Shaper v. Tracy - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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1 Shaper, Appellant, v. Tracy, Tax Commr., Appellee.
2 [Cite as Shaper v. Tracy (1996), ______ Ohio St.3d ______.]
3 Civil procedure -- Judgments -- Valid, final judgment rendered upon
4
the merits bars all subsequent actions based upon any claim
5
arising out of the transaction that was the subject matter of the
6
previous action.
7
(No. 95-389 -- Submitted April 30, 1996 -- Decided August 7, 1996.)
8 Appeal from the Board of Tax Appeals, No. 93-X-1032.
9
This is the second of two actions which Serene G. Shaper has
10 appealed to this court. This appeal results from the Board of Tax Appeals'
11 ("BTA's") denial of Shaper's claims for personal income tax refunds.
12
Prior to filing her refund claims with the Tax Commissioner, Shaper
13 filed a declaratory judgment action with the Cuyahoga County Common
14 Pleas Court, which was later transferred to the Franklin County Common
15 Pleas Court. The Franklin County court denied Shaper's motion for
16 summary judgment. Shaper appealed to the Franklin County Court of
17 Appeals, which affirmed the common pleas court. Shaper v. Tracy (1994),
18 97 Ohio App.3d 760, 647 N.E.2d 550. A discretionary appeal and cross-
19 appeal to this court were not allowed. Shaper v. Tracy (1995), 71 Ohio

1 St.3d 1477, 647 N.E.2d 1257. Shaper subsequently filed a petition for a
2 writ of certiorari with the United States Supreme Court, which was denied
3 on October 2, 1995. Shaper v. Tracy (1995), 516 U.S. __, 116 S.Ct. 274,
4 133 L.Ed.2d 195.
5
At the same time Shaper filed her notice of appeal in the instant case,
6 she also filed a motion to consolidate this appeal with her then pending
7 appeal of the declaratory judgment action. In her motion to consolidate
8 Shaper stated, "[b]oth appeals involve the same legal issues" and "the same
9 issues are raised in both appeals * * *." The tax years at issue in both
10 appeals are the same.
11
The commissioner filed a motion to dismiss or affirm the BTA's
12 decision based upon res judicata and/or collateral estoppel. We denied the
13 commissioner's motion, stating that res judicata raises merit questions that
14 are to be resolved in a merit decision. Shaper v. Tracy (1995), 73 Ohio
15 St.3d 1211, 654 N.E.2d 1268.
16
This cause is now before this court upon an appeal as of right.

2

1
Krislov & Associates, Ltd. and Clinton A. Krislov; Moses Krislov Co.,
2 L.P.A., and Moses Krislov; Benesch, Friedlander, Coplan & Aronoff and
3 Leon Friedberg, pro hac vice,for appellant.
4
Betty D. Montgomery, Attorney General, and Lawrence D. Pratt,
5 Assistant Attorney General, for appellee.
6
Per Curiam. The legal issues presented in this case are, by Shaper's
7 own admission, the same legal issues previously litigated by the parties in
8 Shaper's declaratory judgment action. In Grava v. Parkman Twp. (1995),
9 73 Ohio St.3d 379, 653 N.E.2d 226, syllabus, we held that "[a] valid, final
10 judgment rendered upon the merits bars all subsequent actions based upon
11 any claim arising out of the transaction or occurrence that was the subject
12 matter of the previous action." See, also, Superior's Brand Meats v. Lindley
13 (1980), 62 Ohio St.2d 133, 16 O.O.3d 150, 403 N.E.2d 996.
14
Litigation of the legal issues raised by Shaper's refund claims is
15 barred by res judicata in the instant case.
16
The decision of the BTA is affirmed.
17

Decision affirmed.

3

1
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK
2 and SHERCK, JJ., concur.
3
JAMES R. SHERCK, J., of the Sixth Appellate District, sitting for
4 STRATTON, J.
5

4