Kirkhart v. Keiper - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Kirkhart v. Keiper, 101 Ohio St.3d 377, 2004-Ohio-1496.]

KIRKHART, APPELLEE, v. KEIPER ET AL., APPELLANTS.
[Cite as Kirkhart v. Keiper, 101 Ohio St.3d 377, 2004-Ohio-1496.]
Civil procedure -- For purposes of res judicata, privity between defendants is
established where a plaintiff brings two lawsuits against the same public
officials for acts performed in their official roles, even though the
defendants are sued in their official capacities in one lawsuit and in their
individual capacities in the other.
(No. 2003-0046 Submitted December 2, 2003 Decided April 14, 2004.)
APPEAL from the Court of Appeals for Portage County, No. 2001-P-0069,
2002-Ohio-6472.
__________________
SYLLABUS OF THE COURT
For purposes of res judicata, privity between defendants is established where a
plaintiff brings two lawsuits against the same public officials for acts
performed in their official roles, even though the defendants are sued in
their official capacities in one lawsuit and in their individual capacities in
the other.
__________________

FRANCIS E. SWEENEY, SR., J.
{¶1} On April 28, 1997, Beverly Kirkhart, plaintiff-appellee, filed suit
in federal court against the Portage County Commissioners, including defendants-
appellants Christopher Smeiles and Charles Keiper. Her complaint alleged
federal claims of sex discrimination, handicap discrimination, and retaliation.
The jury found in Kirkhart's favor. She was awarded $940,000 in damages,
reinstated, and given back pay and benefits. Pursuant to federal law, the trial
court placed a $300,000 cap on the damage award.

SUPREME COURT OF OHIO
{¶2} Subsequently, on February 8, 2000, Kirkhart filed the instant suit
in state court against Smeiles, Keiper, and Jon Barber, in their individual
capacities.1 She alleged state-law claims under R.C. 4112.99 of sex
discrimination, handicap discrimination, and retaliation. Appellants filed a
motion for summary judgment, arguing that appellee's claims were barred by res
judicata. The trial court agreed and granted summary judgment in favor of
appellants. The court of appeals reversed, finding that res judicata did not apply.
The court reasoned that there was no privity between the parties, since appellants
were first sued in their official capacities in federal court and later sued in their
individual capacities in state court.
{¶3} The cause is before the court upon the acceptance of a
discretionary appeal.
{¶4} In this appeal, we are asked to decide whether res judicata bars
appellee from pursuing her state-law causes of action against the defendants in
their individual capacities.
{¶5} Under the doctrine of res judicata, "[a] valid, final judgment
rendered upon the merits bars all subsequent actions based upon any claim arising
out of the transaction or occurrence that was the subject matter of the previous
action." Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226,
syllabus. Res judicata promotes the principle of finality of judgments by
requiring plaintiffs to present every possible ground for relief in the first action.
Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62, 558 N.E.2d
1178.
{¶6} The state-law claims asserted in the instant lawsuit (sex
discrimination, handicap discrimination, and retaliation for filing a discrimination

