[Cite as Meyer v. Minster Farmer's Coop. Exchange Co., Inc., 2009-Ohio-4933.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SHELBY COUNTY




ROGER MEYER,

        PLAINTIFF-APPELLANT,                                      CASE NO. 17-09-06

        v.

THE MINSTER FARMERS
COOPERATIVE EXCHANGE                                              OPINION
COMPANY, INC.,

        DEFENDANT-APPELLEE.




                 Appeal from Shelby County Common Pleas Court
                            Trial Court No. 06CV356

                                     Judgment Affirmed

                         Date of Decision: September 21, 2009




APPEARANCES:

        Roger H. Meyer, Appellant

        Michael A. Burton for Appellee
Case No. 17-09-06


WILLAMOWSKI, J.

      {¶1} Plaintiff-appellant Roger H. Meyer (“Meyer”) brings this appeal

from the judgment of the Court of Common Pleas of Shelby County dismissing his

counterclaim against defendant-appellee The Minster Farmers Cooperative

Exchange Company, Inc. (“MFCEC”), for failure to bring it as a compulsory

counterclaim. For the reasons set forth below, the judgment is affirmed.

      {¶2} On February 4, 2005, MFCEC filed a complaint against Meyer

alleging that he failed to pay for 28% nitrogen fertilizer purchased from MFCEC.

The complaint was assigned case number 05CV000049. Meyer filed his answer

on March 18, 2005, and also filed a counterclaim alleging that MFCEC owed him

for the loss in crops due to the exchange of product.           According to the

counterclaim, Meyer ordered 175 tons of the fertilizer and was promised a price

between $122 and $128 per ton. MFCEC delivered 102 tons of the fertilizer

during the winter of 2001. In the Spring of 2001, MFCEC notified Meyer that the

price had significantly risen and the remaining 73 tons of fertilizer would cost

$195 per ton. Meyer claims that MFCEC offered to replace the 28% nitrogen

fertilizer with Urea at the original price and agreed to reimburse Meyer for any

loss in yield due to the replacement. Meyer alleged that he suffered losses in

excess of $79,000 when MFCEC failed to abide by the agreement.




                                       -2-
Case No. 17-09-06


       {¶3} On November 7, 2005, Meyer dismissed his counterclaim in case

number 05CV000049, resulting in a judgment against him. Meyer appealed to this

court and then to the Supreme Court of Ohio. The Supreme Court reversed the

findings of the trial court and remanded it for a determination of the interest owed.

On June 10, 2008, the trial court issued its new judgment in case number

05CV000049 concerning the starting date of the finance charges. On November

26, 2008, the trial court granted summary judgment to MFCEC in that case

determining the total amount owed by Meyer. That judgment was appealed to this

court. On March 30, 2009, this court affirmed the judgment of the trial court.

       {¶4} While those legal proceedings were occurring, Meyer filed, as a new

and separate action against MFCEC, his original claim which was previously filed

in case number 05CV000049 as a counterclaim. This new action was assigned

case number 06CV000356. The complaint alleged that the original counterclaim

was a permissive counterclaim and could be filed independently.            The case

proceeded to trial on July 17, 2007. MFCEC attempted to raise the issue of res

judicata, but was barred from doing so by its failure to raise this affirmative

defense in its answer.     A mistrial was subsequently declared when the jury

returned interrogatories that conflicted with the general verdict.

       {¶5} On May 28, 2008, MFCEC filed a motion for summary judgment.

Meyer filed his response on June 30, 2008. The trial court denied the motion for



                                         -3-
Case No. 17-09-06


summary judgment in part and granted the motion in part on July 29, 2008. On

December 5, 2008, MFCEC filed a motion to file an amended answer, which

included the affirmative defense of res judicata. The trial court granted the motion

on January 15, 2009, and the amended answer was filed on January 20, 2009.

Additionally, MFCEC filed a brief alleging that the claim was really a compulsory

counterclaim and asking that the complaint be dismissed. Meyer filed his motion

contra to the motion to dismiss on January 6, 2009. On January 26, 2009, the trial

court filed a notice of its intention to treat the motion to dismiss as a motion for

summary judgment. On February 26, 2009, the trial court entered its judgment

granting MFCEC’s converted motion for summary judgment. Meyer appeals from

this judgment and raises the following assignments of error.

