[Cite as Slodov v. Mentor, 2019-Ohio-1052.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


LEONARD H. SLODOV, et al.,                       :      OPINION

                 Plaintiff-Appellant,            :
                                                        CASE NO. 2018-L-080
        - vs -                                   :

CITY OF MENTOR, et al.,                          :

                 Defendants-Appellees.           :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 2018 CV
000422.

Judgment: Affirmed.


Michael D. Slodov, Javitch Block LLC, 1100 Superior Avenue, 19th Floor, Cleveland,
OH 44114 (For Plaintiff-Appellant).

John T. Pion and Andrew D. Webster, Pion Nerone Girman Winslow & Smith, PC,
1500 One Gateway Center, 420 Fort Duquesre Boulevard, Pittsburgh, PA 15222 (For
Defendants-Appellees, Boldt Capital, LLC; Lake County Port and E.D. Authority; and
Lake Mentor Properties, LLC).

Carl E. Cormany and Frank H. Scialdone, Mazanec, Raskin & Ryder Co., L.P.A., 100
Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For Defendant-Appellee,
City of Mentor).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Leonard H. Slodov, appeals from the judgment of the Lake

County Court of Common Pleas, dismissing his complaint for declaratory judgment with

prejudice for lack of standing. Appellant does not dispute the trial court’s judgment that
he lacked standing to maintain the underlying action; rather, he maintains the trial court

erred in dismissing the same with prejudice. We affirm.

       {¶2}   Appellant originally filed his complaint pro se on behalf of himself and KDL

Real Estate, LLC, a company of which he is the owner and sole member, naming the

city of Mentor, Lake Mentor Properties, LLC, and Lake County Port and Economic

Authority as defendants. After realizing he could not maintain the action on behalf of

KDL without hiring counsel, he dismissed the company and filed an amended complaint.

The amended complaint dismissed KDL and added Lake Hospital Systems, Inc. and

Boldt Capital as defendants. As a matter of background, KDL owned property on Tyler

Blvd. in Mentor that it had leased to Lake Hospital, and in January 2017, Lake Hospital

did not renew its lease.

       {¶3}   The amended complaint alleged appellant was a concerned citizen,

Mentor taxpayer, and, as the owner of a KDL, a commercial lessor with Lake Hospital,

and, as such, he had a personal interest in the issues raised in the complaint. Appellant

asserted the real property on Tyler Blvd. was adversely affected by a municipal

ordinance which re-zoned property on Market Street in Mentor; he claimed that even

though the Tyler property was owned by KDL, he was the sole member of the company

and his income was diminished when Lake Health relocated to property on Market

Street after it was re-zoned.

       {¶4}   The ordinance described the property to be re-zoned then provided the

Market Street property be re-zoned to general business as approved by the Municipal

Planning Commission.       And, according to appellant, the ordinance was subject to

certain conditions; one of which is that it could be modified or supplemented by a




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Development Agreement (“DA”), entered into between the city of Mentor and various

other named defendants. The DA described the ultimate development of the Market

Street property and set forth various prohibited uses, one of which was a hospital.

       {¶5}   As a result of the foregoing, appellant sought a declaration that, inter alia,

(1) the Market Street property could not be used as a hospital open to the general

public, as this use violated the ordinance and the DA; (2) the Market Street property

was in fact being used as a hospital/urgent care business; (3) the current use of the

Market Street property was a prohibited use; (4) the lease for the Market Street property

was invalid and unlawful; (4) the ballot language for the re-zoning measure was

deceptive and failed to inform the public that it created a conflict of interest and allowed

for unfair economic advantage sanctioning the relocation of Lake Health to residential

land; (5) the defendants engaged in official misconduct amounting to a felony in

violation of R.C. 2901.13; and (6) the court refer the issues raised to the Lake County

prosecutor for investigation.