1. Jon Barber is not a party to this appeal.

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January Term, 2004
claim) parallel those brought in federal court, for which appellee has already been
compensated. Appellee argues that she was unable to pursue her state-law claims
against the commissioners in their individual capacities in the prior lawsuit
because at that time, in April 1997, there was no cause of action for individual
liability under either the federal law or R.C. Chapter 4112. She asserts that it was
not until we decided Genaro v. Cent. Transport, Inc. (1999), 84 Ohio St.3d 293,
703 N.E.2d 782, in 1999, that a cause of action existed for pursuing claims of
individual liability for violations of R.C. Chapter 4112.
{¶7} This argument lacks merit. A number of appellate and federal
courts in Ohio had held that individual liability did exist prior to 1997. See, e.g.,
DeLoach v. Am. Red Cross (N.D. Ohio 1997), 967 F.Supp. 265, 268; Griswold v.
Fresenius USA, Inc. (N.D.Ohio 1997), 964 F.Supp. 1166, 1169-1171; Davis v.
Black (1991), 70 Ohio App.3d 359, 370, 591 N.E.2d 11. We acknowledged this
fact in Genaro, 84 Ohio St.3d at 297, 703 N.E.2d 782, when we stated: "[W]hile
this court has not previously spoken on this issue, three decisions from the courts
of appeals of this state have held that liability may be imposed against supervisors
and managers in their individual capacity for conduct in violation of R.C. Chapter
4112." Even if no courts had yet acknowledged the right to sue officials in their
individual capacities, the right was conferred by statute, not court decisions.
Under these circumstances, appellee clearly could have asserted any claims
against the commissioners in their individual capacities in the prior action.
{¶8} This does not end our analysis, however. We must still determine
whether the failure to present all claims in the first lawsuit precludes appellee
from asserting these claims in the present lawsuit. At issue is whether there is an
identity of parties in the two actions. In order to invoke res judicata, one of the
requirements is that the parties to the subsequent action must be identical to or in
privity with those in the former action. Johnson's Island, Inc. v. Danbury Twp.
Bd. of Trustees (1982), 69 Ohio St.2d 241, 243, 23 O.O.3d 243, 431 N.E.2d 672.
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SUPREME COURT OF OHIO
We have previously stated that "[w]hat constitutes privity in the context of res
judicata is somewhat amorphous." Brown v. Dayton (2000), 89 Ohio St.3d 245,
248, 730 N.E.2d 958. We have applied a broad definition to determine whether
the relationship between the parties is close enough to invoke the doctrine. Id.
Thus, "a mutuality of interest, including an identity of desired result," may create
privity. Id.
{¶9} In determining whether to invoke the doctrine of res judicata, we
must decide whether there is privity between the defendants. In arguing that
privity exists, appellants initially contend that they were being sued in both
lawsuits in their individual capacities. For support, they claim that in the federal
lawsuit, they were named as individuals and the prayer asked for judgment
against the defendants, jointly and severally. (Defendants did not support this
claim with evidence acceptable under Civ.R. 56. They merely attached to a late-
filed reply brief a document purporting to be the federal complaint.)

