[Cite as Crawford v. Foster, 2016-Ohio-625.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                              WASHINGTON COUNTY


DARRELL L. CRAWFORD, et al.,      :
                                  :   Case No. 15CA15
     Plaintiffs-Appellants,       :
                                  :
     vs.                          :   DECISION AND JUDGMENT
                                  :   ENTRY
WAID K. FOSTER, et al.,           :
                                  :
     Defendants-Appellees.        :   Released: 02/10/16
____________________________________________________________
                            APPEARANCES:

John M. Halliday, Marietta, Ohio, for Appellants.

Matthew P. Mullen, Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.,
New Philadelphia, Ohio, for Appellees.
_____________________________________________________________

McFarland, J.

         {¶1} Darrell L. Crawford (hereinafter “Crawford”) appeals the March

19, 2015 judgment entry of the Washington County Court of Common

Pleas, General Division, which granted the Motion for Summary Judgment

filed by Appellee Waid K. Foster (hereinafter “Foster”). Crawford sets forth

three assignments of error which all relate to the merits of an action he

previously brought against his neighbor Foster in the Marietta Municipal

Court, Small Claims Division. Upon our review of the record, we find

Crawford’s arguments are barred by application of the doctrine of res
Washington App. No. 15CA15                                                      2

judicata. As such, we decline to consider them and affirm the judgment of

the trial court.

                                    FACTS

       {¶2} The pleading docket in this case reflects that Crawford and his

spouse filed a complaint against Foster and his spouse on November 14,

2014 in the Washington County Court of Common Pleas for trespass,

damages as a result of the alleged trespass, emotional distress due to Mr.

Foster’s alleged trespass, personal injuries, pain and suffering, and loss of

consortium. The Fosters filed a timely answer denying all allegations

contained in the complaint except that the Fosters admitted the parties are

residents of Washington County; that the Crawfords are married and own

property at 103 Schilling Street in Marietta, Ohio; and that the Fosters own

property contiguous to the Crawfords’ property. The Fosters further asserted

additional affirmative defenses, including the doctrine of res judicata.

       {¶3} The Fosters served discovery requests. The trial court set the

matter for a case management conference on February 17, 2015. On

February 12, 2015, the Fosters filed a motion for summary judgment arguing

Crawfords’ claims are barred by the doctrine of res judicata.

       {¶4} In their motion, the Fosters pointed out the Crawfords had filed a

previous case against them in the Marietta Municipal Court, Small Claims
Washington App. No. 15CA15                                                   3

Division. The Fosters argued the Crawfords’ claims against them in the

Common Pleas Court arose from the same transactions or series of

transactions which had been resolved in the prior municipal court case. The

Fosters have referenced the prior municipal court action as “Crawford I.”

      {¶5} The Fosters pointed out in both cases the Crawfords argued that

their property adjoining the Fosters’ property had been trespassed upon by

Mr. Foster and that he had removed a fence and fence posts belonging to the

Crawfords. The Fosters also pointed out in both cases, Mr. Crawford

claimed damages to his property and that Mr. Crawford fell, suffering

personal injuries. The common pleas complaint added Mrs. Crawford and

Mrs. Foster as parties. The only new claim in the common pleas complaint

was that Mrs. Crawford asserted a claim for loss of consortium.

      {¶6} In the motion for summary judgment, the Fosters concluded that

a previous valid final judgment had been rendered on the Crawfords’ claims

in the municipal court decision. The Fosters attached certified copies of the

Marietta Municipal Court’s Magistrate’s Decision, dated May 28, 2013; the

Objection to Magistrate’s Report filed June 13, 2013; and the Entry of

Orders Upon Report of Magistrate dated December 19, 2013. The Fosters

concluded that the Crawfords’ claims in the common pleas court were

governed by the doctrine of res judicata. The Fosters further argued that Mr.
Washington App. No. 15CA15                                                    4

Crawford and his wife were in privity as co-owners of the property and that

the prior decision bound Mrs. Crawford as well. Finally, the Fosters pointed

out Mrs. Crawford’s loss of consortium claim was derivative in nature, and

was dependent on the success of her husband’s personal injury claim which

had failed and was now barred. As such, her consortium claim was also

barred.

