Trautwein v. Sorgenfrei

Decision Date27 June 1979
Docket NumberNo. 78-1294,78-1294
Citation391 N.E.2d 326,58 Ohio St.2d 493
Parties, 12 O.O.3d 403 TRAUTWEIN, Trustee, et al., Appellees, v. SORGENFREI, Exec. Dir., et al., Appellants.
CourtOhio Supreme Court

Syllabus by the Court

A point of law or a fact which was actually and directly in issue in the former action, and was there passed upon and determined by a court of competent jurisdiction, may not be drawn in question in a subsequent action between the same parties or their privies. The prior judgment estops a party, or a person in privity with him, from subsequently relitigating the identical issue raised in the prior action. (Whitehead v. Genl. Tel. Co., 20 Ohio St.2d 108, 254 N.E.2d 10, paragraph two of the syllabus approved and followed.)

On February 1, 1977, plaintiffs-appellees filed a complaint in the Court of Common Pleas of Wood County against the defendants-appellants. The complaint alleged that overflow from the sewer drainage and storm sewer system of the city of Bowling Green had damaged appellees' property to the extent that the city had appropriated it without due process of law. Appellees sought, among other modes of relief, a writ of mandamus directing appellants to commence and complete appropriation proceedings to ascertain "just compensation" for the damage that had taken place.

On March 14, 1977, appellants answered and filed a motion to dismiss and memorandum in support thereof asserting that the present suit was barred in light of the doctrine of Res judicata. Appellants contended that a prior judgment of the Court of Common Pleas of Wood County in case No. 76-CIV-55 estopped the present plaintiffs-appellees from relitigating issues raised in the present lawsuit.

On April 19, 1977, the trial court filed its memorandum decision and judgment entry dismissing the complaint. In a split decision the Court of Appeals reversed and remanded the cause for further proceedings consistent with the majority opinion.

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

Hanna & Hanna and M. Shad Hanna, Bowling Green, for appellees.

Ritter, Boesel, Robinson & Marsh and William S. McCready, Toledo, for appellants.

CELEBREZZE, Chief Justice.

The fundamental issue examined by both the trial court and the Court of Appeals concerns the concept of Res judicata and its application to the record before us. The doctrine of Res judicata is separated into two distinct principles as explained by this court in Whitehead v. Genl. Tel. Co. (1969), 20 Ohio St.2d 108, at page 112, 254 N.E.2d 10, at page 13:

"The doctrine of Res judicata involves two basic concepts. Norwood v. McDonald (1943), 142 Ohio St. 299, 52 N.E.2d 67. First, it refers to the effect a judgment in a prior action has in a second action based upon the same cause of action. The Restatement of the Law, Judgments, Section 45, uses the terms 'merger' and 'bar'. If the plaintiff in the prior action is successful, the entire cause of action is 'merged' in the judgment. The merger means that a successful plaintiff cannot recover again on the same cause of action, although he may maintain an action to enforce the judgment. If the defendant is successful in the prior action, the plaintiff is 'barred' from suing, in a subsequent action, on the same cause of action. The bar aspect of the doctrine of Res judicata is sometimes called 'estoppel by judgment.' Restatement of the Law, Judgments, Section 45, comment (b).

"The second aspect of the doctrine of Res judicata is 'collateral estoppel.' While the merger and bar aspects of Res judicata have the effect of precluding a plaintiff from relitigating the same cause of action against the same defendant, the collateral estoppel aspect precludes the relitigation, in a second action, of An issue that has been actually and necessarily litigated and determined in a prior action which was based on a different cause of action. Restatement of the Law, Judgments, Section 45, comment (c), and Section 68(2); Cromwell v. County of Sac (1876), 94 U.S. 351, 24 L.Ed. 195. In short, under the rule of collateral estoppel, even where the cause of action is different in a subsequent suit, a judgment in a prior suit may nevertheless affect the outcome of the second suit."

Both aspects of Res judicata were raised in appellants' motion to dismiss although the trial judge restricted his scrutiny and decision to the concept of "estoppel by judgment." The assignment of error raised in the Court of Appeals merely asserted that the granting of the motion to dismiss was against the weight of the evidence and "contrary to law." However, both facets of Res judicata were addressed in the briefs of the respective parties.

