Johnson's Island, Inc. v. Board of Tp. Trustees of Danbury Tp.

• Decision Date: 17 February 1982
• Docket Number: No. 81-95,81-95
• Parties: , 23 O.O.3d 243 JOHNSON'S ISLAND, INC., Appellant, v. BOARD OF TOWNSHIP TRUSTEES OF DANBURY TOWNSHIP et al., Appellees.
• Court: Ohio Supreme Court

Page 241

69 Ohio St.2d 241

431 N.E.2d 672, 23 O.O.3d 243

JOHNSON'S ISLAND, INC., Appellant, v. BOARD OF TOWNSHIP TRUSTEES OF DANBURY TOWNSHIP et al., Appellees.

No. 81-95.

Supreme Court of Ohio.

Feb. 17, 1982.

Syllabus by the Court

1. When in a prior injunction action brought to enjoin the defendant landowner's violation of a zoning law, the defendant asserts the affirmative defense of non-conforming use, but does not assert the unconstitutionality of the law, the landowner is, on the principle of res judicata, barred from later bringing a declaratory judgment action alleging such law to be unconstitutional.

2. A landowner against whom enforcement of a zoning law is sought may assert as a defense the unconstitutionality of the zoning law as applied to his land without the necessity of exhausting the available administrative remedies.

This is an appeal from the affirmance of a summary judgment granted to the appellees, Board of Township Trustees of Danbury Township, and its individual members. Johnson's Island, Inc., appellant, brought this declaratory judgment action in the Court of Common Pleas of Ottawa County, seeking a determination that the Zoning Resolution of Danbury Township was unconstitutional as applied to appellant's property.

The facts giving rise to the action, and to this appeal, are that Johnson's Island is a relatively small 275-acre island in Lake Erie lying in Sandusky Bay within Danbury Township, Ottawa County, connected to the mainland by a causeway. In 1956, the appellant purchased the entire island with the exception of a Confederate Soldiers' Cemetery owned by the United States Veterans Administration, the property being acquired for the purpose of subdividing and selling building lots.

Located upon Johnson's Island was a limestone quarry which had been actively mined a number of years prior to the appellant's purchase, but at the time was inactive. The appellant recorded and obtained approval of a subdivision plan for the sale of lots, principally located around the perimeter of the island, for the construction of summer homes. In addition to this sales activity, it appears that the appellant, sometime after the purchase, also began certain activities in the quarry such as draining the quarry of water, blasting and removing loose limestone for building a marina, and removing some of the stone for building a causeway to the mainland.

In 1975, a comprehensive zoning plan was adopted by Danbury Township in which the entire island was zoned residential (multi-family residential district (R-3) ). Prior to the adoption of the zoning plan, the island was developed with approximately 75 improved home sites, which lots had been sold by Johnson's Island, Inc.

In 1977, the homeowners' association, Johnson's Island Club, Inc., and one of its members, sought and obtained an injunction in the Court of Common Pleas of Ottawa County, case No. 19567, to prevent Johnson's Island, Inc., from conducting any quarry operations in the limestone quarry. In their complaint the plaintiffs alleged, inter alia, that the ongoing quarrying operation violated the permitted use classification of plaintiffs' property under the zoning resolution, in that "quarrying" was a use permitted only in a heavy manufacturing district (M-2).

With respect to the potential zoning issues in this initial controversy, Johnson's Island elected to rely on the fact that it had established a "nonconforming use" by virtue of quarrying the property prior to the adoption of the zoning resolution, and even thereafter. Johnson's Island did not challenge the constitutionality of the township zoning regulation as applied to its quarry site.

The trial court, in its findings of fact and conclusions of law, rejected defendants' argument, holding that Johnson's Island had failed to establish a nonconforming use in existence at the time of the enactment of the Danbury zoning resolution in 1975. On July 7, 1977, the trial court issued an injunction to prevent further quarrying. The Court of Appeals affirmed, and this court overruled a motion to certify the record.

On August 4, 1978, the appellant filed a complaint in the instant matter seeking a declaratory judgment, framing the prayer in two issues: (1) that the residential classification is unconstitutional as applied to appellant's land, and (2) that the parcel which consisted of some 75.6 acres of appellant's property falls properly within an M-2 heavy manufacturing classification. The purpose of the desired zoning change was to enable the appellant to conduct a limestone quarrying operation on the island.

