COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68456 and 68506 JIM'S STEAK HOUSE, ET AL. : : Plaintiff-appellees : [Case No. 68506] : Plaintiff-appellants : [Case No. 68456] : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF CLEVELAND : : Defendant-appellant : [Case No. 68506] : Defendant-appellee : [Case No. 68456] : : DATE OF ANNOUNCEMENT : MARCH 7, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-226274 JUDGMENT : VACATED AS TO CASE NO. 68506; MOOT AS TO CASE NO. 68456. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellees: For defendant-appellant: MICHAEL A. SCHROEDER, ESQ. SHARON SOBEL-JORDAN, DIRECTOR OF 900 Bond Court Bldg. LAW 1300 East Ninth Street CHARLES E. HANNAN, JR., ESQ. Cleveland, OH 44114 Assistant Director of Law Room 106, City Hall CHRISTOPHER M. DEVITO, ESQ. 601 Lakeside Avenue 400 Burgess Bldg. Cleveland, OH 44114 1406 West 6th Street Cleveland, OH 44113 BETTY MONTGOMERY, ATTORNEY GENERAL RICHARD J. MAKOWSKI, ESQ. Assistant Attorney General LAUREN M. ROSS, Chief Trans. Sec. 615 West Superior Avenue Cleveland, OH 44113 - 3 - PATTON, J. Plaintiff Jim's Steak House ("Jim's") is a restaurant located on Scranton Road along the Cuyahoga River in a section of defendant-appellant city of Cleveland known as the Flats. Jim's property is located near, but does not abut, the Eagle Avenue bridge. The bridge provides convenient, but not exclusive access to downtown Cleveland. In May 1987, the city unexpectedly closed the bridge for immediate repairs. The bridge did not reopen to traffic until December 1993. In 1988, Jim's brought an action against the city, alleging the bridge closure interfered with its business. The trial court dismissed that action for failure to state a claim upon which relief could be granted. We affirmed the dismissal in Jim's Steak House v. Cleveland (Dec. 19, 1991), Cuyahoga App. No. 59590, unreported. Jim's and its principal owner, plaintiff Raymond Rockey, then filed this action against the city, seeking damages for lost profits allegedly sustained due to the city's negligence in failing to complete the repairs in a more timely fashion. In addition, the complaint alleged the continued closing of the bridge created a nuisance and constituted a pro tanto taking of Jim's property. The trial court overruled the city's motions to dismiss and for summary judgment. A jury heard the claims and awarded Jim's $83,000 and Rockey $400,000 for lost rent, salary and investment. The trial court overruled the city's motions for a new trial or - 4 - judgment notwithstanding the verdict. The court also denied Jim's motion for prejudgment interest. The city appeals from the jury verdict in Case No. 68506; Jim's appeals from the court's refusal to grant prejudgment interest in Case No. 68456. The Eagle Avenue Bridge is one of several lift bridges in the Flats. The bridge has two towers which contain pulleys and counterweights. The pulleys use axles known as trunions located near the top of the towers to lift the road surface and permit river traffic to pass. As early as 1985, the city began drafting plans to repair various problems with the bridge. However, in early 1987, the city received notice of problems with lift bridges similar in design and age to the Eagle Avenue Bridge. A lift bridge in Michigan failed due to a pulley malfunction. Safety inspectors found the only evidence of possible pulley malfunction was minute cracking in the trunions. Inspectors examined the Eagle Avenue bridge and saw such extensive cracking they believed collapse could be imminent. The city immediately raised the bridge (to accommodate river traffic that had priority under Federal law) and closed it to vehicular traffic. City engineers began work on redrafting the previously prepared plans to incorporate repairs to the trunions. The revised plans called for repairs to be completed in four phases. Phase one of the revised plan called for a complete closing of the bridge, with the expectation it would reopen to - 5 - vehicular traffic in October 1988. The remaining three phases would be completed with limited vehicular traffic permitted. Although the city knew the trunions were in need of repair and drafted the plan accordingly, it soon became apparent the city's revised plan would not be completed on schedule due to unanticipated defects exposed as workers dismantled portions of the bridge. City engineers discovered the towers supporting the pulley mechanism were misaligned and would have to be realigned before the lift could operate. These newly discovered defects necessitated ongoing revisions with the plans and the submission process for those plans. Because the city used federal funds to make the repairs, it first submitted design changes to the Northeast Ohio Regional Coordinating Agency (NOACA). NOACA acted as an intermediary between the city and the federal government. Next, the plans were forwarded to the Ohio Department of Transportation (ODOT). ODOT approved the final plans in February 1990, at which time it assumed responsibility for completing the project, and the city's involvement with the project ended. I In its first assignment of error, the city maintains the trial court erred by denying its motion to dismiss Jim's complaint on grounds of res judicata. It claims the prior dismissal of this action pursuant to Civ.R. 12(B)(6) constituted an adjudication on - 6 - the merits and precluded relitigation of all issues that were or could have been brought. Jim's previously filed this action on July 22, 1988, in Common Pleas No. 153556. The complaint stated: "6. Defendants failed to provide other reasonable means of access to the plaintiffs restaurant concurrent with, or subsequent to, the closing of the Eagle Avenue bridge. 