[Cite as State ex rel. DeWine v. Crock Constr. Co., 2014-Ohio-2944.]
                               STATE OF OHIO, NOBLE COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO, ex rel.                             )        CASE NO. 13 NO 405
MICHAEL DeWINE                                     )
OHIO ATTORNEY GENERAL                              )
                                                   )
        PLAINTIFF-APPELLANT                        )
                                                   )
VS.                                                )        OPINION
                                                   )
CROCK CONSTRUCTION CO., et al.                     )
                                                   )
        DEFENDANTS-APPELLEES                       )

CHARACTER OF PROCEEDINGS:                                   Civil Appeal from the Court of Common
                                                            Pleas of Noble County, Ohio
                                                            Case No. 2012-0177

JUDGMENT:                                                   Affirmed.

APPEARANCES:
For Plaintiff-Appellant:                                    Atty. Mike DeWine
                                                            Attorney General of Ohio
                                                            Atty. Nicholas J. Bryan
                                                            Atty. Robert C. Moormann
                                                            Assistant Attorneys General
                                                            Environmental Enforcement Section
                                                            30 East Broad Street, 25th Floor
                                                            Columbus, Ohio 43215

For Defendants-Appellees:                                   Atty. Michael A. Cyphert
                                                            Atty. Bozana L. Lundberg
                                                            Walter I. Haverfield LLP
                                                            1301 East 9th Street, Suite 3500
                                                            Cleveland, Ohio 44114

JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                            Dated: June 16, 2014
[Cite as State ex rel. DeWine v. Crock Constr. Co., 2014-Ohio-2944.]
WAITE, J.


        {¶1}     Appellant, the State of Ohio by way of its Attorney General, appeals the

decision of the Noble County Common Pleas Court dismissing the state’s

enforcement action against Appellees Crock Construction Co., Inc., Edward P. Crock,

and Dog Town Inc., for numerous environmental violations. The trial court correctly

determined that the instant action was barred by an earlier enforcement action taken

by the Noble County prosecutor on behalf of the Noble County Health District in its

capacity as a representative of the state under the same provisions for the same

violations.     Appellant’s arguments against dismissal are without merit and are

overruled and the judgment of the trial court is affirmed.

                                  Factual and Procedural History

        {¶2}     On August 15, 2012 Appellant filed a complaint for injunction and

damages against Appellees. In it, Appellant alleged that Edward P. Crock, in his

capacity as an officer and shareholder of both Crock Construction Co., Inc. and Dog

Town, Inc., participated in, controlled, and ordered numerous violations of both the

Ohio Administrative Code and Ohio Revised Code governing the disposal of

construction and demolition debris (“C&DD”). The state alleged that Crock should be

held personally liable for the violations. Crock Construction and Dog Town share a

single business address. The facility that was alleged to be operated in violation of

various code provisions is at a separate location. Appellant’s complaint included nine

counts, each alleging multiple violations: overfilling a construction and demolition

debris landfill; failure to repair leachate outbreaks; unlawful cliffing of debris; failure to

maintain adequate fire control; failure to manage surface water; failure to comply with
                                                                                   -2-

special license conditions; failure to comply with the Ohio Environmental Protection

Agency (“OEPA”) director’s orders; illegal disposal of construction and demolition

debris; and open dumping of solid waste. (Compl., Counts 1-9.) Appellant sought

preliminary and permanent injunctions to end all outstanding violations, costs of the

action, and “joint and several” payment of civil penalties arising from the violations

covered by counts one through nine.

      {¶3}   Within a week of filing, the matter was set for a status conference. On

September 5, 2012 the status conference appears to have taken place, although

service was not returned until November of that year. Appellees filed a motion to

dismiss the complaint on December 12, 2012, and attached a copy of a consent

order entered on July 26, 2012, approximately three weeks before the instant

complaint was filed. The consent order was signed by the same judge, in the same

court, cited the same code sections and covered violations that occurred at the same

location and during the same time period addressed in the instant complaint. The

consent order did appear to be somewhat unorthodox, as it was the sole filing in the

matter, serving as both the document that initiated and finalized the case. The trial

court granted Appellee’s motion to dismiss the action on April 23, 2013, holding that

because of the consent order the suit was barred by res judicata against one

defendant and that the complaint failed to state a claim against the other defendants.

                                 Argument and Law

      {¶4}   In seeking reinstatement of its complaint, Appellant frames its argument

on appeal as a challenge to a void judgment, allegedly entered by a court without

jurisdiction. Appellant directly attacks the validity of the earlier consent order. In
                                                                                        -3-

support of its argument Appellant makes several contentions: (1) no civil action that

is commenced without the filing of a document entitled “complaint” can result in a

valid judgment; (2) the absence of a complaint prevented Appellant from participating

in the prior action; (3) Appellant’s instant action cannot be barred by a consent order

entered in a matter that was not commenced with a complaint; and that (4) even if the

consent order has some preclusive effect it does not apply to two of the three

defendants named in the state’s action. The standard of review for a trial court’s

decision dismissing an action as res judicata is de novo. Hammon v. Ohio Edison

Co., 7th Dist. No. 2002-Ohio-2287, ¶14. As Appellant raises its arguments without

actually presenting any succinct assignments of error, each of the arguments raised

by Appellant will be grouped and addressed according to the broad, general issues

raised.

