[Cite as State ex rel. Marcum v. Florence Twp., 2017-Ohio-6916.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


State of Ohio, ex rel.                                     Court of Appeals No. E-16-029
Willie C. Marcum, et al.
                                                           Trial Court No. 2014-CV-0321
        Appellants

v.

Florence Township, et al.                                  DECISION AND JUDGMENT

        Appellees                                          Decided: July 21, 2017

                                                 *****

        David H. Cullis, for appellants.

        John D. Latchney, for appellee Florence Township.

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Gerhard R. Gross, Assistant Prosecuting Attorney, for
        appellee Board of Commissioners of Erie County.

                                                 *****

        OSOWIK, J.

        {¶ 1} Appellants, Willie and Millie Marcum, appeal the judgment of the Erie

County Court of Common Pleas, which awarded summary judgment in favor of
appellees, Florence Township and Erie County Commissioners (“Erie County”). For the

reasons that follow, we affirm.

                          I. Facts and Procedural Background

       {¶ 2} The underlying facts are not in dispute for purposes of this appeal. In 2009,

appellees jointly undertook a water drainage project. The project, which was conducted

on land adjacent to appellants’ property, resulted in a substantial increase in the flow of

water onto appellants’ property, rendering eight acres of appellants’ land unusable.

       {¶ 3} On April 6, 2012, in case No. 2012-CV-0246, appellants filed a complaint

against appellees alleging claims for negligence, inverse condemnation, and diminution

in value (“Marcum I”). On May 24, 2012, Erie County moved to dismiss the complaint,

arguing, among other things, that the appropriate relief was through a mandamus action.

On June 29, 2012, appellants filed an amended complaint in which they added a claim for

injunctive relief. On August 16, 2012, the trial court granted Erie County’s motion to

dismiss, in part. The trial court agreed with Erie County that appellants’ claims for

inverse condemnation, diminution in value, and injunctive relief must be brought in a

mandamus action. Thus, the court dismissed those claims without prejudice because “a

claim may be viable in Mandamus to compel initiation of an appropriation proceeding.”

The matter proceeded on appellants’ claim for negligence.

       {¶ 4} On February 20, 2013, Erie County moved for summary judgment on the

remaining claim of negligence. In a decision entered June 20, 2013, the trial court

granted Erie County’s motion, finding that Erie County was entitled to sovereign




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immunity. The trial court also addressed Erie County’s argument that summary

judgment was appropriate because there was no evidence of damages. The trial court

commented:

             First, this Court held in ruling on the Civ.R. 12(B)(6) Motion To

      Dismiss, that the viable remedy was an action in Mandamus to compel Erie

      County to initiate an Eminent Domain proceeding. * * * While this Court

      makes no ultimate determination whether that would prove successful,

      Plaintiffs did not pick up on this and file any such Mandamus Complaint.

      This Court is reluctant to further prejudice Plaintiffs’ ability to pursue a

      Mandamus claim by ruling Plaintiffs have no damages. (Internal citations

      omitted.)

In conclusion, the trial court ordered that “the claims against Erie County are DISMISSED

with prejudice.” (Emphasis added.)

      {¶ 5} Likewise, on April 19, 2013, Florence Township moved for summary

judgment on all of appellants’ claims, asserting the same arguments as Erie County. On

June 21, 2013, the trial court granted Florence Township’s motion. The trial court found:

             5. This Court has addressed all of these issues in Erie County’s

      Summary Judgment Motion and in the prior Civ.R. 12(B)(6) Motion To

      Dismiss filed by Erie County. This Court reiterates those findings and

      holdings here and incorporates them herein by reference (SEE Judgment

      Entry filed on or about June 20, 2013 @ 1:47 p.m.). * * * Therefore,




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       Florence Twp., just like Erie County is entitled to Sovereign Immunity.

       This Court, also previously dismissed on the pleadings, via Civ.R.

       12(B)(6), the diminution in value, inverse condemnation and injunctive

       relief counts.

              6. This Court incorporates the findings and holdings of those two

       prior decisions as if rewritten here.

As with Erie County, the trial court ordered that “the claims against Defendant Florence

Township Board of Trustees are DISMISSED with prejudice.” (Emphasis added.)

       {¶ 6} Appellants did not appeal the trial court’s June 20 or June 21, 2013

decisions. Instead, eleven months later, on May 24, 2014, appellants filed a complaint in

mandamus in case No. 2014-CV-0321 (“Marcum II”) based on the same events and

occurrences that were at issue in Marcum I. In their complaint, appellants sought to

compel appellees to initiate appropriation proceedings for the “taking” of appellants’

property. Appellees moved for summary judgment in Marcum II, arguing that

appellants’ claim was barred by res judicata.1

       {¶ 7} On April 13, 2016, the trial court granted appellees’ motions.

                                 II. Assignment of Error

       {¶ 8} Appellants have timely appealed the trial court’s April 13, 2016 judgment

entry, and now assert one assignment of error for our review:


1
 Appellees also argued that the action was barred by the statute of limitations, and Erie
County additionally argued that it was entitled to sovereign immunity.




