[Cite as Brunswick Hills Twp. Bd. of Trustees v. Ludrosky, 2012-Ohio-2556.]


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

BRUNSWICK HILLS TOWNSHIP                                   C.A. No.           11CA0026-M
BOARD OF TRUSTEES

        Appellee/Cross-Appellant
                                                           APPEAL FROM JUDGMENT
        v.                                                 ENTERED IN THE
                                                           COURT OF COMMON PLEAS
THOMAS LUDROSKY, et al.                                    COUNTY OF MEDINA, OHIO
                                                           CASE No.   10CIV0032
        Appellants/Cross-Appellees

                                 DECISION AND JOURNAL ENTRY

Dated: June 11, 2012



        MOORE, Presiding Judge.

        {¶1}    Appellants, Thomas and Kimberly Ludrosky, appeal from the judgment of the

Medina County Court of Common Pleas.                Appellees, Brunswick Hills Township Board of

Trustees, cross-appeal. This Court reverses.

                                                      I.

        {¶2}    Appellants, Thomas and Kimberly Ludrosky (collectively the “Ludroskys”) own

and reside on property in Brunswick Hills Township in Medina County, Ohio. The property is

subject to the zoning resolutions of Brunswick Hills Township.                     Ms. Ludrosky owns

Timberwolf, Inc., which provides crane services to individuals and contractors. The Ludroskys

own two cranes for use in the business. When they are not in use, the cranes are stored in a pole

barn on the Ludroskys’ property.

        {¶3}    Edwin and Linda Sholtis (collectively the “Sholtises”) live next to the Ludroskys.

In July 2008, the Sholtises contacted the Brunswick Hills Township Zoning Inspector alleging
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that the Ludroskys were conducting a business from their home in violation of the township’s

zoning resolution. On February 4, 2009, the inspector issued a determination letter finding that

the Ludroskys were not conducting a business from their home. The Sholtises appealed to the

Brunswick Hills Township Board of Zoning Appeals (the “BZA”). Following a public hearing, a

decision was issued on July 15, 2009, declaring that an illegal business operation was being run

from the Ludroskys’ property. The decision instructed the zoning inspector to take all necessary

and appropriate action to terminate the business operation. On August 10, 2009, pursuant to

R.C. 2506.01, the Ludroskys filed a notice of appeal in the Medina County Court of Common

Pleas challenging the decision of the BZA. However, the Ludroskys failed to file a praecipe

requesting that the BZA prepare the record and transcript of the proceedings as required by R.C.

2506.02. As a result, the Medina County Court of Common Pleas dismissed the Ludroskys’

appeal.

          {¶4}    On January 7, 2010, Appellee Brunswick Hills Township Board of Trustees (the

“Board”) filed a complaint for preliminary and permanent injunctive relief to restrain the

Ludroskys from continuing to use their property in violation of the zoning resolution. After

several hearings, the parties agreed to submit the case to the court on stipulated facts, evidence

and documents in support of each party’s proposed findings of fact and conclusions of law. On

March 3, 2011, the trial court entered an order granting the permanent injunction and ordering

the Ludroskys to “cease to store, park, or place any cranes or other construction equipment” on

their property.

          {¶5}    The Ludroskys timely filed a notice of appeal. They raise two assignments of

error for our review. The Board timely filed a notice of cross-appeal, and raises one assignment

of error for our review. We will address the cross-appeal first to facilitate our review.
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                                                II.

                       CROSS-APPEAL ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT
       RULING ON WHETHER THE LUDROSKYS WERE PRECLUDED FROM
       RELITIGATING THE ISSUE OF WHETHER STORING CRANES ON THEIR
       RESIDENTIAL PROPERTY WAS AN IMPERMISSIBLE BUSINESS
       ACTIVITY.

       {¶6}    As a preliminary note, we will address the Board’s assignment of error on cross-

appeal. The Board contends that the trial court erred by not ruling on its argument that the

Ludroskys were precluded from relitigating the issue of whether storing cranes on their property

was an impermissible business activity. We disagree.

       {¶7}    The Board acknowledges that “[t]he grant or denial of an injunction is solely

within the trial court’s discretion and, therefore, a reviewing court should not disturb the

judgment of the trial court absent a showing of a clear abuse of discretion.” Garona v. State, 37

Ohio St.3d 171, 173 (1988). See also Peroz v. Nagel, 9th Dist. No. 22047, 2004-Ohio-5179, ¶

12). However, because the applicability of res judicata is a question of law, we utilize a de novo

standard of review. Ohio Patrolmen’s Benevolent Assn. v. Munroe Falls, 9th Dist. No. 23898,

2008-Ohio-659, ¶ 13, citing Payne v. Cartee, 111 Ohio App.3d 580, 586-87 (4th Dist.1996).