(1) The Trial Court’s Jurisdiction and the Consent Order.

       (a) Subject Matter Jurisdiction

       {¶5}   The premise of Appellant’s entire appeal is that the trial court’s decision

to adopt the consent order filed by Appellee and the Noble County Health District

(“NCHD”) has no legal effect because the consent order was the first filing made with

the trial court in that case. Appellant contends that because civil actions begin with

the filing of a complaint, a complaint is necessary to “acquir[e] jurisdiction” in a court.

(Appellant’s Brf., p. 10.)   Appellant inartfully refers to all types of jurisdiction as

“subject matter” jurisdiction, and argues that the parties in the consent order tried to

impose jurisdiction in the court by their own agreement in the consent order. While

Appellant is correct in its assertion that parties cannot confer “subject matter”
                                                                                       -4-

jurisdiction by consent or agreement, the trial court’s jurisdiction over the subject

matter in this case arises by statute, and does not rely on consent of the parties.

       {¶6}   R.C. 3714.11 directs the “attorney general, the prosecuting attorney of

the county, or the city director of law where a violation has occurred, is occurring, or

may occur, upon the request of the respective board of health of the health district” to

“prosecute to termination or bring an action for injunction against any person who has

violated, is violating, or is threatening to violate” laws contained in this chapter in

common pleas court. R.C. 3714.11(A). The section states that the “court of common

pleas in which an action for injunction is filed has the jurisdiction to and shall grant

preliminary and permanent injunctive relief upon a showing that the person against

whom the action is brought has violated, is violating, or is threatening to violate” the

chapter. Id. The statute also provides that any action brought “under this division is

a civil action, governed by the Rules of Civil Procedure.” Id.

       {¶7}   It is apparent, here, that Appellant does not actually raise any defect in

the trial court’s subject matter jurisdiction.    In fact, Appellant recognizes such

jurisdiction because it filed the instant injunction and damages action against the

same party in the same court pursuant to the same statute. The various district court

cases cited by Appellant that discuss the inability of parties to create subject matter

jurisdiction by agreement are not relevant to the subject matter jurisdiction of the

court to consider and act on the earlier consent order.          Thus, subject matter

jurisdiction has no bearing on the dismissal of the complaint in the instant matter.

       (b) Form of the Pleading

              (i) Civil Rules
                                                                                      -5-

       {¶8}   Appellant’s next argument is really the crux of Appellant’s appeal.

Appellant challenges the form of the document filed jointly by Appellee and the

NCHD in the prior action, Noble County Common Pleas Case No. 212-0167.

Appellant contends that Civ.R. 3(A) and caselaw require the filing of a document

actually entitled as a “complaint” before a court can “acquir[e] jurisdiction.”

(Appellant’s Brf., p. 10.) Appellee disputes this point, noting that Civ.R. 3, entitled

“Commencement of Action; Venue,” by its own terms relates to “venue” and does not

discuss jurisdiction. Civ.R. 3(G). Appellant’s contention, then, does not accurately

reflect the civil rule or the caselaw cited in support of its argument.

       {¶9}   While Appellees are correct, a number of the civil rules not raised by

Appellant do provide useful insight into how the document filed by Appellee and the

NCHD should be construed. Civ.R. 7 explains that there are two pleadings generally

filed in every civil action: a complaint and an answer.        Civil Rules 8 through 15

address the idea that merely placing the word “complaint” on a document is not

sufficient to make the document into a pleading.         Pursuant to Civ.R. 8, it is the

contents of the document that establish whether a pleading “sets forth a claim for

relief.” Civ.R. 8(A). This rule requires that a claim for relief “contain (1) a short and

plain statement of the claim showing that the party is entitled to relief, and (2) a

demand for judgment for the relief to which the party claims to be entitled.” Civ.R.

8(A). Civ.R. 8 states that every pleading “shall be simple, concise, and direct. No

technical forms of pleading or motions are required.” Civ.R. 8(E)(1). All pleadings,

regardless of form, “shall be so construed as to do substantial justice.” Civ.R. 8(F).
                                                                                    -6-

       {¶10} Civ.R. 9 clarifies that although there is no form requirement with regard

to pleadings or motions, some matters must be specifically included in a pleading.

These include, but are not limited to: conditions precedent, which may be averred

generally to have been satisfied; official documents or acts, which may be averred

generally by stating that the document was issued or the act done “in compliance

with law”; the existence of a judgment or decision, which may be established in a

pleading by mentioning the decision “without setting forth matter showing jurisdiction

to render it”; and time and place, which are “material and shall be considered like all

other averments of material matter.” Civ.R. 9(C), (D), (E), and (F).

