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Res judicata does not doom Akron property dispute claim
TRACEY BLAIR
Legal News Reporter
Published: September 13, 2019
The 9th District Court of Appeals recently reversed a Summit County trial court’s opinion that authorized a developer to build a retail/apartment development in downtown Akron.
The property in dispute was four parcels of land at 795 West Market Street.
Appellants Brenda Denefield, American Legion, Inc. and Highland Square Management, Inc. owned property adjacent to the parcels.
According to court records, Manuel Nemer, managing partner of Lebo Holdings, LLC, submitted an application to the Akron City Planning Commission in 2013 seeking a conditional use permit to construct the development.
After the permit was approved, Highland Square Management filed an administrative appeal challenging it. For instance, 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 argued this was an improper rezoning of the parcels without an application for a variance.
Then, Highland Square Management filed a civil action seeking an injunction related to construction and use of the parcels. That civil action was later consolidated with the administrative appeal.
The trial court dismissed the administrative appeal with prejudice, finding Highland Square Management failed to serve Akron City Council or Akron City Planning Commission. The injunction action was also dismissed with prejudice.
Highland Square appealed the judgment and the 9th District affirmed.
In 2015, the property owners filed a new complaint against Lebo Holdings, Nemer and Akron governmental entities seeking a declaratory judgment finding Ordinance No. 186-201 – which authorized the development – to be unlawful.
The property owners argued Akron erred in approving the conditional use petition when there was “no compliance with numerous mandatory procedural requirements.” They also alleged that Akron, Nemer and Lebo Holdings intended to create a public alley or road on the residential parcels without following the proper notice requirements.
The property owners voluntarily dismissed that action, but then followed the instant action against Akron, Lebo Holdings and Nemer in August 2016.
The instant complaint included the allegation 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 its answer, Akron and the other appellees raised the defense of res judicata on all three claims.
In the first claim, the property owners demanded a declaratory judgment that the conditional use ordinance was void because it illegally creates an alley over residential parcels.
The second claim alleged the defendants failed to comply with notice requirements under Ohio R.C. 723.09 and 723.10.
The third claim alleged that Lebo Holdings and Nemer failed to comply with some of the conditions outlined in the ordinance to complete the work as per drawings and site plans approved by the city of Akron.
The trial court found that the first two counts of the property owners’ complaint were barred by res judicata.
However, the trial court ruled count three was not barred by res judicata because the property owners failed to allege the elements necessary for injunctive relief. The trial court also found an injunction was not an appropriate way to force a municipality to comply with its code of ordinances.
On appeal, the property owners argued the trial court committed prejudicial error in granting the defendants’ motion for summary judgment on the first two counts.
The appellate court agreed.
“It is true that issues related to the conditional use of the parcels have been previously litigated,” 9th District Judge Donna J. Court wrote in her opinion. “However, the current focus of counts one and two of the instant litigation is an alley.
“… In the filings submitted in support of the motions for summary judgment, an alley is scarcely mentioned, let alone detailed.”
Therefore, the appellate panel found it was Akron’s, Lebo Holding’s and Nemer’s burden to demonstrate the absence of a genuine issue of material fact regarding res judicata, and they failed to meet that burden.
The property owners’ first and second assignments of error were sustained. The third assignment of error was sustained as to Lebo Holdings and Nemer and overruled as to Akron.
Appellate judges Julie Schafer and Jennifer Hensal concurred.
The case is cited Denefield v. Akron, 2019-Ohio-3249.