Henry J. Fant v. Greater Cleveland Regional Transit Authority, 94-LW-4337
| Decision Date | 09 June 1994 |
| Docket Number | 94-LW-4337,66415 |
| Parties | HENRY J. FANT, Plaintiff-Appellant v. GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY, Defendant-Appellee |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court Case No. CV-257045.
For Plaintiff-Appellant: HENRY J. FANT, Pro Se, P.O. Box 14833, Cleveland, Ohio 44114.
For Defendant-Appellee: JUAN E. ADORNO, Associate General Counsel, Regional Transit Authority, 615 West Superior Avenue, Cleveland, Ohio 44113.
The appeal sub judice is from an October 7, 1993 judgment of the Cuyahoga County Court of Common Pleas on a declaratory judgment action[1] commenced by plaintiff-appellant Henry J. Fant ("Fant") against defendant-appellee Greater Cleveland Regional Transit Authority ("RTA"). Fant timely appeals pro se from the judgment granting RTA's motion to dismiss Fant's complaint sub judice for declaratory judgment pursuant to Civ.R. 12(B)(6).
Fant who is a disabled veteran of the Korean War, originally filed a complaint with RTA on January 31, 1990 protesting that the driver of the No. 13 RTA bus discharged him into the street approximately fifteen feet from the curb although nothing prevented the driver from stopping the bus at the curb. In this complaint, Fant also requested permission to review the personnel file of the driver and the driver's supervisor.
When RTA failed to resolve Fant's complaint, Fant filed a complaint for declaratory judgment which the trial court dismissed pursuant to Civ.R. 12(B)(6) for misjoinder of parties. Fant appealed from this first dismissal and in Henry J. Fant v. Board of Trustees (RTA) (January 21, 1992), Cuy. App. No. 61659, unreported, we affirmed the dismissal since Fant failed to join RTA in its corporate form as a party to his original declaratory judgment action but rather, commenced the action against only the RTA Board of Trustees. The Ohio Supreme Court overruled Fant's subsequent jurisdictional motion in 66 Ohio St.3d 1509, Case. No. 93-573 during its January, 1993 term.
Fant thereafter reinstituted his complaint for declaratory judgment commencing the action against defendant-appellee RTA. In this second complaint, Fant requested the trial court declare the rights of the parties with respect to the practice of RTA's bus drivers discharging Fant from the bus at a location in the street fifteen feet distant from the curb. He also requested an injunction prohibiting RTA drivers from discharging passengers in such fashion. In addition Fant requested the court declare the rights of the parties with respect to whether or not Fant was entitled to records containing the names and addresses of RTA employees and he also requested reasonable pro se attorney fees.
Thereafter, Fant filed a notice of depositions after which RTA filed a motion for protective order claiming RTA possessed insufficient time within which to prepare for depositions and alleging that the doctrine of res judicata precluded Fant from prevailing upon the second declaratory judgment action. The trial court granted RTA's motion for protective order, without stating its reasons, after which RTA filed a second motion to dismiss Fant's second complaint for declaratory judgment. In its dismissal motion, RTA alleged (1) Fant could not maintain his declaratory judgment action since there was no justiciable controversy between the parties; (2) the legal rights of the parties were already established by law in Ohio; and (3) the action to enforce Fant's claim for public documents was improperly commenced as a declaratory judgment action when it should have been commenced as an action in mandamus.
On October 7, 1993, the trial court granted RTA's motion to dismiss pursuant to Civ.R. 12(B)(6). Fant filed a motion for findings of fact and conclusions of law but this was denied. The within appeal followed.
Appellant's third assignment of error shall be considered first and follows:
3. THE DOCTRINE OF RES JUDICATA IS NOT A BAR TO THE CASE SUB JUDICE.
This assignment has merit.
The issue of res judicata was raised by RTA in its motion for protective order. RTA claimed that since the trial court dismissed Fant's first complaint for declaratory judgment pursuant to Civ.R. 12(B)(6), res judicata barred subsequent relitigation. RTA misapplied the doctrine.
It is axiomatic that between the same parties to an action, a final judgment in a first lawsuit is conclusive as to all claims which were or might have been litigated. State, ex rel. White, v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45; National Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60; Rogers v. Whitehall (1986), 25 Ohio St.3d 67; Stromberg v. Bd. of Edn. (1980), 64 Ohio St.2d 98; McGinnis v. Donatelli (1987), 36 Ohio App.3d 120. A dismissal under Civ.R. 12(B)(6) operates as an adjudication on the merits and is, thus, a final judgment for purposes of res judicata. Mayrides v. Franklin Cty. Prosecutor's Office (1991), 71 Ohio App.3d 381.