       {¶11} Civ.R. 10 provides basic parameters that should be satisfied by the

pleading document, which include: the size of the paper, a caption including the

names and addresses of the parties, and “separate statements” of “[a]ll averments of

claim or defense * * * in numbered paragraphs, the contents of each of which shall be

limited as far as practicable to a statement of a single set of circumstances.” Civ.R.

10(E), (A), and (B).

       {¶12} The document filed by Appellees and NCHD which Appellant now

challenges begins by identifying the defendant “Crock Construction” as the “owner

and operator” of a construction and demolition debris (“C&DD”) site located “at 19425

Township Road 297, Caldwell, Noble County, Ohio.” (12/11/12 Motion to Dismiss,

Settlement Agreement and Consent Order, Exh. A, ¶1.) The document is organized

in numbered paragraphs which contains averments of claims, each addressing a

single set of circumstances. NCHD states in ¶3 of the document: “This action was

filed by the Noble County Prosecutor’s Office, on behalf of the NCHD, pursuant to
                                                                                       -7-

O.R.C., Section 3714.11 for injunctive relief and civil penalties resulting from the

operation of the Facility by Crock Construction.” Id. In ¶2, the document specifies

that “[t]he Noble County Health Department (‘NCHD’) is a health district authorized by

Ohio Revised Code (‘O.R.C.’), Chapter 3709 to enforce various health-related

requirements within Noble County, Ohio. The NCHD has been placed upon the

approved list of health districts by the Director of Environmental Protection pursuant

to O.R.C., Section 3714.09(A) for the purposes of issuing and enforcing C&DD

licenses under O.R.C., Chapter 3714.” Id.

       {¶13} The document also discusses venue and jurisdiction in ¶5: “This Court

has jurisdiction over the subject matter of this action pursuant to O.R.C., Section

3714.11. This Court also has personal jurisdiction over the Parties. Venue is proper

in this Court since the Facility is located in Noble County, Ohio.” Id. Paragraphs 8

through 43 of the document catalogue an extensive history of environmental,

regulatory, and statutory violations at the Crock Construction landfill site, numerous

notices of violation sent by both the NCHD and the OEPA, and repeated inspections

of the property, concluding in May of 2012 with a final notice of violation sent by the

OEPA on June 1, 2012. Id. at ¶43.

       {¶14} After identifying the parties, the authority of the plaintiff to seek relief,

legal basis of the relief sought, and the authority of the court to grant relief, the

parties then detail, in paragraphs 48-50, the remedies sought in the form of consent

orders, civil penalties, and injunctive relief. It is discernable, then, that pursuant to

Civil Rules 8-15, this document includes all information necessary in order to be

construed as a complaint. And while an answer to a complaint is usually filed, it is
                                                                                        -8-

axiomatic that many cases proceed without the filing of an answer. Certainly, the

document also sets forth admissions of violations and agreed remedies. Hence,

applying Civ.R. 8(F), which requires that “[a]ll pleadings shall be so construed as to

do substantial justice,” it appears that the document was correctly construed under

the Civil Rules by the trial court as sufficient to both initiate and conclude an action to

enforce R.C. 3714.01 et seq.

              (ii) Caselaw

       {¶15} In addition to inaccurately arguing that Civ.R. 3 requires the filing of a

document specifically captioned “complaint” in order to establish jurisdiction,

Appellant contends that caselaw imposes the same requirement. However, none of

the cases relied on by Appellant support its argument on this issue, and some of

these actually appear to support the opposite contention.

       {¶16} Appellant cites State ex rel. Balson v. Harnishfeger, 55 Ohio St.2d 38,

377 N.E.2d 750 (1978), for the proposition that “[t]he Ohio Rules of Civil Procedure

clearly provide that all civil actions are commenced by filing a complaint with the

court.” (Appellant’s Brf., p. 10.) Harnishfeger was an appeal filed from a sua sponte

dismissal of a divorce complaint by the Court of Appeals for Allen County. It involved

two parties who filed competing 1977 divorce actions within two days of one another

in two different Ohio counties. The issue before the Supreme Court was which court

with seemingly concurrent jurisdiction should take precedence to hear the matter.

The Court framed its issue as follows: “as between courts of concurrent jurisdiction,

which court, to the exclusion of all others, has the right to adjudicate upon the whole

issue and to settle the rights of the parties ─ Is it the court in which the action was
                                                                                        -9-

first filed or the court in which both the filing of the action and the required service of

process is first completed?”      Id. at 39.    The Court answered the question by

reaffirming its prior holding that “[s]ervice of process” is “a condition precedent to

vesting of jurisdiction in determining which of two courts has the exclusive right to

adjudicate the whole case.” Id. at 39-40.

       {¶17} The central premise of this case is completely unrelated to the issue

raised by Appellant and does not support the proposition for which Appellant cites to

this case. Appellant has not challenged the trial court’s personal jurisdiction over the

parties. Again, Appellant explicitly recognized that jurisdiction when it filed its matter

against the same parties in the same court.

