[Cite as Combs v. Oxford Mining Co., 2020-Ohio-876.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                           JUDGES:
BENJAMIN J. COMBS, ET AL                           :       Hon. William B. Hoffman, P.J.
                                                   :       Hon. W. Scott Gwin, J.
                     Plaintiffs-Appellants         :       Hon. Earle E. Wise, J.
                                                   :
-vs-                                               :
                                                   :       Case No. 2018 AP 05 0022
OXFORD MINING COMPANY                              :
                                                   :
                    Defendant-Appellee             :       OPINION




CHARACTER OF PROCEEDING:                               Civil appeal from the Tuscarawas County
                                                       Court of Common Pleas, Case No. 2017
                                                       CV 12 0912

JUDGMENT:                                              Affirmed

DATE OF JUDGMENT ENTRY:                                March 9, 2020


APPEARANCES:

For: Plaintiffs-Appellants                             For: Oxford Mining

ANDREW KARAS                                           MARK STEMM
159 S. Main Street                                     41 S. High Street
Suite 1030                                             Suite 3000
Akron, OH 44308                                        Columbus, OH 43215

For: CCU Coal and Construction

KAREN WINTERS
2000 Huntington Center
41 South High Street
Columbus, OH 43215
Tuscarawas County, Case No. 2018 AP 05 0022                                           2


Gwin, J.

       {¶1}   Appellants Benjamin Combs, individually and in his capacity as guardian of

Karena Combs, Eugene and Sandra McGuinness, and Smokey Mountain Limited

Partnership, appeal the April 24, 2018 judgment entry of the Tuscarawas County Court

of Common Pleas granting Oxford Mining Company LLC’s (“Oxford”) motion for judgment

on the pleadings and dismissing appellants’ complaint with prejudice.

       {¶2}   During the pendency of this appeal, Westmoreland Coal Company, the

parent company of appellee Oxford, filed bankruptcy, and this Court stayed appellants’

appeal. On August 14, 2019, appellants filed a motion to reinstate proceedings and for

substitution of party pursuant to Ohio Appellate Rule 29(B), seeking to substitute CCU

Coal and Construction LLC (“CCU Coal”) as appellee in this case for Oxford because the

bankruptcy court approved a sale of substantially all assets of Oxford to CCU Coal.

Contemporaneously with this Opinion, this Court issued a judgment entry granting

appellants’ motion to substitute CCU Coal as appellee in this case.

                                    Facts & Procedural History

       {¶3}   Oxford Mining Company LLC conducts a coal mining operation within one-

half mile of appellants’ respective properties. Between the end of December, 2014, and

the beginning of January, 2015, appellants experienced sudden and extreme declines in

the water levels of their respective wells.

       {¶4}   Mr. Combs filed a formal complaint with the Division of Mineral Resources

Management (“DMRM”) on January 7, 2015. After conducting an investigation into Mr.

Combs’ water loss, DMRM concluded Oxford’s mining operations were unlikely to be the

cause of Combs’ water loss. Mr. Combs filed a second complaint with DMRM on June 2,
Tuscarawas County, Case No. 2018 AP 05 0022                                             3


2016, after learning his neighbors also experienced water loss. DMRM did not conduct

a second investigation, but concluded, based upon the prior investigation, it was unlikely

Combs’ water loss resulted from Oxford’s mining operations. On June 1, 2016, Mr.

McGuinness filed a formal complaint with DMRM regarding his water loss. A DMRM

representative conducted an investigation into the source of the water loss on June 6,

2016, and determined that Mr. McGuinness’ water loss was not attributable to Oxford’s

mining operations.

