[Cite as Denefield v. Akron, 2019-Ohio-3249.]


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

BRENDA DENEFIELD, et al.                                C.A. No.    28771

        Appellants

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
MANUEL NEMER, et al.                                    COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
        Appellees                                       CASE No.   CV-2016-08-3700

                                 DECISION AND JOURNAL ENTRY

Dated: August 14, 2019



        CARR, Judge.

        {¶1}    Plaintiffs-Appellants Brenda Denefield, American Legion, Inc., and Highland

Square Management, Inc., collectively “Property Owners,” appeal from the judgment of the

Summit County Court of Common Pleas. This Court affirms in part, reverses in part, and

remands the matter for proceedings consistent with this decision.

                                                   I.

        {¶2}    This matter concerns the development of four parcels of land in the City of

Akron. Those parcels are owned by Defendant-Appellee Lebo Holdings, LLC. Defendant-

Appellee Manuel Nemer is Lebo Holdings, LLC’s managing partner. Property Owners own

property adjacent to one or more of the parcels.

        {¶3}    In 2013, Mr. Nemer submitted an application to Defendant-Appellee Akron City

Planning Commission seeking a conditional use permit to construct a retail/apartment

development on one of the parcels: 795 West Market Street. Ultimately, both the planning
                                                2


commission and Defendant-Appellee Akron City Council approved the permit; Akron City

Council issued Ordinance No. 186-2013, which was later signed by the mayor. The ordinance

authorized Mr. Nemer to develop and use four parcels for the retail/apartment development.

       {¶4}    In July 2013, Highland Square Management, Inc. filed an administrative appeal

challenging the granting of the conditional use permit. Therein, Highland Square Management,

Inc. pointed to numerous defects in the application, notice, and procedure adopting Ordinance

No. 186-2013. Much of the concern centered on the fact that the application only mentioned 795

West Market Street but the conditional use approval included three other parcels, two of which

were zoned single family residential. Highland Square Management, Inc. viewed this as an

improper rezoning of the parcels without an application for a variance.         Appellees in the

administrative appeal were Akron City Council and Akron City Planning Commission.

       {¶5}    Later, but prior to any ruling in the administrative appeal, Highland Square

Management, Inc. filed a civil action seeking injunctive relief related to construction and use of

the parcels. That civil action named Lebo Holdings, LLC, Mr. Nemer, and Summit County as

defendants. The two matters were subsequently consolidated.

       {¶6}    The trial court dismissed the administrative appeal with prejudice concluding that

Highland Square Management, Inc. failed to serve Akron City Council or Akron City Planning

Commission; thus, Highland Square Management, Inc. failed to perfect its appeal. The trial

court also dismissed the action for injunctive relief with prejudice.          Highland Square

Management, Inc. appealed the judgment and this Court affirmed, following a remand for the

trial court to rule on a Civ.R. 60(B) motion. See Highland Square Management, Inc. v. Akron,

9th Dist. Nos. 27211, 27372, 2015-Ohio-401, ¶ 5, 24.
                                                 3


       {¶7}    On June 18, 2015, Property Owners filed a complaint against Lebo Holdings,

LLC, Mr. Nemer, and Defendants-Appellees City of Akron Planning Commission and Akron

City Council (collectively “Akron”). Property Owners sought a declaratory judgment finding

that Ordinance No. 186-2013 was unlawful and void and also sought injunctive relief. In their

first claim, Property Owners argued Akron erred in approving the conditional use petition when

there “was no compliance with numerous mandatory procedural requirements * * *.” In the

second count, Property Owners asserted that Akron, Mr. Nemer, and Lebo Holdings, LLC

“intend to create a public alley or road on the residential parcels and have failed to follow the

procedures and comply with the notice requirements under [R.C. 723.09 and 723.10.]” Property

Owners later voluntarily dismissed the action.

       {¶8}    In August 2016, Property Owners filed the instant action against Akron, Lebo

Holdings, LLC, and Mr. Nemer. Count one reiterated many of the alleged procedural defects

noted in the administrative appeal and the 2015 complaint. Additionally, the instant complaint

included an assertion that Akron Codified Ordinance 153.470 “does not give Defendant City of

Akron the authority to create a public alley over private property that is zoned single family

residential.” In the prayer for relief with respect to count one, Property Owners demanded a

declaratory judgment that the conditional use ordinance was “void as a matter of law to the

extent that it creates an alley over residential parcels, based on procedural error and other

violations of law; and that the ordinance to the extent it unlawfully creates an alley over

residential parcels be stricken from the Code of Ordinances for the City of Akron.”

