[Cite as McCabe Corp. v. Environmental Protection Agency, 2012-Ohio-3643.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

MCCABE CORPORATION, et al. 

 Plaintiffs 

 v. 

OHIO ENVIRONMENTAL PROTECTION AGENCY, et al. 

 Defendants 

Case No. 2009-01476 

Judge Joseph T. Clark 

DECISION

{¶ 1} On November 28, 2011, defendants filed a motion for summary judgment 

pursuant to Civ.R. 56(B). With leave of court, plaintiffs filed a response on January 10, 

2012. On January 27, 2012, defendants filed a reply. The motion is now before the 

court on a non-oral hearing pursuant to L.C.C.R. 4(D). 

{¶ 2} Civ.R. 56(C) states, in part, as follows: 

{¶ 3} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, that reasonable 

minds can come to but one conclusion and that conclusion is adverse to the party 

against whom the motion for summary judgment is made, that party being entitled to 
Case No. 2009-01476 - 2 - ENTRY

have the evidence or stipulation construed most strongly in the party’s favor.” See also 

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc. (1977), 50 Ohio St.2d 317. 

{¶ 4} Plaintiff Edward McCabe is a licensed professional engineer and the CEO 

of plaintiff McCabe Corporation, which engages in the business of environmental 

remediation. On June 29, 1998, plaintiffs bought the land and buildings located at 636 

North Irwin Street, in Dayton, Ohio. In 1990, the site where the buildings were located 

had been designated as a hazardous waste facility. On September 18, 1998, 

defendants filed a complaint against the previous owners of the site, including Republic 

Environmental Systems (Ohio), Inc., f.k.a. Ecolotec, Inc., Republic Environmental 

Systems, Inc., and BRAC Inc., for violations of Ohio’s hazardous waste laws. On that 

same date, the previous owners entered into a consent order with defendants, which 

required that numerous steps be taken to address the matters of soil and ground water 

contamination at the facility and to maintain certain financial assurance and liability 

coverage for the facility. The previous owners initially maintained a trust fund to assure 

funding of the closure of the facility. Plaintiffs sent a written notice to defendants in 

1998, stating that only the property and buildings were being sold to them, and that no 

attempt was made to transfer any license, permit, or other right to operate a regulated 

facility at that location. Plaintiffs also informed defendants that the previous owners 

would complete the closure requirements under the terms of the consent order. 

However, on July 20, 2007, defendants filed a “motion to show cause, written charges in 

contempt and request for hearing” against plaintiffs for failure to comply with the terms 

of the consent order. 

{¶ 5} Plaintiffs allege that defendants fraudulently and tortiously administered the 

closure of the facility and that defendants’ actions resulted in interference with plaintiffs’ 

contract rights. In their complaint, plaintiffs allege that defendants knew of 

contaminated conditions at the site but concealed such and failed to include those 
Case No. 2009-01476 - 3 - ENTRY

conditions in the closure plan; that defendants knew of contaminated conditions at the 

site and affirmatively represented that those conditions were provided for in the closure 

plan; that defendants understated the costs necessary to complete the work to 

remediate the site; that the false, misleading, inaccurate, and erroneous statements of 

defendants concerning the conditions at the site constituted actionable non-disclosure in 

violation of defendants’ duty to disclose the conditions; and that defendants fraudulently 

induced plaintiffs to purchase the site. 

{¶ 6} On July 6, 2009, the court issued an entry wherein it dismissed plaintiffs’ 

claims of defamation and any other claims that accrued on or before January 20, 2007, 

on the basis that they were barred by the applicable statute of limitations. However, the 

court further stated: “If plaintiffs discovered defendants’ allegedly fraudulent conduct 

when the motion to show cause was filed [on July 20, 2007], plaintiffs arguably have 

timely filed a claim for fraud. * * * Therefore, any claims that accrued on or after January 

20, 2007, may be cognizable in this court.” 

{¶ 7} In their motion for summary judgment, defendants assert that plaintiffs’ 

remaining claims are barred by the doctrine of res judicata, inasmuch as the issues 

before this court were determined by the Montgomery County Court of Common Pleas, 

which judgment was affirmed by the Second District Court of Appeals. 

{¶ 8} Under the doctrine of res judicata, “[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 action.” Grava v. 

Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus. “In Ohio, ‘[t]he doctrine of 

res judicata encompasses the two related concepts of claim preclusion * * * and issue 

preclusion, also known as collateral estoppel.’” State ex rel. Davis v. Pub. Emps. 

Retirement Bd., 120 Ohio St.3d 386, 2008-Ohio-6254, ¶27, quoting O'Nesti v. DeBartolo 

Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, ¶6. “‘[I]ssue preclusion, [or] 

collateral estoppel, holds that a fact or a point that was actually and directly at issue in a 
Case No. 2009-01476 - 4 - ENTRY

previous action, and was passed upon and determined by a court of competent 

jurisdiction, may not be drawn into question in a subsequent action between the same 

parties or their privies, whether the cause of action in the two actions be identical or 

different.’” Id., quoting Ft. Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 

81 Ohio St.3d 392, 395, 1998-Ohio-435. “‘While the merger and bar aspects of res 

judicata have the effect of precluding the relitigation of the same cause of action, the 

collateral estoppel aspect precludes the relitigation, in a second action, of an issue that 

had been actually and necessarily litigated and determined in a prior action that was 

based on a different cause of action.’” Id. 

{¶ 9} Defendants have attached to their motion a copy of the Court of Appeals 

decision in State, ex rel. Rogers v. Republic Environmental Systems, Inc., et al., and 

McCabe Corp., et al., 2nd Dist. Nos. 23513, 23644, 23723, 2010-Ohio-5523, wherein 

plaintiffs appealed from several orders issued by the Montgomery County Court of 

Common Pleas. Three separate appeals were consolidated from Case No. 1998-CV3499.1

 

{¶ 10} The Second District Court of Appeals decision arose from the same 

transaction as set forth in plaintiffs’ complaint, namely, the 1998 sale of a hazardous 

waste facility located at 636 N. Irwin Street in Dayton, Ohio. The court of appeals 

affirmed the trial court’s findings that the purchase agreement established that plaintiffs 

took possession of the facility pursuant to the terms of the Consent Order; that in late 

1998, McCabe allegedly discovered the presence of hazardous materials at the facility 

which were not disclosed prior to the sale of the property; that on September 17, 2008, 

McCabe filed an amended answer and cross-claim, as well as a third-party complaint 

 1

The court notes that the court of appeals decision was not incorporated into a properly framed 

affidavit pursuant to Civ.R. 56(E). However, plaintiffs did not object to its use in their response. 

Therefore, the decision shall be considered in support of defendants’ motion. “When ruling on a motion 

for summary judgment, a trial court may consider documents other than those specified in Civ.R. 56(C) in 
Case No. 2009-01476 - 5 - ENTRY

alleging claims for fraud, fraudulent inducement, and/or misrepresentation; that 

McCabe’s claims for fraud and fraudulent inducement were barred by the applicable 

statute of limitations; and that McCabe was properly held in contempt for failure to 

comply with the Consent Order. See Rogers, supra, ¶3-9, 21, 49-50, 68. 

{¶ 11} The court of appeals also stated: “McCabe does argue briefly that the 

Ohio EPA, acting in conjunction with Republic, failed to disclose hazardous conditions 

that it was allegedly aware of at the facility. The record, however, does not support 

McCabe’s bare assertion in this regard. The record establishes that there were no 

communications between McCabe and the Ohio EPA regarding the facility until after 

McCabe purchased the facility from Republic. Further, the evidence presented at the 

hearing before the trial court establish[es] that the Ohio EPA did not even know of 

McCabe’s involvement with the facility until well after the Consent Order had been 

finalized and filed. Thus, no evidence exists which supports McCabe’s affirmative 

defense that the State participated in any way with Republic to fraudulently induce 

McCabe to purchase the facility.” Id., ¶63. 

{¶ 12} In response to the motion for summary judgment, plaintiffs state: “The

subsoil contamination known to the OEPA prior to the December 1997 Contract was 

discovered by the McCabes for the first time in November/December 1998. 4/29/08 Tr., 

at 112:1-22. Despite McCabes’ 1998 discovery of contamination not disclosed in the 

Closure Plan, it was not until January 2008 (ten (10) years later) that McCabe 

discovered that the OEPA knew of the presence of this undisclosed 

contamination as early as 1995. 9/16/08 Tr., at 37:21-21, 77:1-93:6, McCabe Exhibits 

2 & 3. It is the 2008 discovery that the OEPA knew of the undisclosed conditions 

prior to Closure Plan approval which triggers this action against the State and the 

OEPA.” (Emphasis in original.) 

 

support of the motion when no objection is raised.” Lytle v. City of Columbus (1990), 70 Ohio App.3d 99, 
Case No. 2009-01476 - 6 - ENTRY

{¶ 13} Despite plaintiffs’ contention that they discovered alleged fraud in 2008, 

the doctrine of res judicata and the adjunct principle of collateral estoppel “‘applies to 

extinguish a claim by the plaintiff against the defendant even though the plaintiff is 

prepared in the second action (1) To present evidence or grounds or theories of the 

case not presented in the first action, or (2) To seek remedies or forms of relief not 

demanded in the first action.’” Grava, supra, at 383, quoting 1 Restatement of the Law 

2d, Judgments (1982) 209, Section 25. 

{¶ 14} Upon review, the court finds that the facts alleged in plaintiffs’ complaint 

arise out of the same transaction or occurrence that was the subject matter of the case 

in the Montgomery County Court of Common Pleas; that a court of competent 

jurisdiction determined that plaintiffs were bound by the Consent Order; that plaintiffs 

were properly found in contempt of the Consent Order; and that plaintiffs’ claims of 

fraudulent inducement and fraudulent misrepresentation were barred by the statute of 

limitations. Accordingly, the court finds that the doctrine of res judicata precludes relitigation of the issues raised in plaintiffs’ complaint. Consequently, there are no 

genuine issues of material fact and defendants are entitled to judgment as a matter of 

law. Defendants’ motion for summary judgment shall be granted. 

 

104. 
Case No. 2009-01476 - 7 - ENTRY

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

MCCABE CORPORATION, et al. 

 Plaintiffs 

 v. 

OHIO ENVIRONMENTAL PROTECTION AGENCY, et al. 

 Defendants 

Case No. 2009-01476 

Judge Joseph T. Clark 

JUDGMENT ENTRY

{¶ 15} A non-oral hearing was conducted in this case upon defendants’ motion for 

summary judgment. For the reasons set forth in the decision filed concurrently 

herewith, defendants’ motion for summary judgment is GRANTED and judgment is 

rendered in favor of defendants. Court costs are assessed against plaintiffs. The clerk 

shall serve upon all parties notice of this judgment and its date of entry upon the journal. 

 

 _____________________________________ 

 JOSEPH T. CLARK 

 Judge 
Case No. 2009-01476 - 8 - ENTRY

cc: 

 

Randall W. Knutti 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Norman A. Abood 

203 Fort Industry Square 

152 North Summit Street 

Toledo, Ohio 43604 

002 

Filed February 3, 2012 

To S.C. Reporter August 13, 2012