      {¶5}    Both Combs and McGuinness requested informal reviews of the

determinations made by DMRM’s representative. The Chief of DMRM conducted an

informal hearing with respect to both claimed water losses on August 24, 2016. The Chief

affirmed the prior findings that the water losses were not attributable to Oxford’s mining

operations.   Appellants appealed the Chief’s decision to the Ohio Reclamation

Commission (“Commission”) on November 2, 2016. Following a five-day hearing in April

and May of 2017, the Commission entered written findings, its conclusion, and order on

August 17, 2017. The Commission found appellants failed to meet their burden of proving

to a quorum of Commissioners the alleged water losses were proximately caused by

Oxford’s mining operations. The Commission affirmed the Chief’s decision in its Order.

      {¶6}    Appellants did not exercise their statutory right to appeal the Commission’s

findings to this Court pursuant to R.C. 1513.14. Rather, on December 6, 2017, appellants

Combs and McGuinness, as well as appellant Karena Combs, appellant Combs’ minor

daughter, appellant Sandra McGuinness, and appellant Smokey Mountain Limited

Partnership, a business owned by Eugene and Sandra McGuinness, filed a complaint

against Oxford Mining, asserting the following claims: Count I – Oxford’s unreasonable
Tuscarawas County, Case No. 2018 AP 05 0022                                               4


use of groundwater (Combs Plaintiffs), Count II – Oxford’s unreasonable use of

groundwater (McGuinness Plaintiffs), Count III – Combs Plaintiffs’ action pursuant to R.C.

1513.15(B) for injunctive relief against Oxford to replace/restore their diminished water

supply to its pre-mining levels and provide reimbursement for temporary water supply

costs; Count IV – McGuinness Plaintiffs’ action pursuant to R.C. 1513.15(B) for injunctive

relief against Oxford to replace/restore their diminished water supply to its pre-mining

levels and provide reimbursement for temporary water supply costs; Count V - Combs

Plaintiffs’ action pursuant to R.C. 1513 (H) and (I) for damages against Oxford resulting

from the diminution and/or interruption of their water supply; and Count VI – McGuinness

Plaintiffs’ action pursuant to R.C. 1513 (H) and (I) for damages against Oxford resulting

from the diminution and/or interruption of their water supply.

       {¶7}   Appellants state in their complaint that, “this is a civil action containing

statutory and common law claims which requests damages and injunctive relief, and costs

from Oxford Mining Company, LLC, for causing interruptions and permanent diminution

to the water wells located on the respective property of plaintiffs.” Appellants assert

jurisdiction pursuant to R.C. 1513.15, which allows the institution of civil actions against

coal mining operators for violations of Chapter 1513.

       {¶8}   Appellants aver they suffered the following damages due to the loss of their

water supply as a result of Oxford’s conduct: damage to their property by the loss of their

reliable water supply; mental and emotional stress due to the loss of their reliable water

supply; the loss of time they have had to divert from other matters to attempt to mitigate

or remediate the damage from the loss of the water supply; and expenses relating to
Tuscarawas County, Case No. 2018 AP 05 0022                                               5


remediation of the damage Oxford caused, including obtaining bottled water and installing

a rainwater collection system, or purchasing and hauling water.

       {¶9}   Attached to the complaint is a document entitled, “Findings, Conclusions &

Order of the Commission,” dated August 17, 2017. The Commission stated it held a

hearing on appellants’ appeal from the Chief’s decision on April 5, April 6, April 19, April

20, and May 10, 2017 and, at this hearing, the parties presented documentary evidence

and witnesses. The Commission heard from multiple witnesses and examined numerous

exhibits. The Commission issued detailed findings of fact.

       {¶10} As to the Combs water supply and complaint, the Commission stated: after

Combs lodged a formal complaint in 2015, division geologist Laura Bibey (“Bibey”)

conducted an investigation of the Combs water loss complaint, consisting of a site visit,

an inspection of the well’s structural condition with a down-hole camera, and the collection

of a static water level measurement (“SWL”); the well appeared to be in good working

condition; the SWL indicated the available water in the well had dropped 43 feet from

2004; the distance between the Combs well and Oxford’s mining area was 1770 feet;

