[Cite as Price v. Carter Lumber Co., 2012-Ohio-6109.]


STATE OF OHIO                    )                           IN THE COURT OF APPEALS
                                 )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

GERALD PRICE                                                 C.A. No.   26243

        Appellant

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
CARTER LUMBER CO., et al.                                    COURT OF COMMON PLEAS
                                                             COUNTY OF SUMMIT, OHIO
        Appellees                                            CASE No.   CV-2006-05-3098

                                 DECISION AND JOURNAL ENTRY

Dated: December 26, 2012



CARR, Judge.

        {¶1}    Appellant Gerald Price appeals the judgment of the Summit County Court of

Common Pleas. This Court reverses and remands.

                                                        I.

        {¶2}    This matter arises out of allegations by Mr. Price that he was laid off and refused

rehiring by his supervisor, appellee Jim Collins, at Carter Lumber because of a disability arising

out of medical issues. The case returns to this Court on appeal from the trial court’s entry of

summary judgment in favor of Mr. Collins after our prior remand to the trial court to address Mr.

Price’s claims against his supervisor in his individual capacity. Price v. Carter Lumber Co., 9th

Dist. No. 24991, 2010-Ohio-4328.

        {¶3}    We reiterate the relevant procedural history as follows:

        The Equal Employment Opportunity Commission filed a complaint against Carter
        in federal district court, making claims on behalf of Mr. Price under Title I of the
        Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of
                                          2


1991. The Commission averred that Carter discriminated against Mr. Price by
denying him employment because of his disability.

Mr. Price filed his own federal complaint against both Carter and Mr. Collins. He
averred a disability discrimination claim against Carter under the Americans with
Disabilities Act, a similar state-law claim against both Carter and Mr. Collins
under Chapter 4112 of the Ohio Revised Code, and a claim against both Carter
and Mr. Collins for intentional infliction of emotional distress. The district court
consolidated the two federal cases and dismissed Mr. Price’s claims against Mr.
Collins, both of which were based on state law, without prejudice.

Mr. Price later sued Carter and Mr. Collins in the Summit County Common Pleas
Court for disability discrimination under Chapter 4112 of the Ohio Revised Code,
intentional infliction of emotional distress, and violation of public policy. In their
answers, Carter and Mr. Collins asserted defenses including “waiver, collateral
estoppel, and/or issue preclusion and/or claim preclusion.” Four months later, the
parties tried the federal case.

Following a trial limited to the federal disability discrimination claim against
Carter, the jury returned a verdict, supported by interrogatory responses, in favor
of Carter and against Mr. Price and the Commission. While post-judgment
motions remained pending in federal court, Carter and Mr. Collins moved the
common pleas court to continue the trial of the state claims until after the district
court’s judgment would become final and res judicata would apply. Mr. Price
opposed that motion, arguing that different standards apply to the state and federal
claims and that, therefore, res judicata would not bar his state claims. The
common pleas court denied the requested continuance.

Carter and Mr. Collins moved the common pleas court to reconsider its denial of
the requested continuance. They included with their motion certified copies of
jury interrogatories from the federal case, the federal court’s journal entry
announcing the verdict against Mr. Price, and Mr. Price’s federal complaint. The
common pleas court granted the motion to reconsider, cancelled the trial, and
placed the case on the court’s inactive docket.

When the common pleas court reactivated the case, Carter and Mr. Collins moved
for summary judgment, arguing that, due to the preclusive effect of the federal
jury interrogatory responses, Mr. Price was barred from pursuing his state-law
claims against them. Following Mr. Price’s response to that motion, the common
pleas court denied summary judgment on the disability discrimination and
intentional infliction of emotional distress claims, but granted Carter and Mr.
Collins summary judgment on the violation of public policy claim. After the case
was transferred to a new trial judge, Carter and Mr. Collins moved for
reconsideration of the denial of summary judgment on the disability
discrimination and intentional infliction of emotional distress claims. The new
judge refused to reconsider, determining that Carter and Mr. Collins had not
presented any evidence that the first common pleas judge had not considered.
                                                 3


       Later, the new judge sua sponte reconsidered the motion for summary judgment.
       She then granted summary judgment to Carter based on claim preclusion and to
       Mr. Collins based on a determination that Mr. Price had failed to state a separate
       claim against him in his individual capacity.

Price at ¶ 2-7.    We emphasize that neither state-law claim (disability discrimination and

intentional infliction of emotional distress) was litigated against Mr. Collins in the federal court.

Moreover, although the federal district court did not dismiss Mr. Price’s state-law disability

discrimination claim against Carter, we recognized that “both parties agree that no state-law

claims were tried to the federal jury.” Id. at ¶ 16. In addition, Mr. Price did not aver a claim

against Mr. Collins under the Americans with Disabilities Act.

       {¶4}    This Court affirmed the trial court’s award of summary judgment in favor of

Carter on the basis of claim preclusion. Id. at ¶ 20. We reversed the trial court’s award of

summary judgment in favor or Mr. Collins, however, because the trial court erroneously

determined that (1) Mr. Price failed to allege a claim of intentional infliction of emotional

distress against him, and (2) Mr. Price failed to state a claim of disability discrimination against

him in his individual capacity. Id. at ¶ 23 and 25.

       {¶5}    On remand, Mr. Collins filed a renewed motion for summary judgment, in which

he argued that the claim of disability discrimination was barred by issue preclusion. Moreover,

he argued that Mr. Price could not establish a prima facie case of intentional infliction of

emotional distress. Mr. Price filed a response in opposition. The trial court granted summary

judgment in favor of Mr. Collins on both claims on the basis of issue preclusion. Mr. Price filed

a timely appeal in which he raises two assignments of error.
                                                 4


                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
       WHEN IT RULED THAT THE DISABILITY DISCRIMINATION CLAIM
       UNDER CHAPTER 4112 OF THE OHIO REVISED CODE AND THE
       INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM
       AGAINST JIM COLLINS ARE BARRED BASED ON ISSUE PRECLUSION.