7. Due to the conduct of the defendants, the general public does not have easy or reasonable access to the plaintiffs restaurant. 8. Plaintiffs have learned or have reason to believe that the defendants will continue with this course of conduct for an indefinite period of time in the future. 9. The defendants' conduct has created a severe loss or interference with the plaintiffs' business in excess of $50,000 per year, and other attendant damages." The city filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6) on grounds the complaint failed to give it fair notice of the allegations against it. Jim's argued the complaint set forth facts sufficient to alert the city to causes of action sounding in negligence, taking or nuisance. The trial court dismissed the action and we affirmed in Jim's Steak House v. Cleveland, supra. We found the four corners of the complaint failed to state facts sufficient to constitute the elements of negligence, taking or nuisance. Id., unreported at 4. Jim's filed the instant complaint, this time making specific claims for negligence (both statutory and common-law), nuisance and taking. The city raised res judicata as an affirmative defense in - 7 - its answer to the complaint, but did not make it the subject of a motion until it filed its first motion in limine on the first day of trial. The trial court denied the motion. The city again raised the issue of res judicata in its motion for judgment notwithstanding the verdict, but the court denied that motion as well. "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 matter." Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, syllabus. "The doctrine applies not only to what was determined but also as to every question which might properly have been litigated." Stromberg v. Bd. of Edn. (1980), 64 Ohio St.2d 98, 100. Civ.R. 41(B)(3) provides: (3) Adjudication on the merits; exception. A dismissal under this subdivision and any dismissal not provided for in this rule, except as provided in subsection (4) of this subdivision, operates as an adjudication on the merits unless the court, in its order for dismissal, otherwise specifies. The court dismissed Jim's first complaint on March 6, 1990, simply stating, "Deft's motion to dismiss is granted." The journal entry did not specify that the dismissal was otherwise than upon the merits, so it operates as an adjudication on the merits. See Mayrides v. Franklin Cty. Prosecutor's Office (1991), 71 Ohio - 8 - App.3d 381, 383; Willis v. Cuyahoga Metropolitan Housing Auth. (Feb. 10, 1994), Cuyahoga App. No. 65472, unreported at 5. Jim's maintains our previous decision in this case held the dismissal was not on the merits. This is incorrect. We did state the general proposition that "a party's motion to dismiss made pursuant to Civ.R. 12(B)(6) tests only the sufficiency of the plaintiff's complaint and should not be used to terminate litigation upon its merits." Jim's Steak House, supra, unreported at 2 (citation omitted). We made this statement in the context of applicable law which holds complaints should not be lightly dismissed for pleading defects. Thus, we noted that Civ.R. 12(B)(6) only requires a short, plain statement of the claim which gives fair notice to the defendant and states the grounds for the complaint. Obviously, Jim's failed to meet this lenient standard. Nothing in our decision can reasonably be construed to express our opinion that the prior dismissal was not on the merits. Consequently, we find the March 6, 1990 dismissal to be a final judgment on the merits. Jim's next maintains the city's failure to raise res judicata in a timely motion precludes application of the doctrine. It argues the city's first motion in limine, filed on the first day of trial, was neither timely nor procedurally correct since the motion should have been raised in a summary judgment motion. We first note the city listed res judicata as an affirmative defense in its answer to the complaint, so it properly preserved - 9 - its right to raise it at a later date. See Civ.R. 8(C); Hoover v. Sumlin (1984), 12 Ohio St.3d 1. In fact, the city raised the issue of res judicata at the start of trial, at the close of Jim's evidence, at the close of all the evidence, and again in its motion for a new trial or, in the alternative, for judgment notwithstand- ing the verdict. Jim's contends the only proper vehicle for raising res judicata is by motion for summary judgment. This contention is apparently grounded on a misunderstanding of the court's holding in State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107. In Freeman, the court held the defense of res judicata may not be raised by a motion to dismiss filed