Bibey issued the results of her investigation and concluded Oxford’s mining did not affect

the Combs water supply because of the lack of damage to the well, because the distance

and direction from mining is not conducive to water disruption, because heavy iron and

metal deposits were found in the casing of the well, and because of the mild drought

conditions in the region; Bibey did not visit the Combs property in response to Combs’

second complaint in 2016, but issued her determination that the likelihood of mining

activities affecting the Combs water quantity is very low; Combs’ well has not returned to

its original SWL and usage capacity; at the time of the hearing, Combs and his daughter
Tuscarawas County, Case No. 2018 AP 05 0022                                                6


were required to restrict their water usage and supplemented the well’s water supply with

a rainwater collection system; and, in February of 2017, the SWL in the Combs well

measured at 26 feet below its original SWL in 2004.

       {¶11} As to the McGuinness water supply and complaint, the Commission found:

in 2016, seventeen months after initially experiencing water loss, McGuinness lodged a

formal complaint with the Division; Bibey conducted an investigation, including a site visit,

inspection of the well’s condition with a down-hole camera, and the collection of a SWL

measurement; the camera did not show any visible structural problems with the well; the

SWL showed a drop of approximately 21 feet of available water as compared to 1992;

Bibey estimated the distance between the McGuinness well and the closest highwall on

the mining permit to be 1100 feet; Bibey issued her decision and found that the probability

of the McGuinness water being impacted by Oxford’s mining was very low based upon

the minimal amount of mining activity occurring in their wells’ aquifers and the fact that

the water recharging the McGuinness well was above the highest mining elevation; Bibey

stated it is reasonable to conclude their water was not impacted by mining activities; the

McGuinness well has not returned to its pre-mining SWL and usage capacity;

McGuinness is not using the well and hauls most water for domestic use and obtains

some water from rain barrels; and, in February of 2017, the SWL in the McGuinness well

measured at 22 feet below its original SWL in 1992.

       {¶12} With regards to the informal review by the Division Chief, the Commission

stated: the Chief conducted an informal review of Bibey’s determinations relative to the

Combs and McGuinness water loss complaints; the Chief conducted an informal hearing

on August 24, 2016, which included an expert retained by Combs and McGuinness; the
Tuscarawas County, Case No. 2018 AP 05 0022                                              7


Chief did not conduct any independent field investigation of the wells, but asked Bibey to

reconsider her determinations in light of the information presented at the informal hearing

and asked the Division’s lead hydrologist to peer review Bibey’s reports; and the Chief

affirmed the determinations of Bibey with regards to the Combs and McGuinness water

supply.

      {¶13} The Commission detailed other water loss complaints in the area,

specifically two wells in the vicinity of those of McGuinness and Combs whose wells were

voluntarily replaced by Oxford (the Williams and Hart wells).          These wells were

approximately 470 feet and 600 feet from the mining operations. The Commission then

made extensive findings regarding hydrologic information, including a diagram of relevant

coal seams, aquitards, aquifers, and water wells, and their approximate elevations. As

to the findings of fact with regards to mining operations near Stream L, the Commission

noted the Williams and Hart wells are located closer in distance to Oxford’s mining in the

Stream L valley than are the Combs and McGuinness wells. The Commission included

a SWL measurement chart that showed the available water in the Combs, Williams, and

McGuinness wells prior the mining, after the mining, and two years after the mining

occurred.

      {¶14} The next section of the Commission’s orders is a “discussion” section in

which the Commission reviewed the testimony and the evidence presented.               The

Commission noted the fact that the Combs and McGuinness wells were located 1090 and

1800 feet from the closest open highwall appears to be the most critical factor in the

Division’s determination that the diminution of water in these wells was not caused by

Oxford’s mining operations. Further, the Commission stated the evidence presented is
Tuscarawas County, Case No. 2018 AP 05 0022                                             8


not sufficient to establish pumping as the cause of water loss in the McGuinness and

Combs wells and also found the “subsurface divide” suggested by Bibey does not exist.

