertion that, pursuant to R.C. 1923.03,

judgments under forcible entry and detainer “are not a bar to a later action brought by

either party.” However, appellee in this case also joined an action for damages with his

forcible entry and detainer action. Although Civil Rule 13(A) is inapplicable to a forcible

entry and detainer action, it is applicable to a suit for back rent or for money damages.

Haney v. Roberts, 130 Ohio App.3d 293, 720 N.E.2d 101 (4th Dist. Scioto 1998); Carter

v. Russo Realtors, 10th Dist. Franklin No. 99AP-585, 2000 WL 249137 (March 7, 2000);

Kerr v. Lakewood Shore Towers, Inc., 8th Dist. Cuyahoga No. 93462, 2010-Ohio-265.
Muskingum County, Case No. CT2018-0043                                                 9


Thus, when a landlord sues for back rent or money damages, the tenant has a Civil Rule

13(A) duty to assert any compulsory counterclaim in the action. Id.

      {¶27} Appellee argues the “logical relation” test is met in this case because both

this case and the previous case involve rights and duties arising from the rental

agreement and the landlord/tenant relationship.

      {¶28} Ohio’s Landlord-Tenant Act “codifies the law of this state regarding rental

agreements for residential premises, and governs the rights and duties of both landlords

and tenants.” Vardeman v. Llewellyn, 17 Ohio St.3d 24, 476 N.E.2d 1038 (1985). The

Ohio Supreme Court has stated the intent of the General Assembly in enacting the

Landlord-Tenant Act is “to provide tenants with greater rights and to negate the previous

tort immunities for landlords.” Shroades v. Rental Homes, Inc., 68 Ohio St.2d 20, 427

N.E.2d 774 (1981).

      {¶29} The Landlord-Tenant Act imposes specific statutory duties when the parties

enter into a rental agreement. “R.C. 5321.04(A) sets forth the obligations of a landlord

who is a party to a rental agreement” and, “among other duties,” a landlord must “make

all repairs and do whatever is reasonably necessary to put and keep the premises in a fit

and habitable condition,” R.C. 5321.04(A)(2), and “keep all common areas of the

premises in a safe and sanitary condition.” R.C. 5321.04(A)(3); Mann v. Northgate

Investors, LLC, 138 Ohio St.3d 175, 2014-Ohio-455, 5 N.E.3d 594. “The purpose of the

statute is to protect persons using rented residential premises from injuries.” Shroades

v. Rental Homes, Inc., 68 Ohio St.2d 20, 427 N.E.2d 774 (1981).

      {¶30} Courts addressing the issue have held that claims stemming from the rental

agreement or the Landlord-Tenant Act are compulsory counterclaims in lawsuits for
Muskingum County, Case No. CT2018-0043                                                  10


forcible entry and detainer coupled with an action for back rent and/or money damages.

Sherman v. Pearson, 110 Ohio App.3d 70, 673 N.E.2d 643 (1st Dist. Hamilton 1996)

(holding appellant’s personal injury claim for a fall on stairs was a compulsory

counterclaim she was required to assert in the landlord’s earlier action against her for

forcible entry and detainer and back rent because both actions involved rights and duties

arising from the rental agreement and the obligations and duties which the Landlord-

Tenant Act imposes as a consequence of the agreement); Forney v. Climbing Higher

Enterprises, Inc., 158 Ohio App.3d 338, 815 N.E.2d 722 (9th Dist. Summit 2004) (holding

tenant’s claim for negligent failure to disclose was a compulsory counterclaim to a joined

forcible entry and detainer and damages action because the basis for each cause of

action was the landlord-tenant relationship); McCord v. Costy, 12th Dist. Clermont No.

CA-87-05-036, 1987 WL 27190 (holding appellant’s allegation as to the violation of R.C.

5321.04 arises out of the landlord-tenant relationship and is a compulsory counterclaim

in a previous forcible entry and detainer action and claim for back rent); McAlpine v.

Patrick, 8th Dist. Cuyahoga No. 86453, 2006-Ohio-1101 (holding breach of contract

action is a compulsory counterclaim to landlord’s forcible entry and detainer claim coupled

with a claim for back rent because the claim arose out of the landlord-tenant relationship

between the parties).