       {¶18} Appellant also cites to Wilson v. Ohio Department of Rehab. & Corr., 73

Ohio App.3d 496, 597 N.E.2d 1148 (8th Dist.1991). Wilson involves the subject

matter jurisdiction of the Ohio Court of Claims, which, like the authority of the trial

court in this matter, is statutory. In Wilson, the court dealt with a challenge to a trial

court’s jurisdiction to grant summary judgment when the motion for summary

judgment was filed instanter. The Wilson court found that the lower court’s statutory

subject matter jurisdiction was properly invoked by the filing of a complaint, that

service on the defendant was complete, and that the court had jurisdiction to

consider summary judgment. The court concluded that the appellant’s jurisdictional

argument was without merit and affirmed the decision of the court of claims. Again,

this case does not address Appellant’s current argument and instead confirms that

courts with subject matter jurisdiction may grant relief based on the substance, not

the form, of a filing. Id.
                                                                                   -10-

          {¶19} Appellant next refers to Was v. A.J.L.S., Inc., 21 Ohio App.3d 280, 487

N.E.2d 918 (1985). In Was, the issue concerns whether a trial court’s jurisdiction

over a matter can be altered by a party’s failure to appeal an arbitration award within

the time limit established by the local rule. Not only does Was not stand for the

proposition Appellant advocates (“the filing of a valid complaint is a necessary

prerequisite to a court’s acquiring jurisdiction” (Appellant’s Brf., p. 10.)), the Ninth

District’s analysis runs contrary to Appellant’s argument that a procedural rule

defining venue should be construed against its terms and applied substantively to

alter jurisdiction. Was suggests that courts should focus on preserving substantive

rights instead of interpreting procedural requirements in a manner where they would

infringe on the assertion of such rights.

          {¶20} Appellant also relies on MRK Technologies v. Accelerated Systems

Integration, 8th Dist. No. 84747, 2005-Ohio-30 and State ex rel. Browning, 5th Dist.

No. CT2011-CA-55; CT2011-CA-60; 2012-Ohio-2158 in an attempt to bolster its

argument. MRK Technologies holds that the dismissal of an action by a plaintiff,

which divests a court of jurisdiction over the matter, cannot be reversed by the

agreement of the parties.       The Eighth District held in MRK that once a party

dismisses an action, a new action must be filed before a trial court can enforce any

settlement agreement that arose and was terminated by dismissal of the original

action.

          {¶21} Appellant mistakenly believes that this Eighth District case “would

unquestionably govern the facts in the case at bar.” (Appellant’s Brf., p.11.) We

remind Appellant that a decision by a sister district may be persuasive or illustrative,
                                                                                       -11-

but that it would not govern the decision of this district. Inter alia, State v. Wright, 7th

Dist. No. 11-MA-14, 2013-Ohio-4445. Even if MRK were controlling law, the issue it

addresses is the manner in which parties seeking to enforce a settlement agreement

should proceed after voluntary dismissal of the action that resulted in the agreement.

MRK does not address the manner in which a court should construe a filing that

states a cause of action, invokes the jurisdiction of the court and simultaneously

requests the court to adopt an agreed resolution of the causes of action raised within

that filing. MRK is not relevant or persuasive in the context of the facts presented in

the matter at bar.

       {¶22} Likewise, in State ex rel. Browning, Appellant fails to present applicable

caselaw. In fact, Browning appears to support the exact opposite position advocated

by Appellant. In Browning, the Fifth District rejected an argument similar to that

advanced by the state in this matter when a challenge to the jurisdiction of the

juvenile court to enforce a child support obligation was filed because the enforcement

action was initiated by a document captioned “motion” rather than “complaint.” The

appellant in Browning argued that under Civ.R. 3, because the “action was

commenced by filing of a ‘motion,’” the trial court “never acquired subject matter

jurisdiction and therefore all judgments allegedly rendered in this instant matter in the

trial court are null and void ab initio[sic].” Id. at ¶41. The Fifth District’s analysis of

this argument is instructive:

       Courts of this state have recognized that the name given to a pleading

       or motion is not controlling. Rather, the substance of the pleading or

       motion determines the operative effect thereof. Pleadings are to be
                                                                                    -12-

       construed to do substantial justice, and claims for relief should

       concisely set forth only those operative facts as are necessary to give

       “fair notice of the nature of the action.”


       In the case at bar, the plain words of the pleading that was filed set

       forth the claim for child support and health care insurance. * * *


       Accordingly, in the case at bar, captioning the matter as a “motion”

       rather that [sic] a “complaint” did not deprive the trial court of subject

       matter jurisdiction. (Citations omitted.)