The Commission stated as follows:

             The critical issue in this matter is whether the Appellants have

      successfully established a connection between mining activities in the

      Stream L valley and water losses at the McGuinness and Combs wells.

      Through their expert, the Appellants put forth a theory that mining was the

      proximate cause of water loss in these wells, suggesting that the highwall

      cuts in the Stream L valley caused a dewatering of the Zone C Aquifer, and

      that hydrologic connectivity in this area was sufficient to draw down water

      levels at the Combs and McGuinness wells. The Commission cannot reach

      a quorum on this issue.

      {¶15} The Commission then issued its conclusions of law and first noted that the

ultimate burden of persuasion in this matter is placed on appellants to prove by a

preponderance of the evidence that the Chief acted arbitrarily, capriciously, or in a

manner inconsistent with law in issuing his decision, which affirmed Bibey’s determination

that Oxford’s mining on the permit D-2226 area did not affect the Combs and/or

McGuinness water wells. The Commission cited R.C. 1513.162 for the requirement that

the operator of a coal mining operation replace the water supply of an owner where the

supply has been affected by diminution proximately resulting from the coal mining

operation. Next, the Commission cited OAC 1513-3-02(B) with regards to a quorum. The

Commission stated a quorum has concurred upon the “findings of fact” as set forth in the

order and a quorum also concurred as to the discussion of the facts under the “discussion”
Tuscarawas County, Case No. 2018 AP 05 0022                                              9


section in this case.    However, “in its evaluation of whether the appellants have

successfully met their burden of proof in this matter, establishing that the alleged water

losses were proximately caused by coal mining, a majority of the participating members

have concluded that a concurrence of four members cannot be reached.”                 The

Commission continued, “when a concurrence of a quorum cannot be reached upon the

question of whether the Chief’s action under appeal was, or was not, arbitrary, capricious,

or otherwise inconsistent with law, O.R.C. 1513.13(B) requires the affirmation of the

Chief’s decision under appeal.”

      {¶16} The Commission’s order states, “due to the lack of a concurrence of a

quorum of Commission members on the question of whether the Division Chief’s

September 26, 2016 decision relative to the Comb and McGuinness water loss

complaints was arbitrary, capricious, or otherwise inconsistent with law, the Chief’s

decision is hereby AFFIRMED.” At the end of the order, the Commission lists “instructions

for appeal,” and states, “this decision may be appealed to the Court of Appeals, within

thirty days of its issuance, in accordance with Ohio Revised Code 1513.14 and Ohio

Administrative Code 1513-3-22.”

      {¶17} Oxford filed an answer to appellants’ complaint in this case on January 9,

2018. Oxford filed a motion for judgment on the pleadings on March 5, 2018, arguing the

doctrine of res judicata barred appellants’ complaint. Appellants filed a response in

opposition to the motion for judgment on the pleadings on March 16, 2018. Oxford filed

a reply brief on March 21, 2018.
Tuscarawas County, Case No. 2018 AP 05 0022                                               10


       {¶18} The trial court issued a judgment entry on April 24, 2018 granting Oxford’s

motion for judgment on the pleadings and dismissing appellants’ complaint against all

defendants.

       {¶19} The trial court found as follows: R.C. 1513.13 provides the procedure for

anyone adversely affected by a decision of the chief of the division of mineral resources

management to appeal to the reclamation commission; R.C. 1513.14 provides for a

procedure to appeal from a decision of the reclamation commission to the court of appeals

for the county in which the activity addressed by the decision of the commission occurred;

the complaint alleges statutory and common law claims for causing interruptions and

permanent diminution to the water wells located on the property of the plaintiffs; the

plaintiffs filed formal complaints with DMRM; a representative of DMRM concluded that

defendant’s mining operations were unlikely to be the cause of the plaintiffs’ water losses;

after a request by the plaintiffs, the Chief of DMRM conducted an informal hearing with

regard to plaintiffs’ water losses on August 24, 2016; the Chief affirmed the finding that

the water losses were not attributable to Oxford’s mining activities; the plaintiffs appealed

the Chief’s decision to the Commission; the Commission was unable to reach a quorum

on the issue of whether Oxford’s mining in the Stream L valley caused plaintiffs’ water

losses; and the Commission ordered the Chief’s decision affirmed due to the lack of

concurrence of a quorum on the question of whether the decision relative to the water

loss complaints was arbitrary, capricious, or otherwise inconsistent with law.