Alternatively, appellants argue that even if they were not sued in their individual
capacities in the prior lawsuit, there is still privity because the litigation arises out
of the same conduct and the alleged wrongdoing stems solely from conduct in
their official duties.
{¶10} In contrast, appellee contends that there is no privity. She argues
that in the prior lawsuit, the defendants were being sued in their official
capacities, whereas in the present lawsuit they are being sued in their individual
capacities. Thus, appellee maintains that the defendants are essentially different
real parties in interest and that res judicata does not apply, since litigation against
individuals in one capacity does not preclude relitigation in another capacity.
{¶11} Even assuming that the defendants were named as individuals in
the prior lawsuit and the prayer sought joint and several liability, we conclude that
these facts alone do not demonstrate that the defendants were being sued in their
individual capacities. The mere mentioning of joint and several liability does not
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January Term, 2004
necessarily provide notice in a federal lawsuit that a plaintiff is seeking damages
directly from the named individual defendants. Nix v. Norman (C.A.8, 1989), 879
F.2d 429, 431. Moreover, even if we were to accept defendant's improper
submission of the federal complaint, paragraph two of the complaint alleged:
"Defendants are the County Commissioners for Portage County, and at all times
pertinent herein, were acting on behalf of or in the interests of Portage County."
Clearly, the individuals named were being sued in their official capacities, not in
their individual capacities, as appellants contend.
{¶12} With this in mind, we consider whether the defendants, first sued
in their official capacities and then sued in their individual capacities, are in
privity. We recognize that some courts have taken the position urged by appellee
that " `litigation in one capacity, individual or representative, does not preclude
relitigation in a different capacity, individual or representative.' " Hussey v.
Aetna Life Ins. Co. (1995), 104 Ohio App.3d 6, 10, 660 N.E.2d 1228, quoting
Wright, Miller & Cooper, Federal Practice and Procedure, Jurisdiction (1981),
Section 4454; see, also, Andrews v. Daw (C.A.4, 2000), 201 F.3d 521, 526;
Headley v. Bacon (C.A.8, 1987), 828 F.2d 1272, 1279.
{¶13} Nevertheless, we find more persuasive those decisions that hold
otherwise. Under this position, res judicata is applied where the defendants are
sued in both capacities if the alleged impropriety stems solely from acts
performed in the defendant's official capacity. Thus, if the complaint does not
allege that the individuals committed any improper acts separate and apart from
acts performed in their official capacities, then the plaintiff is barred from
pursuing his or her second lawsuit. Brown v. Osier (Me.1993), 628 A.2d 125,
128-129. As stated by the court in Lamb v. Geovjian (1996), 165 Vt. 375, 380,
683 A.2d 731, "when a party is sued as an individual for actions taken solely in
her official role, res judicata may not be circumvented." The underlying
rationale is that " `a party cannot escape the rule of res judicata through expansive
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SUPREME COURT OF OHIO
pleading.' " Brown v. Osier, 628 A.2d at 128, quoting Cohen v. Shea
(D.Mass.1992), 788 F.Supp. 66, 68.
{¶14} Here, the claims asserted in both complaints are based upon the
same conduct, and all of the alleged wrongdoing stems from conduct by the
defendants in their official roles. In fact, as the trial court so aptly noted, "all of
the acts of Smeiles and Keiper arose exclusively in their exercise of official duties
and responsibilities as an employer, albeit a governmental employer. The acts
about which Plaintiff complains were Smeiles's and Keiper's decisions to not
give her the dog warden's rate of pay, not accommodating her disability,
appointing Jon Barber rather than herself as dog warden, and discharging her
from employment. All of these acts were taken -- and could only have been
taken -- in the exercise of their official duties and responsibilities as public
officials and due to the official position that Smeiles and Keiper occupied as
public officials. None of these acts could have been taken by Smeiles and Keiper
had they been acting in a personal capacity as mere citizens. Thus, all of the
defenses, legal rights, and interests of Smeiles and Keiper, whether official or
personal, are identical between the two lawsuits." The trial court therefore
concluded that privity existed and that res judicata applied.
{¶15} We agree with the rationale of the trial court and hold that for
purposes of res judicata, privity between defendants is established where a
plaintiff brings two lawsuits against the same public officials for acts performed
in their official roles, even though the defendants are sued in their official
capacities in one lawsuit and in their individual capacities in the other. Applying
this principle to this case, we find that all of the acts of the commissioners were
performed in their official capacities. Moreover, Kirkhart was seeking redress in
both causes of action for the same discriminatory acts and was alleging similar
causes of action against the appellants. Clearly, under these circumstances, there
is a mutuality of interest between the commissioners as office holders and as
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January Term, 2004
individuals. Therefore, we find that privity exists for res judicata purposes. Thus,
appellee should have included the present claims in her federal lawsuit. The
failure to do so precludes her from asserting them at this juncture. Accordingly,
we reverse the judgment of the court of appeals.
Judgment reversed.

MOYER, C.J., LUNDBERG STRATTON, O'CONNOR and O'DONNELL, JJ.,
concur.

RESNICK and PFEIFER, JJ., dissent.
__________________
Thompson Law Offices, Dennis R. Thompson and Christy B. Bishop, for
appellee Beverly Kirkhart.
Buckingham, Doolittle & Burroughs and Vincent J. Tersigni; Mazanec,
Raskin & Ryder Co., L.P.A., John T. McLandrich and Todd M. Raskin, for
appellant Charles Keiper.
Tzangas, Plakas, Mannos & Recupero and James McHugh; Mazanec,
Raskin & Ryder Co., L.P.A., John T. McLandrich and Todd M. Raskin, for
appellant Christopher Smeiles.
Downes, Hurst & Fishel, Marc A. Fishel and Dolores F. Torriero , urging
reversal for amicus curiae County Commissioners' Association of Ohio and
County Risk Sharing Authority.
Barry M. Byron, Stephen L. Byron and John Gotherman, urging reversal
for amici curiae Ohio Municipal League and the Ohio Township Association.
__________________
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