[Cite as Crick Constr. Co., LLC v. McGarvey Heating, Inc., 2011-Ohio-1035.]

 COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

CRICK CONSTRUCTION CO., LLC 

 Plaintiff-Appellant 

-vsMCGARVEY HEATING, INC. 

 Defendant-Appellee 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. Sheila G. Farmer, J. 

: Hon. John W. Wise, J. 

: 

: 

: Case No. 2010-CA-00229 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of 

Common Pleas, Case No. 2010B02033 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: March 7, 2011 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

ROBERT J. ROHRBAUGH, II. PATRICK CUSMA 

4800 Market Street, Ste. A Courtyard Centre 

Boardman, OH 44512 116 Cleveland Ave. N.W., Ste. 700 

 Canton, OH 44702 
[Cite as Crick Constr. Co., LLC v. McGarvey Heating, Inc., 2011-Ohio-1035.]

Gwin, P.J. 

{¶1} Plaintiff-appellant Crick Construction Company, LLC appeals a judgment 

of the Court of Common Pleas of Stark County, Ohio, which sustained the motion to 

dismiss filed by defendant-appellee McGarvey Heating, Inc. Appellant assigns a single 

error to the trial court: 

{¶2} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN 

SUSTAINING APPELLEE’S MOTION TO DISMISS.” 

{¶3} The record indicates in 2008, appellee filed an action to foreclose on his 

mechanics’ lien against Elcee Angels, Inc. and Consumers National Bank in Stark 

County Common Pleas Case No. 2008-CV-04608. Consumers’ National Bank is not a 

party to this appeal. Appellant filed a counterclaim against appellee. Consumers 

National Bank did not file an answer, and the court entered a default judgment against 

the bank. The court dismissed appellant’s action against appellee and appellee’s action 

against appellant, both without prejudice. The trial court subsequently granted the bank 

relief from judgment, and the court re-opened the matter. Ultimately, the trial court 

found appellee’s lien had priority over any lien claimed by the bank, but did not rule on 

the issues between appellant and appellee. On September 23, 2009, the court 

dismissed the complaint and counterclaim of appellee and appellant without prejudice. 

{¶4} On April 30, 2010 appellant filed an application for approval of a cash 

deposit discharging the mechanics’ lien in Case No. 2008CV04608. The court 

overruled the motion for application of the cash bond. Thereafter, on May 26, 2010, 

appellant filed a complaint for breach of contract against appellee, Case No. 2010 
Stark County, Case No. 2010-CA-00229 3 

CVC02033. The parties agree this was essentially a re-filing of the counterclaim, 

raised, but never adjudicated, in the 2008 case. 

{¶5} It appears there was some confusion in common pleas court. The matter 

was originally assigned to Judge Charles E. Brown, Jr. On June 3, 2010, the 

Administrative Judge transferred the matter to Judge Lee Sinclair, the judge who 

presided over the 2008 case. The Administrative Judge found the case was a re-filing 

of Case No. 2008CV04608. However, on June 8, 2010, the Administrative Judge 

entered another judgment, finding the case was inadvertently transferred from Judge 

Brown to Judge Sinclair as a re-filing of Case No. 2008CV04608. The Administrative 

Judge transferred the matter back to Judge Brown. 

{¶6} On July 20, 2010, the trial court granted appellee’s motion to dismiss the 

complaint finding the matter should be litigated in Case No. 2008CV04608. 

{¶7} Appellee suggests appellant had an opportunity to fully and fairly litigate 

the issue, and thus appellant cannot raise the same issues in this new proceeding. 

Appellee suggests the matter is res judicata, but we find the issues between these two 

parties have never been decided with a final judgment or decree. Accordingly, the 

matter is not res judicata. See State ex rel. Dillard Department Store v. Ryan, 122 Ohio 

St.3d 241, 2009 -Ohio- 2683, 910 N.E.2d 438. In Ryan, the Court found res judicata and 

the two-dismissal rule did not apply where there was no administrative or judicial 

determination or final judgment, and the plaintiff voluntarily dismissed her complaint a 

second time because she believed the matter was settled. 

{¶8} Appellee cites us to no authority for dismissal in a case where a 

counterclaim is re-filed as a complaint. The matter was clearly filed within the one year 
Stark County, Case No. 2010-CA-00229 4 

saving statute, R.C. 2305.19, and this court knows of no way for appellant to revive his 

action other than by filing a complaint. 

{¶9} We find the trial court erred in dismissing the matter as filed under the 

wrong case number. We find regardless of whether appellant’s claims against appellee 

are made as a counterclaim, or as a complaint, appellant may pursue his claims 

because there is no prior final order adjudicating the matter . 

{¶10} The assignment of error is sustained. 

{¶11} For the foregoing reasons, the judgment of the Court of Common Pleas of 

Stark County, Ohio, is reversed, and the cause is remanded to the court for further 

proceedings in accord with law and consistent with this opinion. 

By Gwin, P.J., 

Farmer, J., and 

Wise, J., concur 

 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 

 HON. JOHN W. WISE 

WSG:clw 0218 
[Cite as Crick Constr. Co., LLC v. McGarvey Heating, Inc., 2011-Ohio-1035.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

CRICK CONSTRUCTION CO., LLC : 

 : 

 Plaintiff-Appellant : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

MCGARVEY HEATING, INC. : 

 : 

 : 

 Defendant-Appellee : CASE NO. 2010-CA-00229 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Court of Common Pleas of Stark County, Ohio, is reversed, and the cause is 

remanded to the court for further proceedings in accord with law and consistent with this 

opinion. Costs to appellee. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 

 HON. JOHN W. WISE