COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71449 RON THOMAS, SR. : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION RESTAURANT DEVELOPERS CORP. : : Defendant-appellee : : July 17, 1997 : DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-290543 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant : For defendant-appellee: ERIC LARSON ZALUD, ESQ. KEITH R. KRAUS, ESQ. MARIANN E. BUTCH, ESQ. CAROLE A. ROTH, ESQ. Benesch, Friedlander, Coplan Kraus & Kraus & Arnoff 1800 Ohio Savings Plaza 2300 BP America Bldg. 1801 East Ninth Street 200 Public Square Cleveland, OH 44114 Cleveland, OH 44114-2378 -2- PATTON, J. This appeal arises from the trial court's granting of Restaurant Developers Corp. ( RDC ) motion for summary judgment against Ron Thomas, Sr. ( Thomas ). The issue presented for review is whether res judicata principles apply to bar Thomas from relitigating the same issues he complained about in a prior suit. The facts reveal that on June 22, 1984, Mr. Hero Sandwich Systems, Inc. ( Mr. Hero ) entered into a licensing agreement with Thomas to operate a Mr. Hero restaurant. Approximately five years later, on March 13, 1989, Thomas assigned his interest in the restaurant to Vitcom, Inc. Subsequently, Mr. Hero transferred its interest in the restaurant to RDC. This agreement authorized RDC to take control of the restaurant in case of default. In March 1990, Vitcom began defaulting in their payment obligations to Thomas. In July 1992, RDC advised Thomas that Vitcom was in default of its obligations to RDC. RDC told Thomas that it was going to hold a meeting to determine whether an agreement could be reached that would benefit both RDC and Vitcom and resolve Vitcom's default. On August 14, 1992 Vitcom relinquished control of the restaurant to RDC and RDC then notified Thomas, by letter, that it had reclaimed the restaurant pursuant to the terms of the license agreement. Thomas testified that he had a right under the purchase agreement with Vitcom to take over the restaurant in the event of -3- their default; however Vitcom had defaulted on the purchase agreement with Thomas in 1990, but Thomas failed to pursue this remedy until after RDC had already taken possession of the restaurant in 1992. Thomas then sued RDC claiming damages based on theories of fraud, conversion, and unjust enrichment. The trial court granted RDC's motion for summary judgement which this court affirmed in Thomas v. Garrett (April 6, 1995), Cuyahoga App. No. 67875, unreported. Subsequently, on September 20, 1995 the Ohio Supreme Court denied jurisdiction. The instant complaint was filed by Thomas against RDC on June 6, 1995 with an amended complaint filed on February 6, 1996. A trial court again granted RDC's motion for summary judgment. It is from this order which Thomas now appeals. For his first assignment of error Thomas states as follows: RDC DID NOT SURMOUNT THE RIGOROUS SUMMARY JUDGMENT STANDARDS REQUIRED TO GRANT ITS MOTION. Thomas argues summary judgment was improperly granted because there are disputed issues of material fact which have not been litigated. Thomas claims he has established valid liens on the equipment at the restaurant and this is a fundamental fact which precludes summary judgment. RDC maintains summary judgment was properly granted because Thomas failed to submit sufficient evidence to support his allegation that he had perfected a lien on the equipment at the restaurant. RDC argues in order to perfect a lien, the financing -4- statements must be filed with the county recorder and secretary of state. In the present case, there is no evidence that Thomas filed financing statements with the secretary of state so his lien is not valid. R.C. 1309.38(A)(4) governs the filing of financing statements: (4) In all other cases, in the office of the secretary of state and, in addition, if the debtor has a place of business in only one county of this state, also in the office of the county recorder of such county, or if the debtor has no place of business in this state, but resides in the state, also in the office of the county recorder of the county in which he resides. This section requires that the financing statements be filed in the office of the secretary of state and in the office of the county recorder in which the filer resides or where his business is located. There is no evidence that Thomas filed his financing statements in the secretary of state's office therefore his lien against the equipment at the restaurant is not valid. Maurer v. Port Feed Mill, Inc. (1991), 71 Ohio App.3d 200, 204. Therefore, summary judgment was properly granted on this issue and Thomas's first assignment of error is overruled. In his second assignment of error defendant states as follows: RES JUDICATA DOES NOT BAR THOMAS'S CURRENT CLAIMS BASED UPON DIFFERENT PARTIES, DIFFERENT ISSUES, DIFFERENT FACTS, NEW EVIDENCE AND DIFFERENT CLAIMS. Thomas claims res judicata does not bar the instant action because the issues of lien validity, interference with his contractual relations with Vitcom, and equitable subrogation are distinct and separate from those argued in the first action. -5- RDC contends res judicata applies because the same set of identical factual allegations, transactions, and issues were set forth in both the first amended complaint and the amended complaint in the instant action. Thomas addressed the taking of the restaurant equipment in the first action in his amended complaint in the following paragraphs: 10. Defendants, without authorization, assumed and exercised the right of ownership over Plaintiff's restaurant equipment and fraudulently converted Plain- tiff's property to their own beneficial use and enjoyment while wrongfully assuming title in themselves without appropriate compensation to Plaintiff. 