       {¶8}    This Court has stated that “[t]he doctrine of res judicata provides that ‘[a] valid,

final judgment rendered upon the merits bars all subsequent actions based upon any claim arising

out of the transaction or occurrence that was the subject matter of the previous action.”’ Perrine

v. Patterson, 9th Dist. No. 22993, 2006-Ohio-2559, ¶ 22, quoting Grava v. Parkman Twp., 73

Ohio St.3d 379 (1995), syllabus. Res judicata applies to administrative actions, where a party

has failed to properly appeal the administrative ruling under R.C. 2506.01. Green v. Akron, 9th

Dist. Nos. 18284, 18294, 1997 WL 625484 (Oct. 1, 1997). Here, Ludrosky attempted to appeal
                                                4


to the court of common pleas pursuant to R.C. 2506.01, but it was dismissed for failing to file a

praecipe requesting that the BZA prepare the record and transcript of the proceedings as required

by R.C. 2506.02. The doctrine of res judicata also applies to situations where the BZA files a

complaint for injunctive relief due to alleged failures to comply with zoning ordinances. See

Prairie Twp. Bd. of Trustees v. Ross, 10th Dist. No. 03AP-509, 2004-Ohio-838, ¶ 14 (barring the

appellant from raising issues that should have been raised in an appeal from the BZA’s decision

pursuant to R.C. 2506). Thus, the doctrine of res judicata may be argued in the present case.

       {¶9}    The doctrine of res judicata includes the concepts of issue preclusion (collateral

estoppel) and claim preclusion. Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations

Bd., 81 Ohio St.3d 392, 395 (1998). The concept of issue preclusion has been described as

follows:

       [A] fact or a point that was actually and directly at issue in a previous action, and
       was passed upon and determined by a court of competent jurisdiction, may not be
       drawn into question in a subsequent action between the same parties or their
       privies, whether the cause of action in the two actions be identical or different.

Fort Frye, 81 Ohio St.3d at 395. See also Rehoreg v. Stoneco, Inc., 9th Dist. No. 04CA008481,

2005-Ohio-12, ¶ 10.

       {¶10} There are two types of issue preclusion. Offensive use of issue preclusion “occurs

when the plaintiff seeks to foreclose the defendant from litigating an issue [that] the defendant

has previously litigated unsuccessfully in an action with another party.” Parklane Hosiery Co.,

Inc. v. Shore, 439 U.S. 322, 326 (1979), fn. 4. Defensive use of collateral estoppel occurs when

a defendant seeks to prevent a plaintiff from asserting a claim that the plaintiff has previously

litigated unsuccessfully in another action. Id. Here, the Board is attempting to use the doctrine

offensively.
                                                5


       {¶11} The burden of pleading and proving the identity of issues rests on the party

asserting the issue preclusion. Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193,

198 (1983), citing Hernandez v. Los Angeles, 624 F.2d 935 (9th Cir.1980).              Also, issue

preclusion can only be applied against parties who have had a prior “full and fair” opportunity to

litigate their claims. Goodson, 2 Ohio St.3d at 198 quoting C.A. Hardy v. Johns-Manville Sales

Corp., 681 F.2d 334, 338 (5th Cir.1982).

       {¶12} The Board contends that the trial court should have been precluded from deciding

the issue of whether the storage of the cranes on their property was an impermissible business

activity because it was already litigated before the BZA. Although the doctrine of res judicata

may be raised in this context, the question here is whether this fact “was actually and directly at

issue in [the] previous action” and whether Ludrosky was afforded “full and fair” opportunity to

litigate the claims. Fort Frye, 81 Ohio St.3d at 395; Goodson, 2 Ohio St.3d at 198.

       {¶13} In the previous action, the BZA framed the issue before it as whether an illegal

business was being run from the Ludroskys’ property.       The evidence presented at the hearing

included the use of the residence address as the address for the business, business calls conducted

on the property, the storage of business documents on the property, and the maintenance and

storage of the cranes on the property. The BZA determined that an illegal business operation

was being run from the property, and ordered the inspector to cite the Ludroskys and take all

necessary and appropriate action to terminate the operation of such business. Conversely, the

issue framed by the Board in this action is whether storage of the cranes alone constitutes an

impermissible business activity. In addition, the trial court’s decision orders the Ludroskys to

cease to store, park, or place any cranes or other construction equipment on their property,

regardless of whether the use is related to business or personal activities. We conclude that this
                                                 6


action for injunctive relief reaches beyond the scope of the issues previously litigated, and thus,

issue preclusion does not apply. Accordingly, the trial court did not err in failing to accept the

Board’s position on issue preclusion.