                            First Assignment of Error

       The trial court erred when it allowed the Clerk of Courts to
       assign a new case number to this counterclaim.

                          Second Assignment of Error

       The trial court erred in its determination that the dismissal of
       the counterclaim in case no. 05CV000049 is res judicata in this
       case.

                           Third Assignment of Error

       The trial court erred when it adjudged the 06CV000356 case not
       to be original counterclaim of case 05CV000049.




                                        -4-
Case No. 17-09-06


        {¶6} In the first assignment of error Meyer claims that the trial court

erred by allowing the clerk to assign a new case number. This assignment of error

is overruled. The duty of the clerk of courts is to “file together and carefully

preserve in his office all papers delivered to him for that purpose in every action

or proceeding.” R.C. 2303.09. In this case, Meyer filed a new complaint with a

jury demand. This complaint also contained a praecipe to the clerk asking that

MFCEC be served. When presented with a new complaint, the Clerk of Court

will automatically file it under a new case number as it is a new case. If Meyer

had meant for this to be a renewal of the counterclaim, it should have been

identified as such and the original case number added to the caption in order to

inform the Clerk of Courts where to file the document.1 See Civ.R. 10 requiring

captions to include case numbers. Since this was not done, the Clerk of Courts

acted properly in assigning a new case number. Thus, there was no error and the

first assignment of error is overruled.

        {¶7} Meyer’s second and third assignments of error both allege that the

trial court erred by finding that the claim was a compulsory counterclaim rather

than a permissive counterclaim. The civil rules set forth the requirements for

counterclaims.


1
   Interestingly, Meyer in his complaint alleged that the claim was a permissive counterclaim which could
be filed separately. Now Meyer alleges that the trial court erred by assigning a new case number.
Basically, Meyer is now attempting to shift the blame to the trial court for something he voluntarily chose
to do.


                                                   -5-
Case No. 17-09-06


       (A) Compulsory counterclaims. 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. * * *

       (B) Permissive counterclaims. A pleading may state as a
       counterclaim any claim against an opposing party not arising
       out of the transaction or occurrence that is the subject matter of
       the opposing party’s claim.

Civ.R. 13. This rule has been interpreted as requiring a defendant to raise any

issues arising out of the same transaction in the original suit or have the claim

barred by the doctrine of res judicata. Rettig Ent. Inc. v. Koehler (1994), 68 Ohio

St.3d 274, 626 N.E.2d 99. “This bar operates even though a party has voluntarily

withdrawn a compulsory counterclaim.” L.M. Lignos Ent. v. Beacon Ins. Co. of

America (Feb. 13, 1997), 8th Dist. No. 70816 citing Stern v. Whitlach (1993), 91

Ohio App.3d 32, 631 N.E.2d 680. The provisions of Civil Rule 41 do not negate

the requirements of Civil Rule 13(A). Sec. Natl. Bank & Trust Co. v. Reynolds,

2d Dist. No. 2007 CA 66, 2008-Ohio-4145, ¶32.

      {¶8} Here, Meyer voluntarily dismissed his counterclaim in order to

appeal the grant of summary judgment of MFCEC’s claim. The counterclaim

arose from the same transaction upon which the original complaint was based and

no additional parties were necessary. Thus, the counterclaim was a compulsory

claim under Civil Rule 13(A). Regardless of whether Meyer refiled this claim


                                        -6-
Case No. 17-09-06


within a year, it could not be filed as a new complaint, but was required to be filed

in the original case. The failure to do so bars the claim pursuant to the doctrine of

res judicata. Therefore, the second and third assignments of error are overruled.

       {¶9} Finding no error prejudicial to Meyer, the judgment of the Court of

Common Pleas of Shelby County is affirmed.

                                                                Judgment Affirmed

PRESTON, P.J. and ROGERS, J., concur.

/jlr




                                         -7-