      {¶7} The Crawfords filed a motion in opposition to the motion for

summary judgment essentially arguing only that application of the doctrine

of res judicata would effectually deny the spouses their day in court. The

Washington County Court of Common Pleas agreed with the Fosters. On

March 11, 2015, the trial court granted the Fosters’ motion for summary

judgment, finding no genuine issues of material fact and that the dispute had

been resolved in the prior adjudication in Marietta Municipal Court. On

March 19, 2015, the court entered its final judgment entry dismissing the

Crawfords’ complaint with prejudice and noting the entry was a final

appealable judgment. We reference the common pleas court case and

decision as “Crawford II.”

      {¶8} This timely appeal followed. On April 16, 2015, the Crawfords

also filed a civil docket statement. On May 4, 2015, Mr. Crawford filed a

letter asking it be considered a “formal request for hearing.” By the court of
Washington App. No. 15CA15                                                     5

appeals’ magistrate’s order of June 15, 2015, Mr. Crawford was ordered to

file a brief that complied with the appellate rules. On June 8, 2015, Mr.

Crawford filed additional paperwork captioned “New Evidence,” which the

appellate magistrate ordered stricken from the record in its June 15, 2015

entry. On June 24, 2015, the Crawfords filed a motion for extension of time,

which this court granted, and indicated they would be retaining a lawyer to

prepare and file their brief.

      {¶9} On July 6, 2015, the Crawfords filed a brief, pro se, containing

three assignments of error and citing one Ohio court decision. On July 24,

2015, the Fosters filed their brief. On August 24, 2015, the Crawfords filed

an “Addendum to Brief of Appellant” which redrafted the initial three

assignments of error, added two more, and cited no case law to support the

Crawfords’ position. On September 29, 2015, Attorney John M. Halliday

filed a notice of appearance as counsel of record for the Crawfords. Also on

that date, the parties’ appellate counsel filed a joint waiver of oral argument.

Where relevant, additional facts will be related below.

                         ASSIGNMENTS OF ERROR

      “I. THE TRIAL COURT ERRED IN MISCONSTRUING THE
      LEGAL CONSEQUENCES OF APPELLEES’ TRESPASS
      ON APPELLANT’S PROPERTY.
Washington App. No. 15CA15                                                      6

      II. THE TRIAL COURT ERRED IN NOT ASSESSING
      DAMAGES FOR APPELLEES’ TRESPASS ON
      APPELLANT’S PROPERTY.

      III. THE TRIAL COURT ERRED IN NOT CONSIDERING
      THE MAGISTRATE’S CONCURRENCE OF LAW NO. 4
      INVOLVING THE QUESTIONABLE CREDIBILITY OF
      THE DEFENDANT APPELLEE.”

      {¶10} In the magistrate’s order of June 15, 2015, we directed the

Crawfords to the guide to self-representation in the court of appeals

available on our court website. Mr. Crawford indicated he agreed with the

court’s strong suggestion in the guide that he retain counsel. However, the

Crawfords’ brief filed July 6, 2015 was pro se. We note: “It is well

established that pro se litigants are held to the same rules, procedures, and

standards as litigants who are represented by counsel, and must accept the

results of their own mistakes and errors.” Cooke v. Bowen, 4th Dist. Scioto

No. 12CA3497, 2013-Ohio-4771, ¶ 40, quoting Selvage v. Emnett, 181 Ohio

App.3d 371, 2009-Ohio-940, 909 NE.2d 143 ¶ 13 (4th Dist.) (Internal

citations omitted.) “Leniency does not mean that we are required ‘to find

substance where none exists, to advance an argument for a pro se litigant or

to address issues not properly raised.’ ” Cooke, supra, quoting State v.
Washington App. No. 15CA15                                                                                7

Healee, 4th Dist. Washington No. 08CA6, 2009-Ohio-873, ¶ 6, quoting

State v. Nayar, 4th Dist. Lawrence No. 07CA6, 2007-Ohio-6092, ¶ 28.1

         {¶11} Here, we find ourselves constrained to review the facts as

gleaned from the limited record and presented in the parties’ appellate briefs.