      {¶31} As noted by the First District, if appellant’s negligence counterclaim

exceeded the municipal court’s monetary jurisdiction, the Ohio Supreme Court has stated

the counterclaim still must be pled in the responsive pleading and the remedy is to certify

the proceedings to the court of common pleas pursuant to Civil Rule 13(J). Sherman v.
Muskingum County, Case No. CT2018-0043                                                 11

Pearson, 110 Ohio App.3d 70, 673 N.E.2d 643 (1st Dist. Hamilton 1996), citing Behrle v.

Beam, 6 Ohio St.3d 41, 451 N.E.2d 237 (1983).

       {¶32} In this case, appellant’s claim is based upon appellee’s alleged failure to

maintain the premises in a safe and habitable condition, free of hazards and defects and

her complaint utilizes the language contained in the Landlord-Tenant Act in R.C.

5321.04(A).    The lease agreement upon which appellee earlier sued gave rise to

appellee’s duty to keep the premises in a safe and habitable condition, free of hazards,

which in turn provided appellant with a separate claim for damages. Both this action and

appellee’s previous action have a common source, the lease agreement between the

parties, and the obligations and duties which the Landlord-Tenant Act imposes as a

consequence of the agreement. We thus find the “logical relation” test is met in this case

because this case and the previous case involve rights and duties arising from the lease

agreement and Landlord-Tenant Act.

       {¶33} Accordingly, we find, pursuant to Civil Rule 13(A), appellant’s claim in this

case was a compulsory counterclaim she was required to assert in the landlord’s earlier

action for damages. Because appellant’s claim is a compulsory counterclaim to the

previous damages action, appellant is barred by the doctrine of res judicata from bringing

her claim against appellant in this action.
Muskingum County, Case No. CT2018-0043                                                12


      {¶34} Based on the foregoing, appellant’s assignments of error are overruled.

      {¶35} The June 1, 2018 judgment entry of the Muskingum County Court of

Common Pleas is affirmed.



By Gwin, P.J., and

Wise, J., concur;

Hoffman, J., dissents
Muskingum County, Case No. CT2018-0043                                                                    13

Hoffman, J., dissenting

        {¶36} The majority opinion thoroughly and succinctly sets forth the test to be

applied in determining whether Appellant’s claim for personal injury is or is not a

compulsory counterclaim.           And, the majority cites ample authority from four other

Appellate Districts within Ohio, which have reached the same conclusion it does.1 While

it would seem a simple matter to merely concur based upon the sheer volume of this case

law precedent, I am not yet fully persuaded of the ultimate result in this case. Accordingly,

I offer my analysis.

        {¶37} I begin by readily conceding certain points. First, Appellant’s claim clearly

could have been filed as a counterclaim in the forcible and detainer action. Second,

Civ.R. 13(A) is applicable to a forcible entry and detainer actions when a claim for back

rent and/or damages to the rental premises is sought. Third, Appellant’s personal injury

action and Appellee’s previous municipal court action rise from a common source, their

landlord-tenant relationship.2

        {¶38} The question that must be answered is whether there exists a “logical

relation” between the two claims; i.e., do they arise out of the same transaction or

occurrence that was the subject matter of Appellee’s earlier action.

        {¶39} Would separate trials of Appellee’s claim for back rent or damage to the

rental property require a substantial duplication of effort and time by the parties or courts

to try Appellant’s personal injury claim separately? I think not.




1 I find Judge Painter’s dissent in one of the cases cited by the majority, Sherman v. Person, 110 Ohio
App.3d 70 (1966), persuasive.
2 While Appellant’s claim is premised on the Landlord-Tenant act, Appellees damages claim would be

premised on a violation of the lease agreement.
Muskingum County, Case No. CT2018-0043                                                      14


       {¶40} Although the establishment of the landlord-tenant relationship would be

needed in both actions, it would seem to be necessarily conceded given the nature of

both claims and likely stipulated.

       {¶41} Appellee’s claims for back rent and/or damages to the leased premises

would be irrelevant to Appellant’s personal injury claim, other than possibly to offset

damages. Appellant’s personal injury claim would require evidence that would likewise

be irrelevant to Appellee’s claim for damages in the underlying forcible entry and detainer

action. I see little, if any, real threat of “substantial duplication” of evidence or effort if

separate trials were to be held.

       {¶42} It seems clear litigation of Appellee’s claim for damages in municipal court

did not involve a point of law or fact that would need be in Appellant’s personal injury

claim. I do not find a logical relationship exists between the two actions sufficient to

support a determination Appellant’s personal injury action was a compulsory

counterclaim.




                                           _____________________________________
                                           HON. WILLIAM B. HOFFMAN