The Court of Appeals did not discuss the dichotomy inherent in that doctrine, but merely held that the doctrine of Res judicata was not dispositive relying on a general definition of that term found in Bouvier's Law Dictionary. In Judge Wiley's dissenting opinion he concluded that the concept of collateral estoppel created a bar to the present suit.

In order to determine whether either aspect of Res judicata applies it is necessary to examine the first lawsuit involving these parties. On March 4, 1976, plaintiffs-appellees James Trautwein, Trustee of the Howard Trautwein Memorial Trust, Clarence Nopper and Douglas R. Valentine, d. b. a. Haven House Manor Ltd., filed a complaint against Robert Sorgenfrei, Executive Director of Municipal Utilities, City of Bowling Green, et al., in the Court of Common Pleas of Wood County in case No. 76-CIV-55. The other defendants, also city officials, were the Utilities Engineer, the Municipal Administrator, and the members of both the Board of Public Utilities and the Department of Public Utilities. All the named defendants were charged with the operation and management of the city's sewer system.

The complaint alleged that the property of the plaintiffs had been damaged by flooding caused by the city's sewer system. In paragraph No. 5 of the complaint it was alleged that the flooding was due to a negligent failure of the defendants to perform their lawful duties creating irreparable damage to the plaintiffs to which there was no adequate remedy at law. In addition, it was alleged that the acts on the part of the defendants constituted a "taking of property without due process of law."

The complaint sought injunctive relief forbidding the addition of any new users to the sewer system served by the lift station currently servicing the plaintiffs. Moreover, it sought a mandatory injunction ordering the defendants "to immediately and forthwith rent, purchase or procure sufficient standby, supplemental or breakdown equipment to handle the load now entering the existing pump station and all peak loads that may occur in the future * * *."

On June 15, 1976, the trial judge rendered his decision and came to the following conclusions concerning the appellees' responsibility for the flooding that had occurred:

"The facts as determined by the Court are that the plaintiff's complex or apartments and a church rectory were constructed in 1973. A sewer was connected from the complex to the existing city sewer which runs east and west along Wooster Street. The connection of the private sewer to that of the city was made at or near the lift station situated at the corner of Mercer Road and East Wooster Street. The tap-in site was determined by the employees of the city, but the site for the complex and the elevation of the complex was determined solely by the plaintiffs without supervision or approval of any of the defendants in this action. The city sewer was designed as a sanitary sewer, but large quantities of storm water find their way into the sewer during periods of heavy rainfall. The basement floor drains of the complex apparently were placed at an elevation below certain portions of the city sewer line, and during the springs of 1973, 1974, 1975, and 1976 the quantity of sewage and storm water in the sewer exceeded the capacity of the lift pumps causing water and raw sewage to back up into the sewer in a sufficient volume to cause the raw sewage and water to back up into the basement apartments and into the basement of the rectory. In June of 1976, because of an electrical malfunction, the pumps in the lift station ceased to operate and again the sewage reached sufficient height in the city sewer to cause the raw sewage to back up into the drains of the basement apartments.

"Some time after the 1973 flooding situation the city installed a warning system device consisting of a red light and an audible signal which would be activated at any time the pumps became inoperable. In addition to the visual and audible signal at the lift station, the activity of the pumps was recorded on a graph of the Sewage Treatment Plant for the use and observation of the Sewage Treatment Plant personnel.

"The testimony introduced at the hearing clearly established that the plaintiffs selected the level of the basement drains. As the city's storm sewers were in use, it was known to the plaintiffs or should have been known by them that the possibility of having storm water and sewage back up into the basement was very great. The Court determines that the plaintiffs have assumed the risk of this occurrence happening during periods of heavy rains or upon a malfunctioning of equipment.

"Assuming, therefore, that the plaintiffs accepted at the time of construction the risk of flooding, the Court is then faced with the determination of whether anything has occurred since the construction of the apartments which would have been unforeseen by the plaintiffs or which constituted an acceptance of a responsibility or duty on the part of the defendants. Since the construction of the apartment complex there have been many additional tap-ins to the Bowling Green sewer system which does add additional sewage burden to the lift station in question. However, all testimony at...

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