         [Cite as Brunner v. RJ Lipps, Inc., 2016-Ohio-3231.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




ANTHONY A. BRUNNER,                               :             APPEAL NO. C-150601
                                                                TRIAL NO. A-1402579
        Plaintiff-Appellant,                      :
                                                                   O P I N I O N.
  vs.                                             :

RJ LIPPS, INC., d.b.a. ROSELAWN :
LAROSA’S,
                                :
  and
                                :
CAMERON NAPIER,
                                :
     Defendants-Appellees,
                                :
  and
                                :
AETNA HEALTH INC.,
                                :
    Defendant.



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 1, 2016


Dennis C. Mahoney, for Plaintiff-Appellant,

Stephen A. Bailey, for Defendant-Appellee RJ Lipps, Inc., d.b.a. Roselawn LaRosa’s,

Law Office of John M. Williams, LLC, and John M. Williams, for Defendant-
Appellee Cameron Napier.



Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




SYLVIA S. HENDON, Judge.

       {¶1}    This case involves the attempted use of offensive collateral estoppel.

Plaintiff-appellant Anthony Brunner challenges the trial court’s denial of his motion

for partial summary judgment in his negligence action against defendants-appellees

Cameron Napier and R.J. Lipps, Inc., d.b.a. Roselawn LaRosa’s (“Lipps”).

       {¶2}   Because the trial court properly denied Brunner’s motion for partial

summary judgment, we affirm.

                                Facts and Procedure


       {¶3}   Brunner and Napier were involved in an automobile accident on

August 3, 2009. Following the accident, Brunner filed suit against Napier, alleging

that Napier had negligently operated his motor vehicle and caused injury to Brunner.

Brunner additionally named Lipps as a defendant in the lawsuit, alleging that Napier

had been employed by Lipps and was acting within the course and scope of his

employment when the automobile accident occurred.

       {¶4}   Brunner filed a motion for partial summary judgment, arguing that the

issue of liability should be determined in his favor based on the doctrine of collateral

estoppel. In support of his collateral-estoppel argument, Brunner sought to rely on a

municipal court judgment finding Napier guilty of making an improper left turn.

Napier had been issued a traffic citation for making an improper left turn after the

accident and had been subsequently found guilty following a trial.             Brunner

contended that because the identical issue of whether Napier had turned improperly

and had failed to yield the right of way was at issue in this case, Napier and Lipps

should be bound by the prior judgment and prevented from relitigating the issue of



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                       OHIO FIRST DISTRICT COURT OF APPEALS



liability. Brunner did not make Napier’s judgment of conviction or the transcripts

from Napier’s trial in the municipal court a part of the record in this case. But the

record does contain deposition testimony from Napier in which he admitted to being

found guilty of the traffic citation.

       {¶5}    The trial court denied Brunner’s motion for partial summary

judgment, and the case proceeded to a jury trial. The jury found that Napier had not

been negligent and it returned a verdict in favor of Napier and Lipps.

       {¶6}    Brunner has appealed. In one assignment of error, he argues that the

trial court erred by failing to grant him summary judgment on the basis of the

doctrine of collateral estoppel.

                                   Standard of Review


       {¶7}    We review a trial court’s grant of summary judgment de novo.

See Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996). Summary judgment is appropriately granted when there exist no genuine

issues of material fact, the party moving for summary judgment is entitled to

judgment as a matter of law, and the evidence, when viewed in favor of the

nonmoving party, permits only one reasonable conclusion that is adverse to that

party. See State ex rel. Howard v. Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189

(1994).

                                   Collateral Estoppel


       {¶8}    Collateral estoppel, also known as issue preclusion, provides that an

issue that has been fully and fairly litigated and determined in a prior action “may

not be drawn into question in a subsequent action between the same parties or their




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                        OHIO FIRST DISTRICT COURT OF APPEALS



privies, regardless of whether the claims in the two actions are identical or different.”

See Michell v. Internatl. Flavors & Fragrances, Inc., 179 Ohio App.3d 365, 2008-

Ohio-3697, 902 N.E.2d 37, ¶ 13 (1st Dist.). The doctrine of collateral estoppel is

applicable when (1) the party against whom estoppel is sought was either a party or

in privity with a party to the prior action; (2) a final judgment was rendered on the

merits in the previous action following a full and fair opportunity to litigate the issue;

(3) the issue on which estoppel is sought was either admitted or actually tried and

decided in the prior action, and was necessary to the final judgment; and (4) the

issue in the current case is identical to the issue involved in the prior suit. See

Monahan v. Eagle Picher Industries, Inc., 21 Ohio App.3d 179, 180-181, 486 N.E.2d

1165 (1st Dist.1984).