Id., ¶43-45. Following this reasoning, then, a plain reading of the content of the

document captioned “Settlement Agreement and Consent Order” which was filed by

the NCHD was sufficient to set forth a justiciable claim, establish the trial court’s

jurisdiction over the issue, and assert the standing of the parties to reach an

agreement resolving the claim. Appellant’s argument that the filing of a separate

document specifically entitled “complaint” is crucial to invoke the trial court’s

jurisdiction is without merit.

(2) The Parties to and Effect of the Consent Order.

       (a) The State

       {¶23} Appellant next contends that the consent order should not operate as a

bar against Appellant because Appellant was not a party to or participant in the prior

action and that the present action involves different parties and issues. Appellant

argues that following O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-

Ohio-1102, 862 N.E.2d 803 and Quality Ready Mix v. Mamone, 35 Ohio St.3d 224,
                                                                                     -13-

520 N.E.2d 193 (1988) “the State must have been an active participant in the

Attempted Action and the State’s current Complaint must contain the same issues

and parties.” (Appellant’s Brf., p. 13.) Appellant contends that the application of res

judicata in this instance would violate the due process rights of the state and impede

its ability to “protect the citizens of Ohio through enforcement of Ohio’s environmental

laws.” (Appellant’s Brf., p.14.) Appellant’s arguments present two distinct issues: (1)

whether the state was a party in the original action; and (2) whether the state’s

complaint involves parties or claims that are not barred by res judicata.

       {¶24} In this action, the state (by way of the Attorney General’s office) seeks

to enforce certain provisions of R.C. 3714.01 et seq. on behalf of the OEPA. In the

consent action, the NCHD sought to enforce (by way of the Noble County

Prosecutor’s office) these same provisions on behalf of the OEPA. R.C. 3714.01 et

seq. governs the disposal of construction and demolition debris. It is clear that the

authority to license and oversee entities that dispose of regulated material is given to

both the OEPA and to those county health departments that the director of the OEPA

designates, pursuant to R.C. 3714.05:

       The board of health of each health district maintaining a program on the

       approved list [under R.C. 3714.09 and] shall provide for the issuance of

       permits to install for and the inspection of, licensing of, and enforcement

       of standards governing construction and demolition debris facilities

       under this chapter and rules adopted under it.           The director of

       environmental protection shall provide for the issuance of permits to

       install for construction and demolition debris facilities, the inspection
                                                                                    -14-

      and licensing of facilities, and the enforcement of standards in health

      districts that are not on the approved list * * * and may provide for the

      inspection of the facilities and enforcement of standards in health

      districts that are on the approved list * * * Further, the director may

      provide for the issuance of permits to install in a health district on the

      approved list if so requested by the applicable board of health * * *

The director of the OEPA is tasked with placing health districts on the approved list,

thus giving them enforcement power, but the effect of that placement is controlled by

statute, and does not necessarily preclude the director from taking action, even in a

county with an approved health district:

      (A) The director of environmental protection shall place each health

      district that is on the approved list under division (A) or (B) of section

      3734.08 * * * on the approved list for purposes of issuing permits to

      install and licenses under this chapter. Any survey or resurvey of any

      such health district conducted under section 3734.08 * * * shall also

      determine whether there is substantial compliance with this chapter. If

      the director removes any such health district from the approved list

      under division (B) of that section, the director shall also remove the

      health district from the approved list under this division and shall

      administer and enforce this chapter in the health district until the health

      district is placed on the approved list under division (B) of section

      3734.08 * * * or division (B)(1) of this section.
                                                                               -15-

***


(B)(1) Upon the request of the board of health of a health district that is

not on the approved list * * * for the purpose of permitting and licensing

construction and demolition debris facilities under this chapter if the

director determines that the board is both capable of and willing to

enforce all of the applicable requirements of this chapter and rules

adopted under it.


***


(3) If, after a survey or resurvey * * * the director determines that a

health district is not eligible to be placed on the approved list or to

continue on that list, the director shall certify that fact to the board of

health of the health district and shall administer and enforce this

chapter and rules adopted under it in the health district until such time

as the health district is placed on the approved list.


(4) Whenever the director is required to administer and enforce this

chapter in any health district under division (A) or (B)(3) of this section,

the director is hereby vested with all of the authority and all the duties

granted to or imposed upon a board of health under this chapter and

rules adopted under it within the health district. * * *


(C) Nothing in this chapter limits the authority of the director to initiate

and pursue any administrative remedy or to request the attorney
                                                                                     -16-

      general, the prosecuting attorney of the appropriate county, or the city

      director of law of the appropriate city to initiate and pursue any

      appropriate judicial remedy available under this chapter to enforce any

      provision of this chapter and any rules or terms or conditions of any

      permit or license or order adopted or issued under this chapter with

      respect to any construction and demolition debris facility regardless of

      whether the facility is located in a health district that is on the approved

      list under this section.

