Charvat v. Gvn Mich. Inc.
| Decision Date | 08 July 2010 |
| Docket Number | C.P.C. No. 09CVH-07-11096,No. 09AP-1075,09AP-1075 |
| Parties | Philip J. Charvat, Petitioner-Appellant, v. GVN Michigan, Inc., Respondent-Appellee. |
| Court | Ohio Court of Appeals |
Ferron & Associates, LPA, John W. Ferron, Lisa A. Wafer, and Jessica G. Fallon, for appellant.
Porter Wright Morris & Arthur, LLP, James B. Hadden, and Anthony R. McClure; Weinstock & Scavo, P.C., and Anthony Polvino, for appellee.
ACCELERATED CALENDAR
DECISION
APPEAL from the Franklin County Court of Common Pleas.
{¶1} Petitioner-appellant, Philip J. Charvat, appeals from a judgment of the Franklin County Court of Common Pleas granting the motion to dismiss of respondentappellee, GVN Michigan, Inc. Petitioner assigns a single error:
THE TRIAL COURT ERRED BY DISMISSING APPELLANT'S PETITION IN DISCOVERY BASED UPON ITS FINDING THAT APPELLANT'S UNDERLYING CLAIMS ARE BARRED BY RES JUDICATA.
Because the allegations of petitioner's complaint fail to establish the element of privity necessary to establish res judicata, the trial court erred in granting respondent's motion to dismiss, and we reverse.
{¶2} On January 22, 2009, petitioner filed a complaint in the United States District Court for the Southern District of Ohio ("federal case") against respondent, a vacation travel club with facilities in Dublin, Ohio. Petitioner asserted respondent violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. 227, et seq., the related regulations under 47 C.F.R. 64.1200, the Ohio Telephone Solicitation Sales Act ("TSSA"), R.C. 4719.01, et seq., the Ohio Consumer Sales Practices Act ("CSPA"), R.C. 1345.01, et seq., and various provisions of the Ohio Administrative Code pertaining to consumer advertisements. The complaint alleged the violations occurred between May 28, 2005 and September 14, 2006, when petitioner received at his residence ten unsolicited telemarketing calls from respondent.
{¶3} In a November 8, 2006 letter, respondent advised petitioner that respondent did not place seven of the ten phone calls of which petitioner complained. Instead, the letter identified three entities, by their initials only, that respondent claims were responsible for placing the calls. Respondent referred to the entities as HLK, CMN, and IMS (collectively, "the three entities"). Petitioner named the three entities as defendants in the federal case by their initials only. Because petitioner obtained no further identifying information about them, petitioner never obtained service upon any of the three entities.
{¶4} Respondent eventually made an offer of judgment to petitioner pursuant to Fed.Civ.R. 68; petitioner accepted it. On June 23, 2009, the federal court entered ajudgment in favor of petitioner and against respondent in the amount of $27,000. (Petition, ¶14.)
{¶5} After unsuccessfully attempting to obtain further identifying information from respondent about the three entities, petitioner on July 24, 2009 filed a petition in discovery pursuant to R.C. 2317.48 in the Franklin County Court of Common Pleas. Petitioner sought a court order authorizing petitioner to serve upon respondent interrogatories requesting the complete names, addresses and telephone numbers of the three entities so he could pursue TCPA, TSSA, and CSPA claims against them.
{¶6} On August 31, 2009, respondent, before filing an answer, moved to dismiss the petition for failure to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6), arguing res judicata bars petitioner's underlying claims against the three entities. In his memorandum in opposition to respondent's motion, petitioner argued res judicata did not preclude his petition or bar his claims against the three entities because they were not in privity with respondent for purposes of the judgment entered against respondent in the federal case. Petitioner further argued equity prohibits respondent from invoking the doctrine of res judicata.
{¶7} On October 21, 2009, the trial court filed a decision and entry granting respondent's motion to dismiss. The trial court agreed with respondent that res judicata bars petitioner's claims against the three entities, as they were in privity with respondent. On November 18, 2009, petitioner filed a timely notice of appeal.