In answer to the complaint for declaratory judgment, the appellees filed a motion for summary judgment, contending that the appellant and other quarrying contractors were defendants in the prior case, No. 19567, in the Court of Common Pleas of Ottawa County, and that the judgment in such action was res judicata to the issues presented in this declaratory judgment action. The trial court agreed, and granted summary judgment for the appellees. The Court of Appeals affirmed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Garofoli, Kraus, Hill, Roth & Bartunek, Anthony J. Garofoli, William J. Kraus, Kenneth A. Kraus, Cleveland, and Gene W. Graves, Oak Harbor, for appellant.

McDonald, Hopkins & Hardy Co., L.P.A., John R. Jewitt, Jr., Cleveland, and Lowell S. Petersen, Pros. Atty., for appellees.

HOLMES, Justice.

We agree with the Court of Appeals that the doctrine of res judicata supports the summary judgment entered for the appellees. It is fundamental that the principle of res judicata is quite universally known and accepted law. Such principle is that "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." Norwood v. McDonald (1943), 142 Ohio St. 299, 52 N.E.2d 67, paragraph one of the syllabus; 46 American Jurisprudence 2d 558-559, Judgments, Section 394. The latest pronouncement of this court on the subject is found in Trautwein v. Sorgenfrei (1979), 58 Ohio St.2d 493, 391 N.E.2d 326.

As basically set forth in Norwood v. McDonald, the concept of res judicata may have a differing meaning and effect based upon which party may be asserting it. Also, the doctrine may be applied in differing manners. If the plaintiff is successful, the cause of action is "merged" in the judgment. If the defendant is successful in the prior action, the plaintiff is "barred" from thereafter bringing suit on the same cause of action. Second, the application of the concept of res judicata not only precludes the relitigation of the same cause as between the parties, its "collateral estoppel" aspect precludes relitigating legal or factual issues in a second lawsuit that were the general subject of litigation in the first action even though the second is a different cause of action.

The doctrine of res judicata also embraces the policy that a party must make good his cause of action or establish his defenses "* * * by all the proper means within his control, and if he fails in that respect, purposely or negligently, he will not afterward be permitted to deny the correctness of the determination, nor to relitigate the same matters between the same parties." Covington & Cincinnati Bridge Co. v. Sargent (1875), 27 Ohio St. 233, paragraph one of the syllabus.

As a general rule, in order for the principle of res judicata to be applicable, the parties to the subsequent action must be identical to those of the former action or be in privity with them. Lakewood v. Rees (1937), 132 Ohio St. 399, 403, 8 N.E.2d 250; Norwood v. McDonald, supra; Cole v. Ottawa Home & Sav. Assn. (1969), 18 Ohio St.2d 1, 8, 246 N.E.2d 542.

All such holdings are based upon the requirement that there be mutuality of estoppel. Whitehead v. Genl. Tel. Co. (1969), 20 Ohio St.2d 108, 113, 254 N.E.2d 10. The mutuality requirement is closely related to, and for all practical purposes co-extensive with, the requirement of identity of parties or privity. See Annotation, 31 A.L.R.3d 1044. The estoppel effect of the judgment operates mutually if the person taking advantage of the judgment would have been bound by it had the result been the opposite. Conversely, a stranger to the prior judgment, being not bound thereby, is not entitled to rely upon its effect under the claim of res judicata or collateral estoppel. See 46 American Jurisprudence 2d 673, Judgments, Section 521.

Applying the principle to the facts of this case, we find that there was a mutuality of interest between appellees, township trustees in this case, and the plaintiff landowners' association in the prior injunction action.

The prior action was commenced pursuant to Section 1206.2 of the Danbury zoning resolution which authorized a property owner, damaged by land use in violation of the zoning, to commence, among others, an injunction action. The township trustees, in like manner, had the authority to enforce the township zoning or invoke injunction to prevent the violation of the zoning resolution. One of the defendants was Johnson's Island, Inc., the appellant here. The zoning resolution alleged to be unconstitutional in this action was in issue in the prior action and was relied upon by the plaintiffs in that case.

Although the trial court in the injunction action did not specifically address the constitutionality of the zoning resolution, it apparently did review the pertinent sections of such resolution in order to determine the existence or absence of a nonconforming use as alleged by Johnson's Island, Inc. The proof necessary to sustain an allegation of the nonconforming use was evidence of the zoning resolution, a...