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              1. In the first of two suits between the parties, the Trial Court’s

       dismissal of the inverse condemnation and lost value claims was based

       upon a determination that a mandamus action was required to raise these

       claims, and a mandamus action had not been pleaded. The dismissal of

       these counts was specifically stated in an initial Judgment Entry to be

       without prejudice. The language of the final Judgment Entries cannot

       reasonably be read to have changed the dismissal of these counts to

       dismissals with prejudice. Therefore the trial court erred in finding that the

       dismissals were with prejudice and applying res judicata to bar this suit.

                                       III. Analysis

       {¶ 9} We review the grant of a motion for summary judgment de novo, applying

the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d

127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d

102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate

where (1) no genuine issue as to any material fact exists; (2) the moving party is entitled

to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion,

and viewing the evidence most strongly in favor of the nonmoving party, that conclusion

is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio

St.2d 64, 66, 375 N.E.2d 46 (1978).

       {¶ 10} At issue in this case is whether appellants’ claim in Marcum II is barred by

the doctrine of res judicata. “The doctrine of res judicata encompasses the two related




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concepts of claim preclusion, also known as res judicata or estoppel by judgment, and

issue preclusion, also known as collateral estoppel.” O’Nesti v. DeBartolo Realty Corp.,

113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 6. “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.” Id. “Where a claim

could have been litigated in the previous suit, claim preclusion also bars subsequent

actions on that matter.” Id., citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653

N.E.2d 226 (1995). The Ohio Supreme Court has consistently applied res judicata to

mandamus claims. See, e.g., State ex rel. Mora v. Wilkinson, 105 Ohio St.3d 272, 2005-

Ohio-1509, 824 N.E.2d 1000, ¶ 15.

       {¶ 11} The doctrine of claim preclusion has been distilled to apply where four

elements are present: “(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; (4) both actions arise out of the

same transaction or occurrence.” State ex rel. Hensley v. City of Columbus, 10th Dist.

Franklin No. 10AP-840, 2011-Ohio-3311, ¶ 11. Here, the dispute centers largely on

whether there was a prior valid judgment on the merits.

       {¶ 12} Appellants argue that no prior valid judgment exists because the claims for

diminution in value and inverse condemnation were brought in Marcum I, and were

dismissed without prejudice. As part of their argument, appellants contend that the trial

court erred when it converted the dismissal of those claims without prejudice into a




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dismissal with prejudice in the June 20 and June 21, 2013 judgment entries in Marcum I.

We find this argument to be a red herring. The trial court’s June 20 and June 21, 2013

judgment entries recognized that the claims for diminution in value and inverse

condemnation were dismissed without prejudice. Nevertheless, this does not grant

appellants the opportunity to relitigate those claims in a mandamus action after a final

judgment had been entered in an action arising out of the same transaction or occurrence.

       {¶ 13} Appellants comment that their conduct in waiting to file the mandamus

action was in the interests of judicial economy in that they wanted to determine if they

were going to receive relief in Marcum I, and therefore not have to seek relief in Marcum

II. However, appellants’ actions are precisely the reason that the doctrine of claim

preclusion exists, in that it prevents the successive litigation of alternate theories of relief.

See Grava, 73 Ohio St.3d at 383, 653 N.E.2d 226, quoting Restatement of the Law 2d,

Judgments, Section 24, Comment a (1982) (“[I]n the days when civil procedure still bore

the imprint of the forms of action and the division between law and equity, the courts

were prone to associate claim with a single theory of recovery, so that, with respect to

one transaction, a plaintiff might have as many claims as there were theories of the

substantive law upon which he could seek relief against the defendant. Thus, defeated in

an action based on one theory, the plaintiff might be able to maintain another action

based on a different theory, even though both actions were grounded upon the

defendant’s identical act or connected acts forming a single life-situation. * * * The

present trend is to see claim in factual terms and to make it coterminous with the




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transaction regardless of the number of substantive theories, or variant forms of relief

flowing from those theories, that may be available to the plaintiff * * *; regardless of the

variations in the evidence needed to support the theories or rights.” (Emphasis sic.)).

       {¶ 14} In this case, the elements of claim preclusion are met. Both Marcum I and

Marcum II arise out of appellees’ conduct in performing the drainage project in 2009.

The parties in both actions are identical. The present action in Marcum II raises claims

that could have been raised, and indeed were attempted to have been raised, in Marcum I.

Finally, there was a final judgment on the merits in Marcum I in that the negligence

action was decided on summary judgment, and the time for appeal of that judgment has

run. Appellants had an opportunity in Marcum I to amend the complaint to include a

claim in mandamus, to file a new action in mandamus prior to the resolution of the

negligence claim and seek to consolidate the two actions, or to dismiss the negligence

claim and file a completely new action. Appellants did none of these, and instead waited

until they lost in Marcum I to file their claim in mandamus in Marcum II.

       {¶ 15} Therefore, we hold that the trial court did not err in determining that

appellants’ claims in Marcum II are barred by the doctrine of res judicata, and thus

summary judgment in favor of appellees is appropriate.

       {¶ 16} Accordingly, appellants’ assignment of error is not well-taken.




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                                     IV. Conclusion

       {¶ 17} For the foregoing reasons, the judgment of the Erie County Court of

Common Pleas is affirmed. Costs of this appeal are assessed to appellants pursuant to

App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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