       {¶9}    Count two stated that Akron, Mr. Nemer, and Lebo Holdings, LLC “intend to

create a public alley or road on the residential parcels and have failed to follow the procedures

and comply with the notice requirements under Ohio R.C. [723.09 and 723.10] respectively.” In
                                                4


the prayer for relief addressing count two, the Property Owners demanded that “Defendants,

Lebo Holdings, LLC and Defendant Nemer, their agents, servants, employees, and all persons in

active concert and participation with the Defendants, be permanently enjoined from proceeding

with any further use of the proposed alley until there has been procedural compliance with Ohio

R.C. [] 723.09, 273.10 and 723.11 and be enjoined from any further action that is contrary to the

ordinances of the City of Akron and the law of the State of Ohio.”

       {¶10} Finally, count three of the instant complaint asserted that Lebo Holdings, LLC

and Mr. Nemer failed to comply with some of the conditions outlined in Ordinance No. 186-

2013. In their prayer for relief for count three, Property Owners maintained they were entitled to

injunctive relief “compelling Defendants Lebo Holdings, LLC and Defendant Nemer to complete

the work proposed under Akron City Ordinance 186-2013 in a manner consistent with the

drawings and site plans approved by the City of Akron as well as an order compelling the

Defendant the City of Akron to enforce the conditions of the conditional use application that it

approved under Akron City Ordinance 186-2013.”

       {¶11} Akron filed an answer wherein it raised several defenses, including res judicata.

Thereafter, Lebo Holdings, LLC and Mr. Nemer also answered the complaint and included res

judicata among their defenses. Akron filed a motion to dismiss or, alternatively, for summary

judgment. Therein, Akron argued that Property Owners’ complaint failed to state a claim upon

which relief can be granted, the claims were barred by the statute of limitations and res judicata,

and the claims were moot. Lebo Holdings, LLC and Mr. Nemer filed a similar motion in which

they made similar arguments and also joined in Akron’s motion. Akron’s supporting evidence

largely consisted of filings from prior cases. Property Owners opposed the motions and reply

briefs were also filed.
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       {¶12} The trial court concluded that counts one and two of Property Owners’ complaint

were barred by res judicata; however, it concluded that count three was not.              Instead, it

concluded that, with respect to count three, Property Owners failed to state a claim upon which

relief could be granted as they failed to allege the elements necessary to receive injunctive relief.

Additionally, with respect to Akron, the trial court concluded that an injunction was not an

appropriate way to force a municipality to comply with its code of ordinances.

       {¶13} Property Owners have appealed, raising three assignments of error for our review.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING
       THE DEFENDANTS’ [CIV.R.] 56 MOTION FOR SUMMARY JUDGMENT
       ON COUNT I IN THAT RES JUDICATA DOES NOT APPLY TO THE
       PLAINTIFFS’ CLAIMS FOR DECLARATORY JUDGMENT BASED ON
       OHIO R.C. [] 713.13[.]

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN DISMISSING COUNT II BASED ON RES
       JUDICATA IN THAT SUCH CLAIMS DO NOT INVOLVE ALL OF THE
       SAME PARTIES AS IN THE ADMINISTRATIVE APPEAL AND THIS
       COUNT INCLUDES CLAIMS THAT WERE NOT AND COULD NOT HAVE
       BEEN LITIGATED IN THE PREVIOUS ACTION.

       {¶14} Property Owners argue in their first and second assignments or error that the trial

court erred in granting summary judgment to Akron, Lebo Holdings, LLC, and Mr. Nemer based

upon res judicata. Because we conclude that Akron, Lebo Holdings, LLC and Mr. Nemer failed

to meet their burden on summary judgment with respect to the affirmative defense of res

judicata, we agree.

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

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial
                                                 6


court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio

App.3d 7, 12 (6th Dist.1983).

       {¶16} Pursuant to Civ.R. 56(C), summary judgment is proper if:

       (1) No 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 (1977).

       {¶17} The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts of the record that show the absence of

a genuine issue of material fact.      Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).

Specifically, the moving party must support the motion by pointing to some evidence in the

record of the type listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of

supporting its motion for summary judgment with acceptable evidence pursuant to Civ.R. 56(C),

Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or

denials of the moving party’s pleadings. Id. at 293. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated at trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d

447, 449 (1996).