We are also limited to consideration of the Crawfords’ brief filed July 6,

2015. We cannot construe the Crawfords’ “addendum” as a reply brief,

given it was filed outside of the 10-day requirement under App.R. 18.

                                  STANDARD OF REVIEW

         {¶12} Appellate courts conduct a de novo review of trial court

summary judgment decisions. Ogle v. Ohio Power Co., 4th Dist. Hocking

No. 14CA15, 2014-Ohio-1724, ¶ 6. See, Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate

court must independently review the record to determine if summary

judgment is appropriate and an appellate court need not defer to the trial

court's decision. See, Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704,

1
  We observe Mr. Crawford attached to the civil docket a letter and other documents which indicate he
could not obtain a transcript of the small claims hearing that he deems necessary for consideration to
include within these proceedings. Pursuant to App.R. 9(B), it is the duty of an appellant to include in the
appeal a complete transcript of the proceedings that the appellant considers necessary for inclusion.
Pursuant to App.R. 9(C), if a transcript is unavailable, the appellant may prepare a statement of the
evidence or proceedings from the best available means, including the appellant’s recollection. And, the
parties may prepare and sign an agreed statement as to the record on appeal pursuant to App.R. 9(D). We
do not see the Crawfords took additional measures available under the appellate rules to supplement the
record in any way. In light of our disposition of the instant appeal, the missing transcript may not have
been necessary. However, we point out these appellate rules in an effort to underscore what we suggest on
the website: that although individuals may self-represent in an appeal, we strongly advise retention of
counsel.
Washington App. No. 15CA15                                                       8

711, 622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio App.3d 409,

411-412, 599 N.E.2d 786 (1991). Thus, to determine whether a trial court

properly granted a summary judgment motion, an appellate court must

review the Civ.R. 56 summary judgment standards, as well as the applicable

law.

       {¶13} Civ.R. 56(C) provides, in relevant part, as follows:

       “ * * * Summary judgment shall be rendered forthwith if the
       pleadings, deposition, answers to interrogatories, written
       admissions, affidavits, transcripts of evidence in the pending
       case, and written stipulations of fact, if any, timely filed in the
       action, show that there is no genuine issue as to any material
       fact and that the moving party is entitled to judgment as a
       matter of law. No evidence or stipulation may be considered
       except as stated in this rule. A summary judgment shall not be
       rendered unless it appears from the evidence or stipulation, and
       only from the evidence or stipulation, that reasonable minds can
       come to but one conclusion and that conclusion is adverse to
       the party against whom the motion for summary judgment is
       made, that party being entitled to have the evidence or
       stipulation construed most strongly in the party's favor.” Ogle,
       supra, at ¶ 7.

       {¶14} Pursuant to Civ.R. 56, a trial court may not award summary

judgment unless the evidence demonstrates that: (1) no genuine issue as to

any material fact remains to be litigated; (2) the moving party is entitled to

judgment as a matter of law; and (3) reasonable minds can come to but one

conclusion, and after viewing such evidence most strongly in favor of the

nonmoving party, that conclusion is adverse to the party against whom the
Washington App. No. 15CA15                                                    9

motion for summary judgment is made. Ogle, supra, at ¶ 8. See, Vahila v.

Hall, 77 Ohio St.3d 421, 429-430, 674 N.E.2d 1164 (1997).

                            LEGAL ANALYSIS

      {¶15} Although the Crawfords have appealed the final entry

dismissing their complaint, the final entry followed the common pleas

court’s March 11, 2015 ruling on the Fosters’ motion for summary

judgment. Essentially, the Crawfords’ three assignments of error all relate to

the merits of the municipal court decision regarding the Crawfords’ claims

of trespass and damage. However, we do not reach consideration of the

merits of the assignments of error as we agree with the common pleas

court’s March 11, 2015 ruling. Upon our de novo review of the record, we

find the doctrine of res judicata does apply to bar Appellants’ underlying

claims in the common pleas court and the current appeal.