{¶8} In his sole assignment of error, petitioner contends the trial court erroneously determined res judicata bars his underlying claims against the three entities.
{¶9} "When reviewing a judgment granting a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim, an appellate court must independently review the complaint to determine if dismissal is appropriate." Wooden v. Kentner, 153 Ohio App.3d 24, 2003-Ohio-2695, ¶6, quoting Gleason v. Ohio Army Natl. Guard (2001), 142 Ohio App.3d 697, 700 (internal quotation marks omitted). "The appellate court need not defer to the trial court's decision in Civ.R. 12(B)(6) cases." Id., quoting Gleason.
{¶10} "In order to sustain dismissal of a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief may be granted, it must appear beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶14, citing Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, ¶11. "The allegations of the complaint must be construed as true." Id., citing Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717, ¶11. "Furthermore, the complaint's material allegations and any reasonable inferences drawn therefrom must be construed in the nonmoving party's favor." Id., citing Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 418, 1995-Ohio-61.
{¶11} Respondent argues the trial court properly granted its motion to dismiss the petition in discovery because the petition failed to articulate a cognizable claim. See Moritz v. S. Ohio Corr. Facility (Dec. 22, 1998), 10th Dist. No. 98AP-574, citing Bridgestone/Firestone, Inc. v. Hankook Tire Mfg. Co., Inc. (1996), 116 Ohio App.3d 228, 232 (). According to respondent, res judicata bars any potential claim.
{¶12} "[A] final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent action on the same claim or cause of action between the parties or those in privity with them." State ex rel. Schneider v. Bd. of Edn. of N. Olmsted City School Dist. (1988), 39 Ohio St.3d 281, 282, quoting Johnson's Island, Inc. v. Bd. of Twp. Trustees (1982), 69 Ohio St.2d 241, 243. Application of the doctrine of res judicata does not depend on whether the original claim explored all possible theories of relief. Hamrick v. Daimler Chrysler Motors, 9th Dist. No. 03CA008371, 2004-Ohio-3415, ¶13, citing Brown v. Dayton, 89 Ohio St.3d 245, 248, 2000-Ohio-148. Rather, "a valid, final judgment upon the merits of a case bars any subsequent action 'based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.' " Hamrick, quoting Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 1995-Ohio-331.
{¶13} "The doctrine of res judicata encompasses the two related concepts of claim preclusion, also known as res judiciata or estoppel by judgment, and issue preclusion, also known as collateral estoppel." State ex rel. Schachter v. Ohio Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-1704, ¶27, quoting ONesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, ¶6. "Claim preclusion prevents subsequent actions, by the same parties or their privies, based upon any claim arising out of a transaction that was the subject matter of a previous action." Id., quoting O'Nesti. "The previous action is conclusive for all claims that were or could have been litigated in the first action." Id. {¶14} Respondent's motion to dismiss raised res judicata, or claim preclusion. "For claim preclusion to apply, the parties to the subsequent suit must either be the same or in privity with the parties to the original suit." ONesti at ¶9, citing Johnson's Island at 244. Because the parties are not the same, the issue of privity is central to respondent's res judicata contentions.
{¶15} "Privity was formerly found to exist only when a person succeeded to the interest of a party or had the right to control the proceedings or make a defense in the original proceeding." Id., citing Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 114, overruled in part on other grounds, Grava at 379. In addition, privity could arise where one had "[a]n interest in the result of and active participation in the original lawsuit" or where individuals raise "identical legal claims and seek identical rather than individually tailored results." ONesti at ¶9, citing Grava; Brown at 248.
{¶16} While the Supreme Court of Ohio acknowledged that "privity is a somewhat amorphous concept in the context of claim preclusion, * * * [a] 'mutuality of interest, including an identity of desired result, ' might also support a finding of privity." O'Nesti, quoting Brown at 248 (). ...
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