       {¶20} The trial court further determined: the issue of whether defendant caused

plaintiffs’ water losses was actually and directly litigated before the Commission; the

plaintiffs had ample opportunity to litigate the issue of whether defendant caused their
Tuscarawas County, Case No. 2018 AP 05 0022                                               11


water losses before the Commission, as the Commission held a five-day hearing, the

Commission entered written findings regarding defendant’s mining activities, and

plaintiffs’ had the opportunity to present witnesses and exhibits on their behalf; the

Commission’s order was a final judgment on the merits; the Commission determined the

issue of whether defendant caused the plaintiffs’ water losses as a matter of law; Karena

Combs, Sandra McGuinness and Smokey Mountain Limited Partnership are in privity with

Ben Combs and Eugene McGuiness relative to their claims before the Commission; issue

preclusion applies in this case and precludes the trial court from relitigating the issue of

whether defendant’s mining activities caused plaintiffs’ water losses; plaintiffs were

entitled to appeal the Commission’s decision under R.C. 1513.14, but they did not take

advantage of this opportunity, which would have been the proper way to challenge the

Commission’s affirmance of the Chief’s conclusion that plaintiffs’ water losses were not

attributable to defendant’s mining activities; all of the claims in plaintiffs’ complaint are

dependent upon the fact-finder concluding that defendant caused plaintiffs’ water losses;

absent a finding that defendant was the cause of plaintiffs’ water losses, the plaintiffs

cannot prevail on any of their claims; and defendant is entitled to judgment in its favor on

all of the claims alleged in plaintiffs’ complaint.

       {¶21} Appellants appeal the April 24, 2018 judgment entry of the Tuscarawas

County Court of Common Pleas and assign the following as error:

       {¶22} “I. THE TRIAL COURT ERRED BY APPLYING THE DOCTRINE OF RES

JUDICATA TO BAR LITIGATION OF THE ISSUE OF PROXIMATE CAUSE OF WATER

LOSS, WHEN THE PRIOR ACTION DID NOT RESULT IN A VALID, FINAL JUDGMENT
Tuscarawas County, Case No. 2018 AP 05 0022                                             12


ON THE MERITS AND THIS ISSUE WAS NOT PREVIOUSLY PASSED UPON AND

DETERMINED.”

                             Motion for Judgment on the Pleadings

      {¶23} The trial court granted judgment on the pleadings for Oxford and against

appellants. Civil Rule 12(C) provides, “after the pleadings are closed but within such time

as not to delay the trial, any party may move for judgment on the pleadings.” The standard

of review of the grant of a motion for judgment on the pleadings is the same as the

standard of review for a Civil Rule 12(B)(6) motion, which requires the appellate court to

independently review the complaint to determine if the dismissal was appropriate. Ferreri

v. The Plain Dealer Publishing Co., 142 Ohio App.3d 629, 756 N.E.2d 712 (8th Dist.

Cuyahoga 2001). A motion for judgment on the pleadings pursuant to Civil Rule 12(C)

presents only questions of law. Peterson v. Teodosio, 34 Ohio St.2d 161, 297 N.E.2d

113 (1973). The determination of a motion under Civil Rule 12(C) is restricted solely to

the allegations in the pleadings and the nonmoving party is entitled to have all material

allegations in the complaint, with all reasonable inferences to be drawn therefrom,

construed in its favor. Id. Evidence in any form cannot be considered. Conant v. Johnson,

1 Ohio App.2d 133, 204 N.E.2d 100 (4th Dist.1964). In considering such a motion, one

must look only to the face of the complaint. State ex rel. Osborne v. City of North Canton,

5th Dist. Stark No. 2018CA00132, 2019-Ohio-1744.

