COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68137 STEVE TSAKALOS, ET AL. : : JOURNAL ENTRY Plaintiff-Appellees : : AND vs. : : OPINION EDWIN KRAUS, ET AL. : : Defendant-Appellees : : vs. : : CITY OF PARMA : : Third-Party Defendant-Appellant: DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court case No. CV-258155 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellees IRWIN S. HAIMAN Steve and Vicky Tsakalos: JEFFREY A. HUTH 1800 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115 For Appellee Edwin Krause: JONATHAN J. GATZ GEORGE R. ORYSHKEWYCH 5566 Pearl Road Parma, Ohio 44129-2541 For Appellees Century 21, S. ROBERT E. LAZZARO et al: 13317 Madison Avenue Lakewood, Ohio 44107-4814 For Third-Party Defendant WILLIAM D. MASON Appellant City of Parma: Law Director 6611 Ridge Road Parma, Ohio 44129 - 2 - O'DONNELL, J.: Appellant City of Parma appeals the trial court's decision that appellee Steve Tsakalos' use of the rear structure at 7566 York Road as a two-family dwelling is a nonconforming use. For the following reasons, we affirm. On August 31, 1990 Edwin Krause purchased the parcel of real estate located at 7566 York Road in Parma, Ohio, containing a single family dwelling in the front and a two-family rental property in the rear. After attempting unsuccessfully to rezone the property or obtain a variance, Krause offered it for sale. On January 20, 1993, Steve Tsakalos purchased the property from Krause, in part based upon representations from Century 21, Bruce Trammel & Associates, Inc., George Filippakis, DePiero & Associates, and Dale Anderson acting as agents for Krause in the transaction that it was income-producing property. In both April and May of 1993, the Building Commissioner for the City of Parma issued a cease and desist order precluding Tsakalos from renting the two-family dwelling. On September 15, 1993, appellee Tsakalos filed a complaint against Edwin Krause, Century 21 Realty, DePiero and Associates, Bruce Trammel and Associates, George Filippakis, and Dale Anderson, alleging defendants fraudulently misrepresented the property as income property to his financial detriment. On March 11, 1994, Edwin Krause filed a third-party complaint against the - 3 - City of Parma alleging selective enforcement of ordinances, denial of use without due process, and seeking damages to compensate for losses. A journal entry by the court dated May 19, 1994 stated: P.T. held. Parties to file brief on issue of Parma Zoning Ordinance as it applies to Plaintiff's property 6-20-95. P.T. set 6-24-94 at 9:00. Thereafter all parties briefed the matter and the court entered the following docket entry on August 4, 1994. P.T. held 8/3/94. Counsel for Parma by telephone conference call. All other parties present. The issue of non-conforming use to be decided on the briefs. All briefing on the issue have been submitted to the court. *** (Emphasis added) On August 17, 1994, the trial court filed its opinion and judgment entry which ruled that the City of Parma did not support its challenge to the assertion by the landowner plaintiff that the nonconforming use was a lawful use of the property which existed before the enactment of the zoning ordinance of May 4, 1931. The Court found the rear structure to be a nonconforming use and ruled that Tsakalos could continue to use the property as a two-family rental property. Thereafter, the court held additional pretrials and settlement conferences, and on October 13, 1994, the court settled and dismissed the case with prejudice. Although it had presented no affirmative claim for relief and claims filed against the city have been dismissed, the City - 4 - of Parma has now appealed the court's determination of nonconforming use and assigns four errors for review. I. WHETHER THE TRIAL COURT ERRED BECAUSE IT WAS WITHOUT JURISDICTION TO RULE ON THE ISSUE OF NON-CONFORMING USE BASED ON THE DOCTRINE OF ADMINISTRATIVE RES JUDICATA. Appellant claims the trial court erred when it ruled on the issue of nonconforming use because it lacked jurisdiction based on the doctrine of administrative res judicata. Appellee believes that the defense of administrative res judicata has been waived for purpose of appeal because the parties did not raise it in the pleadings. The issue for this court, then, is whether the trial court erred when it ruled on the issue of nonconforming use because it lacked jurisdiction based on the doctrine of administrative res judicata. Under Ohio Civ.R. 8(C), res judicata is an affirmative defense which must be set forth in the pleadings. See Struzynski v. Borden Chemical Div., Borden, Inc. (1989), 57 Ohio App.3d 118, 120. Failure to plead an affirmative defense waives such defense. See Mossa v. W. Credit Union, Inc. (1992), 84 Ohio App.3d 177. In this case, a review of the pleadings reveals that the City of Parma did not raise the affirmative defense of res judicata in either its answer or in its brief to the trial court. - 5 - As such, the defense has been waived and this assignment of error is without merit. - 6 - II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHEN NO DISPOSITIVE MOTION HAD BEEN FILED BY ANY PARTY AND THERE WAS NO AGREEMENT BY THE PARTIES TO ALLOW THE TRIAL COURT TO DISPOSE OF THE CASE ON BRIEFS. The record in this case reveals that agreement did exist between the parties to allow the trial court to dispose of the case on briefs. First, the May 19, 1994 journal entry of the court stated, in relevant part, "Parties to file brief on issue of Parma Zoning Ordinance as it applies to Plaintiff's property." Thereafter, all parties, including the City of Parma, did file briefs on this issue with the trial court. Further, the August 4, 1994 journal entry of the court stated, in relevant part, "The issue of nonconforming use to be decided on the briefs." The record and journal entries of the court do not reflect any objection on the record to the trial court deciding this issue on the briefs submitted. The City of Parma acquiesced when it filed a brief, and has not preserved any basis to now challenge the procedure established in the trial court for resolution of this matter. The argument of the City of Parma that no agreement existed between the parties is contradicted by the docket entries in this case. Accordingly, we find no merit in this assignment of error. - 7 - III. WHETHER THE TRIAL COURT'S JUDGMENT IS AN ABUSE OF DISCRETION. The Ohio Supreme Court set forth the standard for reviewing this issue in Rock v. Cabral (1993), 67 Ohio St.3d 108, at 112: The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, ***" In this case, the court's action in deciding the issue of non-conforming use on briefs submitted by all parties, with evidentiary materials attached for the court's review, cannot be considered unreasonable, arbitrary, or unconscionable. The parties were accorded procedural due process and advised by journal entry render date of August 4, 1994 that the court planned to decide the issue on briefs. Each submitted a brief to the court, which considered the matter and prepared a four-page opinion and entry. The trial court therefore did not abuse its discretion in deciding this issue in this manner. This assignment of error is overruled IV. WHETHER A MUNICIPAL CORPORATION HAS SOVEREIGN IMMUNITY IN ITS DISCRETIONARY DECISIONS AND CANNOT BE HELD LIABLE FOR DENYING A REZONING REQUEST OR REQUEST FOR A NONCONFORMING USE STATUS. The trial court in this case did not determine liability against the City of Parma nor award any damages. The only - 8 - affirmative claim seeking relief against the City of Parma was dismissed as part of the settlement agreement reached between and among the appellees. Accordingly, the issue of sovereign immunity is not properly presented to the court. Since liability is not at issue, we decline to address this assignment of error and it is therefore dismissed. See Egan v. National Distillers & Chemical Corp. (1986), 25 Ohio St.3d 176, 177. The judgment of the trial court is affirmed. - 9 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, C.J., and SPELLACY, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- .