       {¶16} According to 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.” Ross County Bd. of Commrs. v. Roop, 4th

Dist. Ross No. 13CA3369, 2013-Ohio-5926, ¶ 14, quoting Grava v.

Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995). This Court

noted in Cruse v. Finley, 4th Dist. Lawrence No. 12CA2, 2012-Ohio-5465,
Washington App. No. 15CA15                                                     10

¶ 12, that:

       “ ‘The party asserting res judicata must show the following four
       elements: (1) there was a prior valid judgment on the merits; (2)
       the second action involved the same parties as the first action;
       (3) the present action raises claims that were or could have been
       litigated in the prior action; and (4) both actions arise out of the
       same transaction or occurrence. PNC Bank v. Richards, 10th
       Dist. Franklin No. 11 AP-275, 2012-Ohio-1610, ¶ 10, quoting
       Reasoner v. Columbus, 10th Dist. Franklin No. 04AP-800,
       2005-Ohio-468, ¶ 5.”

       {¶17} The doctrine of res judicata involves both claim preclusion

(also known as estoppel by judgment) and issue preclusion (traditionally

known as collateral estoppel). Roop, supra, at ¶ 14; Grava v. Parkman Twp.

at 380. Both theories of res judicata are used to prevent relitigation of issues

already decided by a court on matters that should have been brought as part

of a previous action. Lasko v. Gen. Motors Corp., 11th Dist. Trumbull No.

2002-T-0143, 2003-Ohio-4103; Dickess v. Stephens, 4th Dist. Lawrence No.

12CA8, 2013-Ohio-1317, ¶ 23. The applicability of res judicata is a

question of law that is subject to de novo review. Altof v. State, 4th Dist.

Gallia No. 04CA16, 2006-Ohio-502, ¶ 13; Dickess v. Stephens, ¶ 22.

       {¶18} The magistrate’s decision in the Marietta Municipal Court set

forth the procedural history of the case which demonstrated Mr. Crawford

filed a complaint against Mr. Foster on January 13, 2013 for destruction of

property and trespassing. When the complaint was successfully served,
Washington App. No. 15CA15                                                    11

Foster filed a counterclaim alleging intimidation and harassment, trespass,

and “foul-calling language.” The magistrate dismissed the counterclaim

except for the trespass portion. The matter came on for a contested hearing

on March 11, 2013. The magistrate made six (6) findings of fact, which we

have summarized, as follows:

      1) Plaintiff and Defendant own contiguous property in
      Washington County, Ohio. Plaintiff’s chain link fence
      encroached on Defendant’s property. (See Plaintiff’s survey.)

      2) Over the last few years increased tension developed between
      the neighbors regarding the encroachment. On September 7,
      2012 as Plaintiff was returning home from the hospital after
      recovering from a heart attack, Defendant approached Plaintiff
      in his driveway and advised he was going to remove the
      encroaching fence. An argument ensued. Defendant began
      removing the fence. Plaintiff called the Sheriff.

      3) The Deputy arrived. The parties agreed the fence was
      encroaching and Plaintiff’s brother-in-law worked with
      Defendant to tear down the fence. Defendant removed the
      fence posts and concrete footings with his tractor. Plaintiff
      claimed damages for ruts caused by the tractor. Defendant
      testified the tractor was not on Plaintiff’s property.

      4) Defendant first testified he didn’t take the fence down. Then
      he admitted on cross-examination he participated.

      5) Plaintiff sought to recover the cost of the fence and repair to
      his yard.