R.C. 3714.09.    Notably, the enforcement mechanisms provided by statute are

available to both the board of health in an approved district (and the NCHD was so

approved) and the Ohio director of environmental protection. R.C. 3714.11 allows:

      (A) The attorney general, the prosecuting attorney of the county, or the

      city director of law where a violation has occurred, is occurring, or may

      occur, upon the request of the respective board of health of the health

      district, the legislative authority of the political subdivision in which a

      violation has occurred, is occurring, or may occur, or the director of

      environmental protection, shall prosecute to termination or bring an

      action for injunction against any person who has violated, is violating, or

      is threatening to violate any section of this chapter, applicable rules

      adopted under it, or terms or conditions of a permit, license, or order

      issued under it. The court of common pleas in which an action for

      injunction is filed has the jurisdiction to and shall grant preliminary and

      permanent injunctive relief upon a showing that the person against
                                                                               -17-

whom the action is brought has violated, is violating, or is threatening to

violate any section of this chapter, applicable rules adopted under it, or

terms or conditions of a permit, license, or order issued under it. The

court shall give precedence to such an action over all other cases.


(B) If the board of health of the health district in which a violation has

occurred or is occurring or the director determines that any person has

violated or is violating this chapter, a rule adopted under it, or a term or

condition of a permit, license, or order issued under it, the board or the

director may request in writing that the attorney general, the

prosecuting attorney of the county, or the city director of law where the

violation has occurred or is occurring bring an action for civil penalties

in any court of competent jurisdiction.      Such an action shall have

precedence over all other cases.       The court may impose upon the

person a civil penalty of not more than ten thousand dollars for each

day of each violation of this chapter * * * Any action under this division

is a civil action, governed by the Rules of Civil Procedure.


(C) The director and board of health, within their respective territorial

jurisdictions, may, upon their own initiative, investigate or make

inquiries regarding the disposal of construction and demolition debris.


(D) This chapter does not abridge rights of action or remedies in equity,

under common law, or as provided by statute or prevent the state or

any municipal corporation or person in the exercise of their rights in
                                                                                 -18-

      equity, under common law, or as provided by statute to suppress

      nuisances or to abate or prevent pollution.

Thus, although the OEPA and designated health districts (like NCHD) share the

authority to license and enforce C&DD provisions, it is the OEPA, exclusively, that is

given rulemaking powers. R.C. 3714.02.

      {¶25} Appellant’s actions and the (admittedly somewhat odd) factual history

presented in this matter highlight the absence of a provision governing or defining

precedence if, as here, both the director and the board of health seek to address the

same violations. Appellant’s argument on appeal does not address the relationship

between the state and the health district or the relationship between Crock

Construction, Edward P. Crock and Dog Town, Inc. Instead, Appellant focuses on

notice and the state’s interest in enforcement.

      {¶26} The plain language of the statutory provisions, however, explicitly

provides both the OEPA and the NCHD with authority under the same provisions to

license, investigate, and enforce for the same stated purpose: ensuring “that the

facilities will not create a nuisance, fire hazard, or health hazard or cause or

contribute to air or water pollution.” R.C. 3714.02. Where, as here, two entities have

the same power to license and regulate, and the enabling legislation does not

distinguish or limit the authority of either to act, they have concurrent powers.

Although the statute confers concurrent licensing, investigative and enforcement

powers and does not limit the powers of enforcement of either entity, it does state

that the OEPA, not the authorized local authority, is responsible for the rulemaking

necessary to implement the legislation.      Where, as here, two parties share the
                                                                                     -19-

authority to act under a single statute and one has the ability to direct the other, they

appear to be in privity with one another.

       {¶27} Although the exact nature of the relationship between the state and an

approved local health district is not clearly delineated, two of the cases offered by

Appellee in support of the trial court’s decision help to clarify the issue: State ex rel.

Hofstetter v. Kronk, 20 Ohio St.2d 117, 254 N.E.2d 15 (1969) and State ex rel.

Wilson v. Preston, 173 Ohio St. 203, 181 N.E.2d 31 (1962).

       {¶28} In Wilson, the Ohio Supreme Court found:

       6. In actions brought by or against the various agencies of the state or

       the heads thereof in the course of the performance of their

       governmental duties or to compel the performance of such duties, the

       state is the real party in interest.


       7. The state being the real party in interest in actions brought by or

       against its various agencies or the heads thereof in the performance of

       their governmental duties or to compel the performance of such duties

       is, under the doctrine of estoppel by judgment, bound by the judgments

       in such actions.

Wilson, paragraphs six and seven of the syllabus. The Wilson Court rejected the

argument that a 99-year leasehold granted by the state, as represented by the

director of the department of public works in an ejectment action, could not trigger res

judicata or estoppel by judgment against the state, as represented by the director of

highways in a subsequent appropriation proceeding.
                                                                                        -20-

       {¶29} The Wilson Court concluded that because the state “necessarily * * *

can act only through its agents” the state is the real party in interest in both actions.”