       {¶9}    Collateral estoppel may be used both offensively and defensively.

Defensive collateral estoppel occurs when a defendant seeks to stop a plaintiff from

asserting a claim that the plaintiff had previously litigated and lost. See Parklane

Hosier Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).

Offensive collateral estoppel “occurs when the plaintiff seeks to foreclose the

defendant from litigating an issue the defendant has previously litigated

unsuccessfully in an action with another party.” Id. Because Brunner is seeking to

prevent Napier and Lipps from relitigating the issue of liability in the automobile

accident based on the judgment in the prior municipal court action finding Napier

guilty of making an improper left turn, an action that Brunner was not a party to, this

case involves the use of offensive collateral estoppel.

       {¶10} Courts have generally been cautious in allowing the use of offensive

collateral estoppel. Id. at 329; Goodson v. McDonough Power Equip., Inc., 2 Ohio




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                      OHIO FIRST DISTRICT COURT OF APPEALS



St.3d 193, 197, 443 N.E.2d 978 (1983). Allowing a plaintiff to rely on a previous

judgment obtained against a defendant in an action to which the plaintiff was not a

party, and that the plaintiff would not have been bound by had the defendant

prevailed, does not promote judicial economy. Rather, it encourages plaintiffs to

adopt a “wait and see” mentality. See Parklane at 329-330. Offensive collateral

estoppel has also been viewed as unfair to a defendant.            In some situations, a

defendant may lack incentive to vigorously defend an action, but could be bound by a

judgment obtained in that action in a later case in which the defendant had more at

stake and would seek to present a more thorough defense. Id. at 330. Courts have

further recognized that it would be unfair to apply offensive collateral estoppel

“where the second action affords the defendant procedural opportunities unavailable

in the first action that could readily cause a different result.” Id. at 331.

       {¶11} We must determine whether offensive collateral estoppel can be used

to bind a court in a subsequent civil action by an earlier judgment obtained on a

traffic citation. In this case, we hold that it cannot.

       {¶12} A defendant does not have the same incentive to defend a traffic

citation for making an improper left turn as he or she would have to defend a civil

action for negligence. The damages at stake in the civil action are simply not present

in an action involving a traffic citation. Similarly, defenses that would be available to

a defendant in a civil action for negligence have no relevance to and are unavailable

in a traffic case. Further, whereas a negligence action is governed by the Ohio Rules

of Civil Procedure, the legislature has promulgated separate rules to govern actions

involving traffic citations. See Traf.R. 1-23.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} Under these circumstances, we hold that offensive collateral estoppel

cannot be used to prevent Napier and Lipps from litigating issues that were

previously decided against Napier in the prior traffic case.

       {¶14} Several additional considerations support the trial court’s denial of

Brunner’s motion for summary judgment. As we have explained, Brunner sought to

establish Napier’s liability for negligence based on the fact that he had been found

guilty of a traffic violation in the prior case. But pursuant to R.C. 2307.60, only a

final judgment of conviction “that adjudges an offender guilty of an offense of

violence punishable by death or imprisonment in excess of one year” is admissible as

evidence in a subsequent civil action. See R.C. 2307.60(A)(2). Napier was found

guilty of making an improper left turn. Making an improper left turn is not an

offense of violence. Consequently, R.C. 2307.60 prohibited admission of evidence

that Napier had been found guilty of the traffic citation. And because a trial court

may only rely on admissible evidence when ruling on a motion for summary

judgment, it could not have granted Brunner’s motion on the ground that Napier had

been found guilty of a traffic violation. See Guernsey Bank v. Milano Sports Ent.,

L.L.C., 177 Ohio App.3d 314, 2008-Ohio-2420, 894 N.E.2d 715, ¶ 59 (10th Dist.),

citing Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 631, 605

N.E.2d 936 (1992), fn. 4.

       {¶15} With respect to Lipps, the doctrine of collateral estoppel is additionally

inapplicable because Lipps was neither a party to the traffic action nor in privity with

a party to that action. See Monfort Supply Co. v. Cheviot, 1st Dist. Hamilton No. C-

940898, 1995 Ohio App. LEXIS 4172, *16-17 (Sept. 27, 1995). It would be manifestly




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                      OHIO FIRST DISTRICT COURT OF APPEALS



unfair to bind Lipps to a judgment issued in an action in which it had no

representation or ability to offer a defense.

       {¶16} We hold that the trial court properly denied Brunner’s motion for

partial summary judgment. Brunner’s assignment of error is overruled, and the

judgment of the trial court is affirmed.

                                                                      Judgment affirmed.



FISCHER, P.J., and STAUTBERG, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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