       {¶18} The trial court applied claim preclusion to Property Owners’ first two counts.

“Under Ohio law, the doctrine of res judicata consists of both claim preclusion and issue

preclusion.” Robinson v. Springfield Local School Dist. Bd. of Edn., 9th Dist. Summit No.

20606, 2002 WL 462860, *3 (Mar. 27, 2002) citing Ft. Frye Teachers Assn., OEA/NEDA v.
                                                 7


State Emp. Relations Bd., 81 Ohio St.3d 392, 395 (1998).              “Claim preclusion prevents

subsequent actions, by the same parties or their privies, based upon any claim arising out of a

transaction that was the subject matter of a previous action.” (Internal quotations and citations

omitted.) KNL Custom Homes, Inc. v. Dotsikas, 9th Dist. Summit No. 27990, 2016-Ohio-5117,

¶ 5. “The previous action is conclusive for all claims that were or that could have been litigated

in the first action.” (Internal quotations omitted.) Id. “It is well-settled that res judicata is an

affirmative defense.” Miller v. Community Health Partners, 9th Dist. Lorain No. 12CA010165,

2013-Ohio-1935, ¶ 13. The party asserting it has the burden of establishing it. Moffitt v.

Litteral, 2d Dist. Montgomery No. 19154, 2002-Ohio-4973, ¶ 21.

       {¶19} Irrespective of whether Akron, Lebo Holdings, LLC, and Mr. Nemer met their

burden with respect to other elements of res judicata, we conclude that they failed to demonstrate

the absence of a genuine issue of material fact with respect to whether Property Owners’ current

counts one and two were previously litigated or could have been previously litigated. See KNL

Custom Homes, Inc. at ¶ 5.

       {¶20} It is true that issues related to the conditional use of the parcels have been

previously litigated. However, the current focus of counts one and two of the instant litigation is

an alley. As noted above, with respect to count one, Property Owners demanded a declaratory

judgment that the conditional use ordinance was “void as a matter of law to the extent that it

creates an alley over residential parcels, based on procedural error and other violations of law;

and that the ordinance to the extent it unlawfully creates an alley over residential parcels be

stricken from the Code of Ordinances for the City of Akron.” With respect to count two,

Property Owners demanded that “Defendants, Lebo Holdings, LLC and Defendant Nemer, their

agents, servants, employees, and all persons in active concert and participation with the
                                                 8


Defendants, be permanently enjoined from proceeding with any further use of the proposed alley

until there has been procedural compliance with Ohio R.C. [] 723.09, 273.10 and 723.11 and be

enjoined from any further action that is contrary to the ordinances of the City of Akron and the

law of the State of Ohio.”

       {¶21} In the filings submitted in support of the motions for summary judgment, an alley

is scarcely mentioned, let alone detailed. There is an alley mentioned in a paragraph of the 2013

complaint seeking injunctive relief. That paragraph states:

       The City of Akron proposes to eliminate the ingress/egress from North Highland
       Avenue at the Chipotle/Akron Summit County Library parking lot and add a cul-
       de-sac at the south end of North Highland, which would require all traffic entering
       the Nemer proposed parking lot to exit through a one-way alley onto Casterton
       Avenue.

       {¶22} It is unclear if that alley is the same alley discussed in the current complaint.

Notably, Ordinance No. 186-2013 does not mention an alley and neither does the drawing

accompanying the ordinance. After considering the totality of the evidence presented it is

impossible to discern whether the alley mentioned in the prior proceeding is the alley at issue in

the instant complaint or whether an alley was even contemplated by the ordinance. In short, we

know very little about the alley that is at the center of Property Owners’ claims. Notably, in their

brief in opposition to the motion for summary judgment, Property Owners asserted that at the

time of the prior proceedings, the alley “had not yet been constructed and did not exist until over

two years later.” While the foregoing is merely an allegation without supporting evidence,

Akron’s, Lebo Holdings, LLC’s, and Mr. Nemer’s evidence did not dispel the possibility that the

same is true. Nothing in the evidentiary materials submitted demonstrated that Property Owners’

first two counts were previously litigated or could have been previously litigated. See KNL

Custom Homes, Inc., 2016-Ohio-5117, at ¶ 5.
                                                9


       {¶23} It was Akron’s, Lebo Holding, LLC’s, and Mr. Nemer’s burden to demonstrate

the absence of a genuine issue of material fact with respect to the application of res judicata and

they have failed to meet that burden. We note that the declarations that Property Owners sought

in counts one and two appeared to be limited to issues related to the alley. This Court has only

decided that Akron, Lebo Holding, LLC, and Mr. Nemer failed to demonstrate res judicata

applied with respect to allegations related to the alley, and, thus, it was erroneous for the trial

court to grant summary judgment as to those two counts. This opinion should not be read to

imply that res judicata was inapplicable to other issues and allegations in the complaint that were

or could have been previously litigated.