                                      Res Judicata

      {¶24} Res judicata can be divided into two separate subparts: claim preclusion

and issue preclusion. Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995).

The Ohio Supreme Court has consistently held that the doctrine of res judicata is
Tuscarawas County, Case No. 2018 AP 05 0022                                              13


applicable to administrative hearings of a quasi-judicial nature where the parties have had

an ample opportunity to litigate the issues involved in the proceeding. State ex rel. Davis

v. Public Employees Retirement Bd., 120 Ohio St.3d 386, 2008-Ohio-6254, 899 N.E.2d

975; Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995); Superior’s

Brand Meats, Inc. v. Lindley, 62 Ohio St.2d 133, 403 N.E.2d 996 (1980). Administrative

proceedings are deemed quasi-judicial if notice, a hearing, and an opportunity to

introduce evidence are afforded. In re: Lima Memorial Hospital, 111 Ohio App.3d 225,

675 N.E.2d 1320 (10th Dist. 1996). In this case, there is no dispute that appellants

received notice, a hearing, and the opportunity to introduce evidence before the

Commission.

                                        Claim Preclusion

       {¶25} Claim preclusion holds that 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.,

73 Ohio St.3d 379, 653 N.E.2d 226 (1995).

       {¶26} Appellants contend the doctrine of claim preclusion does not apply to bar

their claims in this case because the Commission failed to render a valid, final judgment

on the merits.    Appellants cite the Commission’s general authorizing statute (R.C.

1513.05) and Ohio Adm. Code 1513-3-02(B)(1), which provide that “no action of the

commission shall be valid unless it has a concurrence of at least four members.”

       {¶27} R.C. 1513.13(B) provides that, “the commission shall affirm the * * * decision

of the chief unless the commission determines that it is arbitrary, capricious, or otherwise

inconsistent with law.” Ohio Adm. Code 1513-03-02(B), after stating no action of the
Tuscarawas County, Case No. 2018 AP 05 0022                                            14


commission shall be valid unless it has a concurrence of at least four members, further

provides in OAC 1513-03-02(B)(4) that,

                In the event that a concurrence of four members cannot be reached,

       a decision shall be issued reflecting that four members of the commission

       could not reach an agreement regarding whether the chief’s action under

       appeal was, or was not, arbitrary, capricious, or otherwise inconsistent with

       law. In such case, the commission’s decision shall include the necessary

       order, affirming the chief’s action under appeal pursuant to division (B) of

       section 1513.13 of the Revised Code.

       {¶28} Pursuant to a reading of the plain language of the Revised Code, in pari

materia with the Ohio Administrative Code, the failure of the Commission to reach a

quorum on whether appellants successfully met their burden of proof in establishing that

the water losses were proximately caused by Oxford’s mining is not a non-action or a

procedural default, but is a valid and final decision on the merits denying appellants’

appeal and affirming the Chief’s decision.

       {¶29} Appellants also argue the doctrine of claim preclusion is not applicable in

this case because the claims and causes of action in this case are not identical to those

before the Commission.        However, the Ohio Supreme Court “has not limited the

application of the doctrine of res judicata to bar only subsequent actions involving the

same legal theory of recovery as a previous action.” Grava v. Parkman Twp., 73 Ohio

St.3d 379, 653 N.E.2d 226 (1995). A valid final judgment on the merits between the

parties is “conclusive as to all claims which were or might have been litigated in a first

lawsuit.” Id.
Tuscarawas County, Case No. 2018 AP 05 0022                                               15


       {¶30} The fact that a number of different legal theories may cause liability on an

action arising out of a given episode does not create multiple transactions or claims. Id.