11. Defendants were unjustly enriched at the Plaintiff's expense when they usurped Plaintiff's Mr. Hero Restaurant by locking him out without notice, while unjustly retaining Plaintiff's restaurant equipment without compensating Plaintiff accordingly. In the instant action Thomas addressed the taking of the restaurant equipment in the following paragraph: 22. As a valid and viable creditor and lienor of the Swifts, Thomas is equitably subrogated to any rights that RDC claims to have in the proceeds gained by RDC from the sale of the Equipment, in an amount not presently ascertainable, but believed to be not less than Eighty Thousand Dollars ($80,000.00). In Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood (1984), 20 Ohio App.3d 338, 340, citing Covington & Cincinnati Bridge Co. v. Sargent (1875), 27 Ohio St. 233, this court addressed the issue res judicata and the relitigation of similar issues and stated: * * * Second, the application of the concept of res judicatanot only precludes the relitigation of the same cause as between the parties, its `collateral estoppel' aspect precludes relitigating legal or factual issues in -6- a second lawsuit that were the general subject of litigation in the first action even though the second is a different cause of action. In addition, it is a general rule of the law of Ohio that an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit. National Amusements, Inc. v. City of Springdale (1990), 53 Ohio St.3d 60, 62; citing Rogers v. City of Whitehall (1986), 25 Ohio St.3d 67, 69. The first action was between the same parties and arose out of the same transaction, i.e., RDC's repossession of the Mr. Hero restaurant and equipment. In the amended complaint, in the first action, Thomas complained that RDC wrongfully retained the restaurant equipment. In the instant action, Thomas again complains the restaurant equipment was wrongfully retained. The general subject in both actions is the retention of the restaurant equipment, but in the instant action Thomas bases his theory of liability on a valid lien he perfected on the equipment. Thomas agues the same general subject in both actions but in the second action he argues it under a different theory, a theory which could have been argued in the first action. Based on the above cited authority collateral estoppel and res judicata bar the relitigation of issues which could have been argued but were not and those arising out of the same general subject. Therefore, this argument fails. Thomas next argues that res judicata does not bar his claims of contract interference and equitable subrogation because they -7- were not argued in the first action. Thomas claims RDC tortiously interfered with the contract relations he had with Vitcom because RDC prevented him from executing his contractual remedies against Vitcom via the financing statement and note. This argument by Thomas is illusory. The basis for his argument is still the financing statements and lien on the restaurant equipment. However, Thomas failed to perfect this lien, and as stated in this court's opinion in the first action, he had two years to take over the restaurant after Vitcom defaulted but he did nothing until RDC asserted its right of repossession. Thomas, supra. Thomas's arguments in the instant action are based on his subrogation rights relating to the restaurant equipment and tortious interference with his contract rights with Vitcom. He does not make any new arguments which do not arise from the same general subject matter as in the first action nor which might have been litigated in the first action but were not. Thomas simply puts a new name on old arguments. Thus, the doctrines of res judicata and collateral estoppel apply and Thomas's second assignment of error is overruled. Thomas's third assignment of error states as follows: THERE CAN BE NO RES JUDICATA SINCE THE FIRST ACTION DID NOT PROVIDE THOMAS A FULL AND FAIR OPPORTUNITY FOR THOMAS TO PRESENT HIS CASE. Thomas argues he was denied an opportunity to present his case because he was not able to litigate the issue of his liens and he was foreclosed from developing RDC's express admission, in its -8- letter, that it owed him money for the equipment. In addition, Thomas claims he was not given the opportunity to present new evidence that RDC sold the restaurant equipment or the testimony of one of the partner's of Vitcom. Thomas had the opportunity to litigate the issue of his liens in the first action but he failed to do so. Moreover, the issue is without merit because Thomas failed to file financing statements with the secretary of state, as discussed in the first assignment of error. The letter Thomas refers to is the August 18, 1992 letter which states: * * * RDC will pay you $12,000.00 plus the value of the food, paper and supplies in the unit when we take possession of the restaurant. This will be offset by any monies owed to RDC (currently approximately $8,000.00) and any past due rent, purveyors invoices or utilities that need to be paid in order to keep the unit open. Thomas also argues he was not given the opportunity to present new evidence of the testimony of one of the partners of Vitcom and a change of circumstances represented by RDC's sale of the restaurant equipment. Thomas is camouflaging arguments under a due process analysis which are subject to res judicata. These arguments all arise from the repossession of the restaurant equipment by RDC. Thomas had the opportunity to litigate these issues in the first action but did not. He is now barred by collateral estoppel and res judicata from relitigating these issues as explained in the previous assignments of errors. -9- The sale of the restaurant equipment did occur after the first action; however, this new evidence is neither a material issue nor relevant to determining the ownership of the equipment which was decided in the first action. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42. Accordingly, Thomas's third assignment of error is overruled. Judgment affirmed. -10- It is ordered that appellee recover of appellant its 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 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. NAHRA, P.J. O'DONNELL, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsidera-tion with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .