[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Armatas v. Plain Twp. Bd. of Zoning Appeals , Slip Opinion No. 2020-Ohio-2973.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2020-O HIO -2973

T HE S TATE EX REL
. A RMATAS , A PPELLANT , v . P LAIN T OWNSHIP B OARD OF
Z ONING A PPEALS ET AL ., A PPELLEES
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Armatas v. Plain Twp. Bd. of Zoning Appeals , Slip Opinion No. 2020-Ohio-2973.] Mandamus—Property owner’s claim against township zoning inspector barred by res judicata—Relief sought against board of zoning appeals contingent on claim against inspector—Court of appeals’ grant of summary judgment in favor of inspector and board affirmed. (No. 2019-1237—Submitted March 10, 2020—Decided May 19, 2020.)

A PPEAL from the Court of App eals for Stark County, No. 2019CA00001, 2019-Ohio-3258.

__________________ Per Curiam.S UPREME C OURT OF O HIO

2 {¶ 1} Appellant, Steven A. Armatas, appeals the judgment of the Fifth District Court of Appeals, which held that Armatas’s complaint for a writ of mandamus is barred by the doctrine of res judicata. We affirm. Background {¶ 2} In September 2016, Armatas went to the office of appellee Plain Township zoning inspector Thomas Ferrara to complain about a ne ighbor’s trees. Armatas claimed that the trees, which were 20 feet tall, violat ed a township zoning provision prohibiting hedges higher than 8 feet. Ferrara told Armatas that the trees did not violate the zoning code because they did not constitute a hedge. {¶ 3} In October 2016, Armatas filed a mandamus action in the Fifth D istrict seeking to compel Ferrara and the Plain Township Board of Trust ees to enforce the zoning provision against his neig hbor. The Fifth District dism issed the complaint because Armatas had an adequate remedy at law—he could have app ealed Ferrara’s decision to appellee Plain Township Board of Zoning Appeals. State ex rel. Armatas v. Plain Twp. Bd. of Trustees , 5th Dist. Stark No. 2016CA00188, 2017-Ohio-2645. Armatas appealed the Fifth District’s judgment to this court, b ut we dismissed the appeal after Armatas failed to file a merit brief. 150 Ohio St .3d 1418, 2017-Ohio7303, 80 N.E.3d 509. {¶ 4} In October 2018, Armatas attempted to appeal Ferrara’s Septembe r 2016 decision to the board of zoning appeals. The board, howev er, dismissed the appeal as untimely. See Plain Township Zoning Resolution Section 1201.8 (requiring that appeals to the board of zoning appeals be filed within 20 days of the decision being appealed). {¶ 5} In January 2019, Armatas filed a second mandamus action in the Fifth District, seeking to compel Ferrara to issue his September 2016 decision in writing. Armatas alleged that Ferrara has a clear legal duty to issue a written decision and that the time period to appeal the decision will not begin until a w ritten decision is issued.January Term, 2020

3 Armatas’s complaint also seeks an order compelling the board of zoning appeals to hear an appeal of Ferrara’s written decision and then to issue its own written decision. {¶ 6} The Fifth District granted summary judgment in favor of Ferrara and the board of zoning appeals. The court held that res judicata bars the claim against
Ferrara because Armatas could have asserted that claim in his 2 016 mandamus action, and it held that the claim against the board was moot b ecause the relief sought from the board is contingent on the claim against Ferrara. 201 9-Ohio-3258, ¶ 12-13. {¶ 7} Armatas appealed to this court as of right. Analysis {¶ 8} When reviewing a decision granting summary judgment, we apply a de
novo standard of review. Esber Beverage Co. v. Labatt USA Operating Co., L.L.C. , 138 Ohio St.3d 71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9. Summary judgment is appropriate when

(1) [n]o genuine issue as to any material fact remains to be li tigated; (2) the moving party is entitled to judgment as a matter of law ; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is ma de, that conclusion is adverse to that party.

Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C). {¶ 9} The undisputed material facts show that Armatas’s claim against Ferrara is barred by res judicata. Res judicata bars a second action when (1) a court of competent jurisdiction rendered a valid, final judgment on t he merits in an earlier action, (2) the second action invol ves the same parties or thei r privies, (3) the second action raises claims that were or could have been litigated in the first action, and (4)S UPREME C OURT OF O HIO

4 the second action arises out of the same transaction or occurre nce that was the subject
of the first action. Portage Cty. Bd. of Commrs. v. Akron , 109 Ohio St.3d 106, 2006- Ohio-954, 846 N.E.2d 478, ¶ 84. “The doctrine of res judicata requires a plaintiff to present every ground for relief in the first action, or be fore ver barred from asserting
it.” Natl. Amusements, Inc. v. Springdale , 53 Ohio St.3d 60, 62, 558 N.E.2d 1178 (1990). {¶ 10} Armatas first argues that the Fifth District did not render a f inal judgment on the merits in his 2016 mandamus action because it d id not address whether his neighbor’s trees violated the zoning provision. Bu t the Fifth District did enter a final judgment in that action. It was unnecessary for the court to reach Armatas’s substantive argument because he failed to demonstrate an essential element of his mandamus claim—the lack of an adequate remedy at law. See

Armatas , 2017-Ohio-2645, at ¶ 7, 9. The F ifth District’ s determinatio n constituted a judgment on the merits to which res judicata may apply. See State ex rel. Arcadia Acres v. Ohio Dept. of Job & Family Servs. , 123 Ohio St.3d 54, 2009-Ohio-4176, 914 N.E.2d 170, ¶ 15. {¶ 11} Armatas also argues that res judicata cannot apply because the two lawsuits did not involve the same parties. He points to the fa ct that his 2016 mandamus action was against Ferrara and the Plain Township Boar d of Trustees whereas this action is against Ferrara and the board of zoning appeals. But the Fifth District applied res judicata only to Armatas’s claim against F errara, not to Armatas’s claims against the board of zoning appeals. 2019-Ohio-3258 at ¶ 12-13. The board of zoning appeals’ presence in this lawsuit does not bar applic ation of the doctrine to the claim against Ferrara. {¶ 12} Armatas next argues that the claims he is raising in this actio n could
not have been raised in his 2016 mandamus action because the ne w claims arose later on when circumstances changed. He relies on State ex rel. Westchester Estates, Inc.January Term, 2020

5 v. Bacon , 61 Ohio St.2d 42, 399 N.E.2d 81 (1980), paragraph two of the syllabus, in
which this court held:

Where there has been a change in the facts since a decision was rendered in an action, which either raises a new material i ssue or which would have been relevant to the resolution of a material issue involved in the earlier action, neither the doctrine of res judicata nor the doctrine of collateral estoppel will bar litigation of that issue in a
later action.

(Emphasis added.) {¶ 13} Armatas has not demonstrated that any material facts have chang ed; he simply is pursuing a new legal theory in an attempt to resur rect his right to an administrative appeal of Ferrara’s September 2016 decision. Be cause Armatas could have sought in his first mandamus action a writ requiring Ferra ra to issue his 2016 decision in writing, res judicata may operate to bar that claim in this case. {¶ 14} Finally, Armatas argues that this action does not arise out of the same transaction or occurrence that was the subject of the 2016 mand amus action. He
claims that whereas the 2016 action involved enforcement of the zoning code, this action involves only the failures of Ferrara and the board of z oning appeals to issue written decisions. But Armatas fails to appreciate the connect ion between his two lawsuits. The 2016 action failed because another remedy was av ailable for Armatas to challenge Ferrara’s September 2016 decision—he could have ap pealed to the board of zoning appeals. Although Armatas eventually filed an administrative appeal, the board dismissed it as untimely. Armatas now seeks an order that, in his view, would facilitate a timely appeal. Because both lawsuits involve Armatas’s effort to challenge Ferrara’s September 2016 decision, they ari se out of the same transaction or occurrence for purposes of applying res judicata . The Fifth District,S UPREME C OURT OF O HIO

6 therefore, correctly applied res judicata to Armatas’s claim ag ainst Ferrara in this

case. {¶ 15} The Fifth District also correctly dismissed Armatas’s claim aga inst the board of zoning appeals. Armatas seeks a writ of mandamus dire cting the board to hear an appeal of a written decision issued by Ferrara and then to issue its own written decision after hearing Armatas’s appeal. Because these claims depend on an order directing Ferrara to issue a written decision—an order Armatas is not entitled to—it was proper for the Fifth District to dismiss them. Judgment affirmed.
O’C ONNOR , C.J., and K ENNEDY , F RENCH , F ISCHER , D E W INE , D ONNELLY , and S TEWART , JJ., concur.

_________________ Steven A. Armatas, pro se. Baker, Dublikar, Beck, Wiley & Mathews, James F. Mathews, and T onya J. Rogers, for appellee Thomas Ferrara. Pelini, Campbell & Williams, L.L.C., and Eric J. Williams, for appellee Plain Township Board of Zoning Appeals.

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