Id. at 210-211. According to the Court, because the state was the real party in

interest in both cases, the state was bound by the prior leasehold judgment in the

subsequent ejectment action.       The Court applied the “principle of estoppel by

judgment” which requires that “the final adjudication of a material issue by a court of

competent jurisdiction [bind] the parties in any subsequent proceeding between or

among them, irrespective of a difference in forms or causes of action.” Id. at 212. It

noted: “ ‘[a]n estoppel is defined as a bar which precludes a person from denying the

truth of a fact which has in contemplation of law become settled by the acts and

proceedings of judicial officers or by the act of the party himself.’” Id. The Court

concluded:

       [W]hen the state uses its own courts to enforce its rights, it should be

       bound by the judgments in the same manner as its citizens. Any other

       holding would mean that a citizen could be harassed continually or that

       the state would never be bound by any judgment. It is clear that the

       state is not exempt from the operation of the principles of estoppel by

       judgment.

Id. at 213. Thus, the Court has held that judgments resulting from actions by or

against a state agency operate as res judicata against the state when other agencies

or individuals subsequently act on behalf of the state in the course of their duties.

       {¶30} In Hofstetter the Supreme Court applied the same analysis to actions

by different officials in their capacity as representatives of a county, and found:
                                                                                   -21-

      1. Under the principle of estoppel, the actual and necessary litigation of

      an issue binds the parties and their privies in any subsequent litigation

      between or among them, irrespective of the forms or causes of action. *

      **


      2. The court will look behind the nominal parties to the substance of the

      cause to determine the real parties in interest.


      3. In an action brought by or against an agency of a county, or the

      head thereof, in the courts of the performance of a governmental duty

      or to compel the performance of such a duty, the county is a real party

      in interest.

Hofstetter, paragraphs one, two, and three of the syllabus. In Hofstetter, a county

court judge sought payment of his salary during the years remaining in his term after

his seat was abolished by the legislature. The Supreme Court held that the judge’s

decision not to appeal an earlier mandamus action, which resulted in an order that he

turn over court records when the county court was abolished, precluded the later suit

over salary because the ruling in the earlier matter necessarily involved determining

whether the judge was entitled to retain his position. The subsequent suit would

involve relitigating the same question: whether he had an entitlement to his position

after the county court was dissolved by legislation. The Court explained that the

judge was collaterally estopped from relitigating the issue despite the fact that the

subsequent mandamus actions were filed against different state officials by the judge
                                                                                   -22-

(as compared with the original action which was filed against the judge by the county

prosecutor).

      {¶31} This matter, much like Hofstetter, involves two entities, one a state

agency and one a county department, that are both authorized representatives of the

state for enforcement of environmental regulations. See e.g. Trumbull Cty. Bd. of

Health v. Snyder, 74 Ohio St.3d 357, 658 N.E.2d 783 (1996) (finding that R.C.

Chapter 3714 specifically grants authority to the OEPA to regulate C&DD facilities,

and county boards of health have no independent authority to do so, but instead act

pursuant to the authority of the OEPA according to the provisions of R.C. Chapter

3714 and the administrative code). Applying the same analysis used by the Supreme

Court in evaluating the application of res judicata to state and county representatives,

the state was the real party in interest in both the current and the prior actions. As

the real party in interest in both suits, the state is precluded by res judicata with

regard to claims against Crock Construction because both suits involve the same

environmental violations, under the same statutory authority, committed by the same

parties, during the same period of time between 1999 and 2012. To the extent that

the second suit might allege additional or different violations during the same period,

and a review of both documents does not indicate that it does, the state is

nevertheless bound, because additional violations in the same period constitute

“claims which were or might have been litigated in a first lawsuit.” (Emphasis sic.)

Nat’l Amusements, Inc. v. City of Springfield, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178

(1990).

      (b) The Defendants
                                                                                      -23-

       {¶32} Appellant is correct that Edward P. Crock, individually, and Dog Town,

Inc., were not specifically identified as parties to the original action filed by NCHD, but

were specifically included in the complaint in this matter. (Complaint ¶6; 10 “Mr.

Crock by himself, and/or with others personally participated in, controlled and/or

ordered the violations alleged in this Complaint, or he had the authority to prevent

them and failed to do so. Accordingly, Mr. Crock is personally liable for the violations

alleged.”) Although Appellant names Dog Town, Inc., no allegations directed at the

involvement of Dog Town, Inc. are actually made in the complaint. Instead, Appellant

restates personal liability claims against Edward P. Crock (Complaint, ¶7-9. “Mr.

Crock, by virtue of his position as an officer and shareholder of Dog Town, alone or in

conjunction with others, caused, participated in, controlled, and/or ordered the

violations alleged in this Complaint. Accordingly, Mr. Crock is personally liable for

these violations.”) According to Appellant’s complaint, Crock Construction Co., Inc.

and Dog Town, Inc. share the same business address “17990 State Route 78,

Caldwell, Noble County” and are both “property owners” and “operators” under Ohio

Administrative Code Section 3745-400-01(EE).

