[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