In the case sub judice, Fant originally brought his complaint for declaratory judgment against only the RTA Board of Trustees which was never a real party in interest. The trial court dismissed this complaint pursuant to Civ.R. 12(B)(6) for misjoinder of parties, i.e., for failure to join RTA in its corporate form and this appellate court affirmed the dismissal.[2] In addition, the Supreme Court overruled Fant's subsequent jurisdictional motion. Pursuant to Mayrides, supra, this dismissal constituted a final judgment for purposes of res judicata.
Nevertheless, since Fant's original complaint for declaratory judgment failed to join RTA in its corporate form, we cannot say the Civ.R. 12(B)(6) dismissal constituted an adjudication on the merits with respect to defendant-appellee RTA. The doctrine of res judicata operates between the same parties to an action. White, supra. Since RTA was not a party to the original action, the doctrine of res judicata did not preclude Fant from recommencing the complaint for declaratory judgment against the proper party, viz., RTA.
Thus, the first dismissal constituted an adjudication on the merits between only Fant and the RTA Board of Trustees and Fant was precluded by res judicata from recommencing the same action against the RTA Board of Trustees. White, supra and its progeny. Based upon the foregoing analysis, appellant's third assignment of error has merit and is, therefore, sustained.
Appellant's first assignment of error follows:
1. THE TRIAL COURT ABUSED ITS DISCRETION BY SUSTAINING THE DEFENDANT'S CIV. R. 12(B)(6) MOTION TO DISMISS.
This assignment has merit.
We first note that appellees have not filed an appellate brief with this court. Pursuant to App.R. 18(C)[3], we may accept Fant's statement of the facts and issues as correct. In addition, when a trial court construes a complaint upon a motion to dismiss pursuant to Civ.R. 12(B)(6)[4], it must presume that all factual allegations contained in the complaint are true and it must appear beyond doubt the plaintiff can prove no set of facts which warrant recovery. Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d 541.
Revised Code Chapter 2721 provides the trial court with jurisdiction to render a declaratory judgment so long as a declaratory judgment will terminate a controversy or remove an uncertainty.[5] See Walker v. Walker (1936), 132 Ohio St. 137; Radaszewski v. Keating, Exrx., et al (1943), 141 Ohio St. 489; State, ex rel. Greater Cleveland Regional Transit Auth., v. Griffin (1991), 62 Ohio App.3d 516.
Moreover, a court can dismiss a declaratory judgment action pursuant to Civ.R. 12(B)(6) for only two reasons, viz., (1) there is neither a justiciable issue nor an actual controversy between the parties; or (2) in accordance with R.C. 2721.07, the declaratory judgment will not terminated the uncertainty or controversy. Fioresi v. State Farm Mut. Auto. Ins. Co. (1985), 26 Ohio App.3d 203; AEI Group, Inc. v. Ohio Dept. of Commerce (1990), 67 Ohio App.3d 546.
In Driskill v. City of Cincinnati (1940), 66 Ohio App. 372, the court defined two criteria which must be present in order for a justiciable issue to exist, viz., (1) plaintiff must have a right or duty owing by defendant; and (2) the denial of plaintiff's right or duty by defendant must be a present event rather than a hypothetical future event.
In his complaint for declaratory judgment, Fant first requested a declaration with respect to his right to be discharged from an RTA bus close to the curb and an injunction to enforce the declaration. Fant claimed he was discharged by an RTA bus driver approximately fifteen feet from the curb when the driver could have stopped the bus at the curb. Fant also stated numerous other RTA drivers had discharged him in the same manner. Fant further claimed such discharge from the bus placed him in danger of being struck and injured by oncoming motor vehicles particularly in light of Fant's physical disabilities. Fant stated he asked various RTA drivers to discharge him close to the curb but the drivers refused to do so. Fant also filed a complaint(s)[6] with RTA regarding the discharge location(s).
R.C. 4511.69(A) mandates the right and duty which Fant claims was breached by RTA and states in relevant part as follows:
Every vehicle stopped or parked upon.a roadway where there is an adjacent curb shall be stopped or parked with the right-hand wheels of such vehicle parallel with and not more than twelve inches from the right-hand curb, unless it is impossible to approach so close to the curb; in such case the stop shall be made as close to the curb as possible. ...
In addition, in The Cleveland Ry. Co. v. Crooks (1932), the Ohio Supreme Court stated in relevant part as follows:
The safe and sane point for the...
To continue reading
Request your trial