      6) Plaintiff testified he injured himself in a fall on October 29,
      2012 when he tripped over a concrete footing which had been
      removed. He claimed injury and sought reimbursement for
      Tylenol purchase for headaches.
Washington App. No. 15CA15                                                 12

The magistrate concluded that:

      1) Appellee was entitled by law to remove the encroachment on
      his property;

      2) Appellant was not entitled to recover for damage caused by
      the fence posts and concrete footings;

      3) Appellee was not legally responsible for Appellant’s fall
      over his own fence posts on his own property;

      4) Appellee failed to prove Appellant trespassed on his land
      other than the trespass of the fence; and, Appellee failed to
      prove damages caused by Appellant.

      {¶19} The court ordered judgment for Foster on the original complaint

and judgment for Crawford on the trespass counterclaim. Crawford filed a

timely objection and Foster filed a response to the objection. The municipal

court judge filed an entry and orders upon the report of the magistrate. For

the reasons which follow, our de novo review supports the trial court’s

decision.

      1) Crawford I was a valid prior judgment.

      {¶20} Mr. Crawford had his day in small claims court. Per Civ.R.

53(D)(3)(b)(i), he filed an objection and Foster filed a response to the

objection. Pursuant to Civ.R. 53(D)(4), the municipal court judge reviewed

the matter and adopted the magistrate’s decision. We have reviewed the

municipal court decision. While we may or may not have made the same

decision, we defer to the judgment of the magistrate who was in the best
Washington App. No. 15CA15                                                                              13

position to observe the witnesses and weigh credibility. Nolen v. Rase, 4th

Dist. Scioto No. 13CA3536, 2013-Ohio-5680, ¶ 13; Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). We discern no

reason that the municipal court’s decision was not a valid final judgment.2

        2) The common pleas case involved the same parties as the municipal
        court case.

        {¶21} Attached to the Fosters’ brief are the municipal court pleadings

from Crawford I which demonstrates that the parties are essentially the

same. The Crawfords’ brief concedes this fact in its statement of the case

and statement of facts. The Fosters point out the only difference between

parties in the municipal court and common pleas court cases is the addition

of spouses, and that the spouses are in privity with the previous parties.

        {¶22} The concept of privity has been described as “amorphous.”

Price v. Carter Lumber Co., 9th Dist. Summit No. 26243, 2012-Ohio-6109,

¶ 10, quoting Robinson v. Springfield Local School Dist. Bd. of Edn., 9th

Dist. Summit No. 20606, 2002-Ohio-1382, ¶ 10. Kirkhart v. Keiper, 101

Ohio St.3d 377, 2004-Ohio-1496, 805 N.E.2d 1089, ¶ 8, quoting Brown v.

Dayton, 89 Ohio St.3d 245, 248, 730 N.E.2d 958 (2000). Privity may exist

2
  But see, Sheehan v. McRedmond, (Nov. 5, 1998), 1998 WL774983,*2 (8th Dist.) (Where contract was
void and prior action was not valid, there is no “valid final judgment”); State v. Arledge, 2nd Dist.
Montgomery No. 24755, 2012-Ohio- 414, ¶ 12, (Where defendant’s 2008 classification as a Tier III sex
offender was pursuant to a statute that the Supreme Court held violated the Ohio Constitution, there was no
“valid final judgment”).
Washington App. No. 15CA15                                                    14

when a party and another individual “have mutual interests, including the

same desired result.” Carter, supra, at ¶ 10. Preclusion “ ‘applies likewise

to those in privity with the litigants and to those who could have entered the

proceeding but did not avail themselves of the opportunity.’ ” Carter, supra,

at ¶ 12, quoting Howell v. Richardson, 45 Ohio St.3d 365, 367, 544 N.E.2d

878 (1989).

      {¶23} In this case, Mrs. Crawford could have joined the municipal

court action and, for some reason, did not. Mr. Crawford asserted the same

claims in both actions and it is reasonable to conclude that Mrs. Crawford

was aware of any claim for loss of consortium when the municipal court

action was commenced and that she should have availed herself of the

opportunity at that time. We discern no reason why we should not consider

the spouses to be in privity with the parties in this matter.

      3) The common pleas case involved the same claims as the municipal
      court case.