In the administrative proceeding, the issue was whether Oxford’s mining caused

appellants’ water loss. Each of the six counts asserted by appellants in this case center

on the issue of whether Oxford caused appellants’ water loss and are dependent upon

the fact-finder concluding that Oxford caused appellants’ water loss. Accordingly, the

claims at issue in this case arise out of the same transaction or occurrence as the claims

at issue in front of the Commission.

       {¶31} In the primary case cited by appellants in support of their argument, the

Ohio Supreme Court examined claim preclusion, but applied Michigan law. The Supreme

Court specifically stated “Ohio’s views on res judicata [did] not play a role” in their

decision. Holzemer v. Urbanski, 86 Ohio St.3d 129, 712 N.E.2d 713 (1999). Thus, the

rationale in Holzemer is not applicable to this case. Similarly, we find the instant case, in

which the Commission issued a valid decision on the merits that appellants chose not to

appeal pursuant to R.C. 1513.14, is not analogous to a case that ends in a mistrial or a

hung jury.

       {¶32} We find the Commission issued a valid, final judgment on the merits. The

claims in this case arise out of the same transaction or occurrence that was the subject

matter of the Commission’s decision. Thus, claim preclusion applies to bar appellants’

complaint.
Tuscarawas County, Case No. 2018 AP 05 0022                                              16


                                          Issue Preclusion

       {¶33} Issue preclusion, or collateral estoppel, precludes relitigation of any “issue

that has been actually and necessarily litigated and determined in a prior action.” Fort

Frye Teachers Assn. v. State Emp. Rels. Bd., 81 Ohio St.3d 392, 692 N.E.2d 140 (1998).

An issue “that was actually and directly at issue in a previous action, that was passed

upon and determined by a court of competent jurisdiction, may not be drawn into question

in a subsequent action between the same parties or their privities, whether the cause of

action in the two actions be identical or different.” Id.

       {¶34} Appellants argue issue preclusion does not apply in this case to bar their

claims because the Commission did not actually determine the cause of their water loss

and did not resolve the factual dispute of whether Oxford caused appellants’ wells to

diminish because the concurrence of four members of the Commission could not be

reached.

       {¶35} We disagree with appellants. The Commission stated a quorum concurred

upon the findings of fact and discussion as set forth in its order. The Commission issued

detailed findings of fact regarding appellants’ water loss, the mining activity in the area,

and hydrologic information. In the discussion portion of the order, a quorum of the

Commission concurred that the critical issue in the matter was whether the appellants

“have successfully established a connection between mining activities in the Stream L

valley and water losses at the McGuinness and Combs wells.” Though the Commission

could not reach a quorum on whether appellants successfully met their burden of proof in

establishing that the water losses were proximately caused by coal mining, the

Commission affirmed the Chief’s decision pursuant to R.C. 1513.13(B). In his decision,
Tuscarawas County, Case No. 2018 AP 05 0022                                               17


the Chief determined that appellants’ water was not impacted by Oxford’s mining

activities. Thus, the issue of whether Oxford caused appellants’ water loss was actually

and directly litigated and determined before the Commission.            Pursuant to R.C.

1513.13(B) and OAC 1513-03-02(B)(4), the failure of the Commission to reach a quorum

on whether appellants successfully met their burden of proof in establishing that the water

losses were proximately caused by Oxford’s mining is not a non-action or a procedural

default, but is a denial of a party’s appeal and an affirmance of the Chief’s decision.

       {¶36} We find the cases cited by appellants in support of their argument to be

distinguishable from the instant case, as those cases held issue preclusion did not apply

for differing reasons. These reasons include: the court in the prior action did not make

any specific findings of fact such that there was no basis to conclude the court actually

passed upon and determined any issue; the administrative proceedings were not quasi-

judicial because the plaintiff voluntarily dismissed the appeal prior to a hearing an

adjudication by the administrative board; and the issue was not raised at the

administrative level. In re Earnest, N.D. Ohio No. 11-36044 (Bankr. Ct. N.D. Ohio 2013);

In re: Lima Memorial Hospital, 111 Ohio App.3d 225, 675 N.E.2d 1320 (10th Dist. 1996);

Lupo v. Voinovich, 858 F.Supp. 699 (S.D. Ohio 1994).