       {¶24} To the extent that Akron, Lebo Holdings, LLC, and Mr. Nemer assert that counts

one and two are moot, we cannot say that they have submitted evidence demonstrating the same

given the lack of evidence about this particular alley. To the extent that Akron, Lebo Holdings,

LLC, and Mr. Nemer contend that these claims are barred by the statute of limitations and fail to

state a claim upon which relief can be granted, we note that the trial court has not yet passed

upon the merits of these assertions in the first instance. “This Court is a reviewing court and its

role is not to decide matters in the first instance.” Huntington Natl. Bank v. Anderson, 9th Dist.

Lorain No. 17CA011223, 2018-Ohio-3936, ¶ 32. Accordingly, we sustain Property Owners’

first two assignments of error but remand the matter for the trial court to consider the arguments

it previously declined to consider. See id.

       {¶25} Property Owners’ first and second assignments of error are sustained.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN DISMISSING COUNT III ON THE BASIS
       OF OHIO CIV.R. 12(C) IN THAT APPELL[ANTS] PROPERLY PLEAD A
       CLAIM FOR STATUTORY INJUNCTIVE RELIEF FOR VIOLATING A
                                                10


       ZONING ORDINANCE AND NEITHER APPELLEE RAISED ANY ISSUE
       CONCERNING DAMAGES[.]

       {¶26} Property Owners argue in their third assignment of error that the trial court erred

in dismissing their third count of their complaint. We agree in part.

       {¶27} Count three of the instant complaint asserted that Lebo Holdings, LLC and Mr.

Nemer failed to comply with some of the conditions outlined in Ordinance No. 186-2013. In

their prayer for relief for count three, Property Owners maintained they were entitled to

injunctive relief “compelling Defendants Lebo Holdings, LLC and Defendant Nemer to complete

the work proposed under Akron City Ordinance 186-2013 in a manner consistent with the

drawings and site plans approved by the City of Akron as well as an order compelling the

Defendant the City of Akron to enforce the conditions of the conditional use application that it

approved under Akron City Ordinance 186-2013.”

       {¶28} With respect to count three, the trial court concluded that “[i]t is unclear from the

evidence presented when the alleged violations of City of Akron Ordinance 186-2013 specified

in Count Three occurred and whether these claims could have been included in the prior cause of

action.” Accordingly, the trial court concluded that Akron, Lebo Holdings, LLC, and Mr. Nemer

had failed to demonstrate that res judicata barred count three.

       {¶29} The trial court went on to construe Akron’s, Lebo Holdings, LLC’s, and Mr.

Nemer’s motion to dismiss for failure to state a claim with respect to count three as a motion for

judgment on the pleadings.

       {¶30} “Civ.R. 12(C) * * * presents only questions of law, and determination of the

motion for judgment on the pleadings is restricted solely to the allegations in the pleadings. In

ruling upon a motion under Civ.R. 12(C), the trial court is limited to the face of the pleadings on

file with the court. It cannot be supported by facts outside those pleadings.” (Internal quotations
                                               11


and citations omitted.) Hall v. Crystal Clinic, Inc., 9th Dist. Summit No. 28524, 2017-Ohio-

8471, ¶ 6. A ruling granting a motion for judgment on the pleadings is reviewed de novo. Id.

       {¶31} The trial court concluded that Property Owners

       failed to plead a cause of action for an injunction based upon the failure to comply
       with City of Akron Ordinance 186-2013. First, Plaintiffs’ Complaint fails to
       allege any irreparable harm as a result of the five alleged violations of Akron City
       Ordinance 186-2013. No explanation or allegation of potential injury to be
       suffered if injunctive relief is not granted is included in the Complaint. * * *
       Further, no claims of any tort whatsoever are alleged in the Complaint. * * *
       Without some cognizable claim specific to Plaintiffs and without any allegation of
       damages as a result of the five alleged violations, the Court finds no grounds exist
       to award an injunction upon Count Three.