       {¶14} The Board’s assignment of error on cross-appeal is overruled.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ISSUING
       AN INJUNCTION AGAINST THE LUDROSKYS.

       {¶15} In their first assignment of error, the Ludroskys argue that the trial court erred and

abused its discretion by issuing an injunction against them. We agree.

       {¶16} R.C. 519.24 authorizes a township board of trustees to seek an injunction

enjoining a landowner from violating the township’s zoning resolution. To prevail, the Board

must show, by clear and convincing evidence, that the defendant is using his or her property in

violation of a zoning ordinance. Azar v. Baughman, 9th Dist. No. 8686, 1978 WL 215229 (June

21, 1978). Once a violation is established, “[t]he decision to grant or deny an injunction is solely

within the discretion of the trial court,” and will not be reversed absent an abuse of discretion.

Bd. of Trustees of Columbia Twp. v. Albertson, 9th Dist. No. 01CA007785, 2001 WL 1240135,

*4 (Oct. 17, 2001), citing Danis Clarkco Landfill Co. v. Clark Cty. Waste Mgt. Dist., 73 Ohio

St.3d 590 (1995), paragraph three of the syllabus.

       {¶17} The Brunswick Hills Township Zoning Resolution defines a “home occupation”

as “[a]n accessory use conducted for intended financial gain within a dwelling where such use is

clearly incidental and secondary to the use of the dwelling for residential purposes.” The zoning

resolution divides home occupations into two classes.        “Class I Home Occupation[s]” are

permitted uses under the resolution. A home occupation is considered “Class I” so long as:
                                               7


        1. It is conducted entirely within the residence dwelling; however, this does not
           include the garage;
        2. The usage does not occupy more than twenty percent (20%) of the living floor area;
        3. The home occupation does not require the visitation or solicitation of clients,
           continuous or frequent motor freight delivery of materials or removal of products,
           outdoor advertising, or display of products or services produced on the premises; and
        4. No activity associated with the home occupation is to be visible from any public
           right-of-way or adjacent property[.]

A “Class II Home Occupation” is defined as “any home occupation which does not conform to

the requirements for a “Class I Home Occupation.”          “Class II Home Occupation[s]” are

conditionally permitted uses for which the BZA may issue conditional zoning certificates.

However, the “proposed use shall not constitute primary or incidental storage of facilities for a

business, industrial, or agricultural activity conducted elsewhere.” It is undisputed that the

Ludroskys were never granted a Class II Home Occupation certificate.

       {¶18} First, we must determine whether the Ludroskys’ use constitutes a home

occupation, specifically, whether there was “[a]n accessory use conducted for intended financial

gain within a dwelling” which then requires classification. The trial court’s findings of fact

acknowledge that the Ludroskys run a service which provides cranes to building contractors.

The cranes are driven to the building sites by Mr. Ludrosky, and each night are returned to a

garage on the Ludroskys’ property. The trial court concluded that “[t]here is no doubt that the

Ludroskys are running a business and there is no doubt that there is not another address for the

business.” The court further noted that the Ludroskys “are running a business out of their home,

a business which involves contact with customers, billing, maintaining equipment, and storing

equipment. Clearly their activity is far more than just parking cranes overnight.” We are

mindful that the trial court had the opportunity “to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the credibility
                                                 8


of the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).

Nonetheless, we conclude that the trial court misapplied the facts to the law.

       {¶19} In Wooten v. Neave Twp. Bd. of Zoning Appeals, 150 Ohio App.3d 56, 2002-

Ohio-5992 (2d Dist.), a zoning board determined that Wooten, who housed two dump trucks in a

barn he built on his property, had a home occupation. Wooten operated a sole proprietorship.

Each day, he drove his truck to a location to haul gravel and stone to various customers. At the

end of the day, he drove his truck back to his barn and parked it. The court acknowledged that

Wooten did not contact customers from his home, and no customers visited there. He did not

advertise, nor did he haul materials to his home for resale. He did do bookkeeping for the

business at home, and occasionally performed routine maintenance. He even hired a second

employee, who drove to his home each morning, and followed him to haul gravel and stone to

customers as well. The employee returned the truck to Wooten’s home each evening. The

Second District affirmed the decision of the trial court and held that “the trucks were merely used

to commute to work, much as one would use an employer-owned vehicle for commuting

purposes.” Id. at ¶ 16. The court found “nothing about this activity that would lead to the

conclusion that a ‘home occupation’ was involved.” Id.