       {¶37} In this case, unlike the cases cited by appellants, the Commission made

specific findings of fact such that there was a basis to conclude the Commission actually

addressed the critical issue of whether Oxford caused appellants’ water loss; the

administrative proceedings before the Commission were quasi-judicial; the administrative

code and Ohio Revised Code specifically provide that if a concurrence cannot be

reached, a decision shall be issued that includes a necessary order affirming the chief’s
Tuscarawas County, Case No. 2018 AP 05 0022                                               18


action; and the issue of whether Oxford’s mining activities caused appellants’ water

losses was raised in the administrative proceeding.

       {¶38} Karena Combs, Sandra McGuinness, and Smokey Mountain Limited

Partnership are in privity with Ben Combs and Eugene McGuinness relative to their claims

before the Commission. Additionally, in applying the doctrine of issue preclusion, the

causes of action do not have to be identical, so long as the issue has been actually and

directly litigated in the quasi-judicial administrative proceeding. In their complaint, each

appellant asserted three counts against Oxford, a claim for unreasonable use of

groundwater, a claim for injunctive relief to replace/restore diminished water supply and

provide reimbursement for temporary water supply costs, and a claim for damages from

the diminution and/or interruption of their water supply. All six of these claims in the

complaint center on the issue of whether Oxford caused appellants’ water loss and are

dependent upon the fact-finder concluding that Oxford caused appellants’ water loss, an

issued actually and directly litigated and determined before the Commission.

       {¶39} Accordingly, we find the doctrine of issue preclusion applies in this case and

precludes the relitigation of the issue of whether Oxford’s mining activities caused

appellants’ water losses.

                                        Manifest Injustice

       {¶40} The third argument appellants assert is that they were not obligated to

appeal the Commission’s decision pursuant to R.C. 1513.14, but they could instead file a

separate civil action pursuant to R.C. 1513.162(B). Further, that the application of res

judicata should be applied to administrative proceedings with flexibility and the application

of res judicata in this case “unjustly robbed” appellants of the opportunity to bring their
Tuscarawas County, Case No. 2018 AP 05 0022                                             19


claims against Oxford and obtain a decision on the central issue of the case, and thus

results in a manifest injustice.

       {¶41} We disagree with appellants and find no manifest injustice results from the

application of res judicata in this case. Rather, the doctrine of res judicata prevents

relitigation of the claims and issues decided by the Commission. Grava v. Parkman Twp.,

73 Ohio St.3d 379, 653 N.E.2d 226 (1995). Appellants had a full and fair opportunity to

present their case to the Commission. Id. The Commission held a five-day hearing,

heard from ten witnesses, examined numerous exhibits, and issued detailed findings of

fact, conclusions of law, a discussion section, and an order. As stated specifically in the

Commission’s order, “this decision may be appealed to the Court of Appeals * * * in

accordance with Ohio Revised Code 1513.14.” R.C. 1513.14 provides as follows:

              Any party aggrieved or adversely affected by a decision of the

       reclamation commission may appeal to the court of appeals for the county

       in which the activity addressed by the decision of the commission occurred,

       is occurring, or will occur, which court has exclusive jurisdiction over the

       appeal. The appeal shall be filed within thirty days of issuance of the

       decision of the commission. * * *

       {¶42} Appellants chose not to appeal the Commission’s decision pursuant to R.C.

1513.14 after having a full and fair opportunity to present their case to the Commission.

We find no manifest injustice in applying res judicata in this case.
Tuscarawas County, Case No. 2018 AP 05 0022                                         20


      {¶43} Based on the foregoing, appellants’ assignment of error is overruled.

      {¶44} The April 24, 2018 judgment entry of the Tuscarawas County Court of

Common Pleas is affirmed.


By Gwin, J.,

Hoffman, P.J., and

Wise, Earle, J, concur