       {¶32} Additionally, the trial court concluded that “an injunction is not a proper way to

attempt to force a municipality to comply and enforce its code of ordinances. Instead, a party

must attempt to comply with its zoning code by a petition for a writ of mandamus.”

       {¶33} On appeal, Property Owners have not challenged the trial court’s basis for

dismissing count three as to Akron. See App.R. 16(A)(7). Accordingly, Property Owners have

failed to demonstrate that the dismissal of count three as to Akron was erroneous and we affirm

the dismissal as to Akron on that basis. See App.R. 16(A)(7); Pascual v. Pascual, 9th Dist.

Medina No. 12CA0036-M, 2012-Ohio-5819, ¶ 6 (noting it is an appellant’s duty to demonstrate

error on appeal).

       {¶34} With respect to the dismissal as to Lebo Holdings, LLC and Mr. Nemer, we

conclude that the trial court erred in granting judgment on the pleadings on count three because

Lebo Holdings, LLC and Mr. Nemer did not argue in their motion that Property Owners failed to

satisfy the elements necessary for injunctive relief. Generally, “[a] trial court cannot grant a

dispositive motion on grounds not raised by a moving party.” Mico Ins. Co. v. Orlando, 5th

Dist. Guernsey No. 15 CA 15, 2016-Ohio-193, ¶ 18; see also Clary v. Medina Twp. Bd. of
                                                 12


Trustees, 9th Dist. Medina No. 17CA0075-M, 2018-Ohio-2545, ¶ 15 (Carr, J., concurring in

judgment only). While Lebo Holdings, LLC and Mr. Nemer did argue that Property Owners

failed to state a claim upon which relief could be granted with respect to count three, the

argument they made was more in the nature of res judicata. They did not assert that Property

Owners’ count three failed to allege elements necessary to entitle them to injunctive relief.

Moreover, while Lebo Holdings, LLC and Mr. Nemer did join in Akron’s motion to

dismiss/motion for summary judgment, Akron’s argument concerning why Property Owners’

count three failed to state a claim was focused on the fact that it was a municipality and such

argument would not be applicable to Lebo Holdings, LLC and Mr. Nemer.

       {¶35} Lebo Holdings, LLC and Mr. Nemer additionally argue that the trial court erred in

failing to grant summary judgment on count three based upon res judicata. As noted above, the

trial court concluded that Akron, Lebo Holdings, LLC, and Mr. Nemer failed to meet their

burden to demonstrate that count three was barred. For reasons similar to those outlined in this

Court’s resolution of Property Owners’ first and second assignments of error, we conclude that

the trial court did not err. Lebo Holdings, LLC and Mr. Nemer failed to present sufficient

evidentiary materials demonstrating that count three could have been included in prior litigation.

See KNL Custom Homes, Inc., 2016-Ohio-5117, at ¶ 5.

       {¶36} Finally, Lebo Holdings, LLC and Mr. Nemer assert that the judgment was also

warranted because the statute of limitations barred count three. However, again as discussed

above, the trial court did not consider the merits of this issue, and, as a reviewing court, it is not

this Court’s role to do so in the first instance. See Anderson, 2018-Ohio-3936, at ¶ 32. Upon

remand, the trial court can consider the merits of the arguments it did not consider.
                                                13


       {¶37} Property Owners’ third assignment of error is sustained as to Lebo Holdings, LLC

and Mr. Nemer, but overruled as to Akron.

                                                III.

       {¶38} Property Owners’ first and second assignments of error are sustained. Property

Owners’ third assignment of error is sustained with respect to Lebo Holdings, LLC and Mr.

Nemer and overruled with respect to Akron. The judgment of the Summit County Court of

Common Pleas is affirmed in part, reversed in part, and the matter is remanded 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.




                                                  DONNA J. CARR
                                                  FOR THE COURT



SCHAFER, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

JEROME T. LINNEN, JR., Attorney at Law, for Appellants.

CLAIR E. DICKINSON, Attorney at Law, for Appellees.

JOHN R. YORK, Attorney at Law, for Appellees.

JAMES M. HENSHAW, Attorney at Law, for Appellees.

TANIA T. NEMER, Attorney at Law, for Appellees.