       {¶20} In Miller v. Frye, 5th Dist. No. CA-8862, 1992 WL 238505 (Aug. 31, 1992), a

zoning inspector sought to permanently enjoin Frye from parking his semi tractor-trailer on his

premises located in a residentially zoned area. Frye owned the truck and used it to deliver loads

for a trucking company. His tax returns indicated that he had a sole proprietorship. Typically,

Frye would call into the trucking company each afternoon to see if it had a job for him the

following day. If so, he would drive his truck from his home to pick up a load, and then deliver

it to another location prior to returning home and parking his truck at the end of the day. The
                                                 9


court noted that he did not have a business phone at his residence, nor did he advertise from

there. The trial court “found as a matter of law that the parking of [Frye’s] income-producing

vehicle on his residential property was not equivalent to using his premises for business

purposes.” Id. at *2. On appeal, the inspector argued that Frye’s tax filings indicated that he

operated a sole proprietorship located at his home address. The Fifth District stated that “such

evidence is not conclusive in demonstrating that [Frye] was using his residential premises for

business purposes. * * * Instead, the evidence demonstrates that [he] was an owner of a semi

tractor-trailer and used the same to earn a living. The mere fact that [Frye] parked this income-

producing truck on his residential property during non-income producing hours does not, without

more, establish that [he] was operating a trucking business from his home.” Id. at *2-3. The

court further held that Frye’s tax deductions for the use of the truck in his business, and the fact

that he named his home address as the business address, did not establish that he was in violation

of the zoning ordinance.

       {¶21} In the case at hand, the trial court focused on the fact that the Ludroskys’ use of

the property included “contact with customers, billing, maintaining equipment, and storing

equipment.” Based on prior precedent, “the mere parking of a commercial vehicle on residential

property, without conducting any activity of the business on that property, does not amount to a

business practice.” Kiracofe v. Ketcham, 3d Dist. No. 1-05-19, 2005-Ohio-5271, ¶ 18, citing

Wooten at ¶ 12-16. Furthermore, in Wooten, the performance of bookkeeping for the business at

home, and the occasional routine maintenance did not amount to a home occupation. Likewise,

the phone calls with the trucking company in Frye, and the fact that the residence was listed as

the business address, was not equivalent to using the residence for business purposes. The Board

stresses that this situation is factually distinct from those cases, particularly in light of the
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cumulative effect of the storage of the cranes, the occasional calls conducted on the property, the

storage of business documents, and the occasional use of the residence as a business address.

However, in Wooten, even the fact that a second employee was hired and arrived at the residence

every day to assist with the hauling did not amount to business activity. In Frye, the defendant

made routine phone calls to inquire about trucking jobs, rather than occasional calls to

customers. He also listed the residence as the business address for tax purposes, whereas the

Ludroskys have utilized a post office box the majority of the time. Accordingly, we conclude

that the Ludroskys’ use of the property to store the cranes, and occasional phone calls and

bookkeeping, does not amount to “[a]n accessory use conducted for intended financial gain

within a dwelling.”

       {¶22} We conclude that the trial court erred in finding that the Ludroskys’ use of the

property constituted a home occupation, and, thus, abused its discretion in granting the

permanent injunction. Accordingly, the Ludroskys’ first assignment of error is sustained.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ISSUING
       AN OVERLY BROAD INJUNCTION PROHIBITING PERMITTED
       ACTIVITIES.

       {¶23} In their second assignment of error, the Ludroskys argue that the trial court erred

by issuing an overly broad injunction prohibiting permitted activities. However, in light of our

disposition of their first assignment of error, we decline to address this second assignment of

error as it is rendered moot. See App.R. 12(A)(1)(c).
                                                11


                                                III.

       {¶24} The Ludroskys’ first assignment of error is sustained. We decline to address their

second assignment of error, as it is rendered moot. The Board’s assignment of error on cross-

appeal is overruled. The judgment of the Medina County Court of Common Pleas is reversed.

                                                                              Judgment reversed.




       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 Medina, 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.

       Costs taxed to Appellee/Cross-Appellants.




                                                       CARLA MOORE
                                                       FOR THE COURT



BELFANCE, J.
CONCURS.
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CARR, J.
DISSENTING.

       I respectfully dissent because I agree with the trial court’s conclusion, based on its

findings of fact, that the Ludroskys were operating a business from their home. Therefore, I

would further address the Ludroskys’ second assignment of error but overrule it because I would

conclude that the injunction was not overly broad. Based on this resolution of the Ludroskys’

appeal, I would decline to address the Board’s cross-appeal as it has been rendered moot. See

App.R. 12(A)(1)(c). Accordingly, I would affirm the trial court’s judgment.


APPEARANCES:

JOSEPH R. SPOONSTER, III, Attorney at Law, for Appellants/Cross-Appellees.

DEAN HOLMAN, Prosecuting Attorney, and DAVID J. FOLK, Assistant Prosecuting Attorney,
for Appellee/Cross-Appellant.