pursuant to Civ.R. 12(B)(6). The court's reasoning is evident -- a motion for judgment on the pleadings tests nothing more that the legal sufficiency of the complaint. Any claim of res judicata necessarily requires the court to look beyond the pleadings to examine the results of a prior case. This examination would be beyond the scope of a Civ.R. 12(B)(6) motion, and more properly raised by a motion for summary judgment in which the movant could submit the necessary evidentiary materials. This is not to say a motion for summary judgment is the only means of raising the defense of res judicata. By raising the defense in a motion in limine, the city adequately asserted the defense prior to trial, in much the same way the accused in a criminal prosecution would seek to terminate the proceedings on - 10 - legal grounds. Cf. State v. Maurer (1984), 15 Ohio St.3d 239, 259, fn. 14, citing Palmer, Ohio Rules of Evidence, Rules Manual (1984), 446 ("A motion in limine may be used *** as the equivalent of a motion to suppress evidence, which is either not competent or improper because of some unusual circumstance."). Moreover, the city properly raised res judicata as grounds for its motions for a new trial and judgment notwithstanding the verdict. Civ. R. 59(A)(7) provides a new trial may be granted to all or any of the parties on grounds the judgment is contrary to law. Although it requires resort to evidentiary materials, the question whether principles of res judicata apply can be determined as matter of law. Therefore, we find the city timely raised the issue of res judicata. Jim's maintains res judicata does not apply because there is no mutuality of parties since the first complaint did not name Raymond Rockey as a party. While the first complaint did not specifically name Rockey as a party, it is not at all clear that Jim's did not intend Rockey to be a party. The first complaint continually refers to Jim's in the plural, using, for example, "plaintiffs" rather than the singular "plaintiff." We assume this is so because Rockey is, for all intent and purposes, Jim's. He holds ninety-six percent of Jim's stock, is its president and lives above the restaurant. In any event, the fact that Rockey was not named in the initial complaint does not mean he was not a party in interest to - 11 - the first complaint. In Trautwein v. Sorgenfrei (1979), 58 Ohio St.2d 493, 501, the court stated, "[i]n ascertaining whether there is an identity of such parties a court must look behind the nominal parties to the substance of the cause to determine the real parties in interest." See, also, N. Olmsted v. Eliza Jennings, Inc. (1993), 91 Ohio App.3d 173, 184-185. This case is factually similar to Stern v. Whitlatch & Co. (1993), 91 Ohio App.3d 32. In Stern, a construction contractor brought a breach of contract claim against homeowners. The homeowners counterclaimed, but dismissed those counterclaims and instead filed them in federal court. The federal court exercised discretionary abstention and dismissed the homeowners' claims. Meanwhile, the contractor's claims went to trial and a jury returned a verdict in its favor. The homeowner then filed a complaint against the contractor and its president, William Whitlatch. The trial court dismissed the homeowners' claims and the court of appeals affirmed. Citing Trautwein, supra, the court of appeals found it evident the president "*** was a real party in interest in the first lawsuit and that any claims against him should have been raised in that case." Id. at 37. Likewise, it is evident Rockey, Jim's president and primary shareholder, is a real party in interest whose stake in the outcome of Jim's first action should have been raised at that time. Moreover, we find the causes of action raised in the second complaint were the same as those raised in the first complaint. In - 12 - its appeal from the first dismissal, Jim's "argue[d] that it alleged sufficient facts to give appellee notice that its complaint is based on `Negligence, Taking or Nuisance.'" See Jim's Steak House, supra, at 3. These are the same claims alleged in the second complaint now before us. We find the claims set forth in the second complaint are based upon the same transaction or occurrence that was the subject of the previous action. Grava, supra. They arose from the Eagle Avenue Bridge closing and sought damages resulting from a loss of business allegedly occasioned by the closing. Consequently, principles of res judicata apply and bar these claims in the second action. Because all the claims raised in the second complaint were or could have been addressed in the first complaint, res judicata should have applied to bar the second complaint as a matter of law. Accordingly, we sustain the first assignment of error and vacate the judgment in Case No. 68506. Our holding necessarily moots consideration of the assignments of error in Case No. 68456. See App.R. 12(A)(1)(c). Judgment vacated. - 13 - It is ordered that appellant recover of appellees its costs herein taxed. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. DAVID T. MATIA, P.J. NAHRA, J., CONCU JUDGE JOHN T. PATTON 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 journalization, .