       {¶33} The NCHD consent order does not address the involvement of Dog

Town, Inc. or the personal liability of Edward P. Crock. Instead, the order is limited to

the satisfaction of “any civil and administrative liability of Defendant Crock

Construction and its officers, employees, agents successors in interest and assigns

for all claims alleged in the NCHD’s Complaint or known by the NCHD at the time

that this Consent Order is entered by the Court.”         (12/11/12 Motion to Dismiss,

Settlement Agreement and Consent Order, Exh. A, ¶44.) Appellant argues that these
                                                                                    -24-

differences between the consent order and the complaint should allow Appellant to

pursue a second enforcement action for violations that occurred during the same

period on the same property.

       {¶34} However, the claims made by Appellant against Edward P. Crock and

Dog Town, Inc., involve both forms of res judicata: claim preclusion (estoppel by

judgment) and issue preclusion (collateral estoppel).

       {¶35} “The doctrine of res judicata applies to those who were parties in the

prior action, to those who were in privity with the litigants, and also to those who

could have joined in the action and did not.” Jarvis v. Wells Fargo Bank, 7th Dist. No.

09 CO 6, 2010-Ohio-3283, ¶22. Because determining what “constitutes privity in the

context of res judicata is somewhat amorphous” the Supreme Court has “applied a

broad definition to determine whether the relationship between the parties is close

enough to invoke the doctrine;” “ ‘a mutuality of interest, including an identity of

desired result,’ may create privity.” Kirkhart v. Keiper, 101 Ohio St.3d 377, 379,

2004-Ohio-1496, 805 N.E.2d 1086, ¶8.         In this instance, Appellant alleged that

Edward P. Crock so completely controlled the corporations identified in its complaint

that he should be subject to personal liability for all violations of R.C. 3714 that

occurred between 1999 and 2012. Assuming the allegations in Appellant’s complaint

to be true, any interest of Edward P. Crock was completely aligned with his

codefendants and he shared a mutuality of interest with those entities he is alleged to

have controlled and directed. “The doctrine of res judicata applies to those who were

parties in the prior action, to those who were in privity with the litigants, and also to

those who could have joined in the action and did not.” Jarvis, supra.
                                                                                   -25-

       {¶36} The existence of privity between the parties named in Appellant’s

lawsuit is further buttressed by Appellant’s decision to seek “joint and several

payment” of civil damages for all nine counts of the complaint. (Compl., p. 13 parts J

and K.) Due to the complete alignment of interests of Mr. Crock, Crock Construction,

and Dog Town, Inc. alleged by Appellant and the fact that the alleged liability arises

from the same occurrences contained in the consent order, it is clear that the parties

are in privity and claim preclusion applies to all three.

       {¶37} In addition to the identity of parties, the underlying issue is the same in

both suits: responsibility for environmental violations between 1999 and 2012 at

19425 Township Road 297, Caldwell, Noble County, Ohio. NCHD’s decision to settle

and agree to judgment against Crock Construction for violations on the subject

property during the period identified in both suits operates as a bar to Appellant’s

suit. Appellant is barred by both claim and issue preclusion from filing a duplicative

enforcement action against Appellees for violations occurring on the same property

during the same period covered by the consent order.

       {¶38} Appellant contends that the application of res judicata to bar its claims

against additional parties would violate the state’s due process rights. “Since the

doctrine of res judicata serves important public and private interests, exceptions to

the doctrine’s application should be narrowly construed.” National Amusements, Inc.

v. City of Springdale, 53 Ohio St.3d 60, 558 N.E.2d 1178 (1990), syllabus. The

“doctrine of res judicata requires a plaintiff to present every ground for relief in the

first action, or be forever barred from asserting it.” Id. at 62. “[A] judgment entered

by consent is ‘as effective as if the merits had been litigated’ and is ‘just as
                                                                                      -26-

enforceable as any other validly entered judgment.’” Ohio Pyro, Inc. v. Ohio Dept. of

Commerce, 115 Ohio St.3d 375, 380, 2007-Ohio-5024, 875 N.E.2d 550, ¶24 quoting

Gilbraith v. Hixson, 32 Ohio St.3d 127, 129, 512 N.E.2d 956 (1987). In this matter,

the state was statutorily the real party in interest in both suits, although it was

represented by different entities.    Hence, there can be no due process concern

raised by the application of res judicata in this matter.

                                       Conclusion

       {¶39} So long as a document conforms to the requirements of a complaint, it

need not be entitled “complaint” in order to validly invoke the jurisdiction of a court.

Here, the content of the document entitled “consent order” stated a cause of action

and invoked the jurisdiction of the trial court. The state is the real party in interest in

both suits and is estopped from asserting in the second suit claims arising out of the

same occurrences that formed the basis of the original enforcement action. While it

is somewhat unorthodox to have the complaint and settlement entry in one single

document, there is no legal reason why these cannot be so combined. Appellant’s

arguments are without merit. The judgment of the trial court is affirmed in full.


Vukovich, J., concurs.

DeGenaro, P.J., concurs.