      {¶24} As set forth above, the doctrine of res judicata involves issue

preclusion. Issue preclusion “will preclude the relitigation of a fact or point

that was actually and directly at issue in a previous proceeding between the

same parties or their privies, and was passed upon and determined by a court

of competent jurisdiction.” Robinson, supra. “It is not enough that a similar

issue * * * was litigated and decided * * *. For collateral estoppel to bar the
Washington App. No. 15CA15                                                     15

relitigation of an issue, precisely the same issue must have previously been

litigated and decided.” (Emphasis in original.) Thompson v. Wing, 70 Ohio

St.3d 176, 185, 637 N.E.2d 917 (1994).

       “The main legal thread which runs throughout the
      determination of the applicability of * * * collateral estoppel[ ]
      is the necessity of a fair opportunity to fully litigate and to be
      ‘heard’ in the due process sense. Accordingly, an absolute due
      process prerequisite to the application of collateral estoppel is
      that the party asserting the preclusion must prove that the
      identical issue was actually litigated, directly determined, and
      essential to the judgment in the prior action. Collaterally
      estopping a party from relitigating an issue previously decided
      against it violates due process where it could not be foreseen
      that the issue would subsequently be utilized collaterally, and
      where the party had little knowledge or incentive to litigate
      fully and vigorously in the first action due to the procedural
      and/or factual circumstances presented therein.” (Internal
      citations omitted.) Goodson v. McDonough Power Equipment,
      Inc., 2 Ohio St.3d 193, 200-201, 443 N.E.2d 978 (1983). Price,
      supra, at ¶ 11.

Moreover, “collateral estoppel operates only where all of the parties to the

present proceeding were bound by the prior judgment.” Id. at paragraph one

of the syllabus. Price, supra, at ¶ 11.

      {¶25} The pleadings in Crawford I demonstrate Crawford pursued

claims for trespass and damage. The Marietta Municipal Court held a

hearing on March 11, 2013 wherein Crawford testified, in addition to

trespass and damage, that Mr. Foster caused him to fall and injure himself.

In the common pleas complaint, the Crawfords asserted claims for trespass,
Washington App. No. 15CA15                                                                              16

damage, personal injuries, and pain and suffering. Although Mr. Crawford’s

municipal court complaint did not allege personal injuries and pain and

suffering, the magistrate’s findings indicate he testified to these claims and

the magistrate decided that Foster was not legally responsible for Crawford’s

fall. In this matter, it can be said that precisely the same issues brought in

Crawford II were litigated and decided in Crawford I.3

         4) Both actions arise from the same occurrence.

         {¶26} The pleadings from Marietta Municipal Court and Washington

County Common Pleas court demonstrate that all Crawfords’ claims arose

from the events which occurred on September 7, 2012 at the parties’

adjoining property.

                                          CONCLUSION

         {¶27} For the foregoing reasons, we find the trial court did not err in

its dismissal of the Crawfords’ common pleas court complaint on the basis

of res judicata. As such we decline to consider the merits of Crawfords’

assignments of error. The judgment of the Washington County Common

Pleas Court is hereby affirmed.


3
  The only other difference in the common pleas complaint was the inclusion of Mrs. Crawford’s derivative
claim for loss of consortium. Because a derivative claim cannot afford greater relief than that relief
permitted under a primary claim, a derivative claim fails when the primary claim fails. Mender v.
Chauncey, 4th Dist. Athens No. 14CA34, 2015-Ohio-4105, ¶ 31, citing Bowen v. Kil-Kare, Inc., 63 Ohio
St.3d 84, 93, 585 N.E.2d 384 (1992). In that Mrs. Crawford’s loss of consortium claim was dependent on
the success of Mr. Crawford’s claim for personal injuries, we find the inclusion of the claim in Crawford II
to be irrelevant to our analysis here.
Washington App. No. 15CA15                        17



                             JUDGMENT AFFIRMED.
Washington App. No. 15CA15                                                     18

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellants.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J. & Hoover, J.: Concur in Judgment and Opinion.


                                       For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge


                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