       {¶6}   Appellees filed motions to dismiss alleging, inter alia, appellant lacked

standing. The trial court agreed and dismissed the complaint. In its judgment entry, the

trial court determined that, to the extent appellant’s claims of damage were based upon

KDL’s diminished income, he failed to establish direct injury. The trial court further

determined that, to the extent appellant’s claims were brought as a taxpayer or a

concerned citizen for a violation of the DA, he lacked standing because he was not a

party to the agreement. The court additionally determined appellant’s claims for official

misconduct failed because R.C. 2901.13, a statutory section creating a tolling period for

the prosecution of an offense involving misconduct in office, does not define a criminal




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offense. Moreover, the court concluded the statute does not create a private right of

action. As such, the court concluded appellant failed to state a claim upon which relief

could be granted. Appellant now appeals and assigns the following as error:

      {¶7}   “The trial court committed prejudicial error in reaching the merits and

dismissing the complaint with prejudice after finding that appellant lacked standing to

maintain the action.”

      {¶8}   Appellant does not contest he lacked standing; instead, he claims the trial

court erred when it analyzed the merits of his misconduct claims in light of its standing

determination. He further maintains the trial court erred in dismissing the complaint with

prejudice because the conclusion that a party lacks standing is not a decision on the

merits.

      {¶9}   With respect to appellant’s first contention, the trial court did not find

appellant lacked standing to bring the official misconduct claim. Rather, the judgment

entry simply indicates that the statute upon which appellant relied to assert his official

misconduct claim does not create a private civil cause of action. A review of the statute,

which defines limitations on criminal prosecutions, supports the trial court’s judgment. A

statute of limitation setting forth a period for which a prosecution for “an offense

involving misconduct in office by a public servant,” see R.C. 2901.13(C), is not a vehicle

for a civil suit which generally alleges official misconduct. Appellant therefore failed to

state a claim upon which relief could be granted on this issue.

      {¶10} Next, we recognize that, in general, the dismissal of an action because a

party lacks standing is not a dismissal on the merits. State ex rel. Coles v. Granville,

116 Ohio St.3d 231, 2007-Ohio-6057, ¶51. This general rule is to avoid the application




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of the doctrine of res judicata in a subsequent suit where a standing defect is cured. Id.

citing A–1 Nursing Care of Cleveland, Inc. v. Florence Nightingale Nursing, Inc., 97

Ohio App.3d 623, 627 (8th Dist.1994) (dismissal for lack of standing “terminates the

action other than on the merits and affords proper parties the opportunity to refile

without fear of the effects of res judicata”); Asher v. Cincinnati, 1st Dist. Hamilton No.

C–990345, 2000 WL 955617 (Dec. 23, 1999) (dismissal for lack of standing is not on

the merits for purposes of res judicata).

       {¶11} In this case, appellant was not a party to the DA and was not a third-party

beneficiary to the same. Moreover, any alleged wrongful action by third parties to a

corporation creates a potential cause of action for the corporation, not its shareholders.

Adair v. Wozniak, 23 Ohio St.3d 174, 178 (1986). Appellant cannot, therefore, assert

the potential rights of KDL, the owner of the Tyler property, because his alleged injury is

indirect and duplicative of KDL’s alleged damages. See Id. Unless appellant is alleging

that, at some point, he will not be himself, a position he cannot seriously maintain, the

claims based upon alleged violations of the DA or purported injuries suffered by KDL

cannot be re-filed.     In short, appellant will invariably lack standing to assert the

foregoing claims and therefore the specter of a res judicata bar will never realistically

loom. We therefore conclude the trial court did not err in dismissing appellant’s claims

for declaratory judgment vis-à-vis his concerns surrounding the DA or his allegations

premised upon alleged damages suffered by KDL with prejudice.

       {¶12} Alternatively, if appellant is concerned about the potential preclusive effect

the lower court’s judgment might have on a future suit KDL might file, such concerns are

hypothetical and would require an improper advisory opinion. Assuming, arguendo,




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KDL files a similar action, the defendants raise the affirmative defense of res judicata

based upon the underlying judgment, and the trial court concludes KDL is barred from

litigating the issues by operation of res judicata. At that point, the issue of the propriety

of applying the doctrine will be properly before us. Currently, however, the foregoing

scenario is mere possibility and this court, in this matter, must refrain from engaging in

exploratory analysis based upon hypotheticals.

       {¶13} Appellant’s assignment of error lacks merit.

       {¶14} For the above reasons, the judgment of the Lake County Court of

Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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