       {¶6}    Mr. Price argues that the trial court erred by granting summary judgment in favor

of Mr. Collins on the claims of disability discrimination and intentional infliction of emotional

distress on the basis of issue preclusion. This Court agrees.

       {¶7}    This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio

App.3d 7, 12 (6th Dist.1983).

       {¶8}    Pursuant to Civ.R. 56(C), summary judgment is proper if:

       No genuine issue as to any material fact remains to be litigated; (2) the moving
       party is entitled to judgment as a matter of law; and (3) it appears from the
       evidence that reasonable minds can come to but one conclusion, and viewing such
       evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶9}    To prevail on a motion for summary judgment, the party moving for summary

judgment must be able to point to evidentiary materials that show that there is no genuine issue

as to any material fact, and that the moving party is entitled to judgment as a matter of law.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once a moving party satisfies its burden of

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to

Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere
                                                 5


allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d

447, 449 (1996).

       {¶10} Issue preclusion, or collateral estoppel, “will preclude the relitigation of a fact or

point that was actually and directly at issue in a previous proceeding between the same parties or

their privies, and was passed upon and determined by a court of competent jurisdiction.”

Robinson v. Springfield Local School Dist. Bd. of Edn., 9th Dist. No. 20606, 2002 WL 462860

(Mar. 27, 2002). “It is not enough that a similar issue * * * was litigated and decided * * *. For

collateral estoppel to bar the relitigation of an issue, precisely the same issue must have

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

St.3d 176, 185 (1994). “The main legal thread which runs throughout the determination of the

applicability of * * * collateral estoppel[] is the necessity of a fair opportunity to fully litigate

and to be ‘heard’ in the due process sense. Accordingly, an absolute due process prerequisite to

the application of collateral estoppel is that the party asserting the preclusion must prove that the

identical issue was actually litigated, directly determined, and essential to the judgment in the

prior action. Collaterally estopping a party from relitigating an issue previously decided against

it violates due process where it could not be foreseen that the issue would subsequently be

utilized collaterally, and where the party had little knowledge or incentive to litigate fully and

vigorously in the first action due to the procedural and/or factual circumstances presented

therein.” (Internal citations omitted.) Goodson v. McDonough Power Equipment, Inc., 2 Ohio

St.3d 193, 200-201 (1983).
                                                 6


       {¶11} Moreover, “collateral estoppel operates only where all of the parties to the present

proceeding were bound by the prior judgment.” Id. at paragraph one of the syllabus. “There

being the general requisite of an identity of persons and parties, or their privies, within the prior

proceeding in order for the judgment or decree to operate as an estoppel, strangers to such a

judgment or decree will not be affected thereby.” Id. at 196. Because Mr. Collins was not a

party to the federal case, all claims against him having been dismissed without prejudice by the

district court, collateral estoppel will preclude relitigation of Mr. Price’s claims only if Mr.

Collins was in privity with Carter.

       {¶12} The concept of privity has been described as “amorphous.” Kirkhart v. Keiper,

101 Ohio St.3d 377, 2004-Ohio-1496, ¶ 8, quoting Brown v. Dayton, 89 Ohio St.3d 245, 248

(2000). It may exist when the party and other individual, here Carter and Mr. Collins, “have

mutual interests, including the same desired result.” Robinson, supra, citing Deaton v. Burney,

107 Ohio App.3d 407, 413 (2d Dist.1995). Furthermore, privity may exist when an interest in

the result is coupled with active participation in the original lawsuit. State ex rel. Schachter v.

Ohio Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-1704, ¶ 34. The preclusion

“‘applies likewise to those in privity with the litigants and to those who could have entered the

proceeding but did not avail themselves of the opportunity.’” (Emphasis added.) Id. at ¶ 35,

quoting Howell v. Richardson, 45 Ohio St.3d 365, 367 (1989). Moreover, mutuality will exist

only if “‘the person taking advantage of the judgment would have been bound by it had the result

been the opposite. Conversely, a stranger to the prior judgment, being not bound thereby, is not

entitled to rely upon its effect[.]’” Schachter at ¶ 34, quoting O’Nesti v. DeBartolo Realty Corp.,

113 Ohio St.3d 59, 2007-Ohio-1102, ¶ 9. In the absence of mutuality or identity of parties in
                                                 7


both cases, issue preclusion is inapplicable. Kirkhart v. Keiper, 101 Ohio St.3d 377, 2004-Ohio-

1496, ¶ 8.

Disability Discrimination

       {¶13} Although Mr. Price’s claims against both Carter and Mr. Collins fell under the

broad umbrella of disability discrimination, this Court previously recognized that Mr. Price

alleged a claim of disability discrimination against Mr. Collins in his individual capacity. In fact,

the complaint contained additional, distinct allegations against Mr. Collins, notwithstanding the

fact that the claim was identified as a disability discrimination claim against both parties. To

prevail on such a claim, Mr. Price generally must prove that Mr. Collins was an employer who

discharged him without cause or refused to rehire him because of his disability.                R.C.

4112.02(A). To establish a prima facie case, Mr. Price must prove “1) he is disabled; 2) he

suffered an adverse employment action at least in part due to his handicap; and 3) that he could

safely and substantially perform all essential functions of the job.” Stembridge v. Summit Acad.

Mgt., 9th Dist. No. 23083, 2006-Ohio-4076, ¶ 22, citing Hood v. Diamond Products, Inc., 74

Ohio St.3d 298, 302 (1996). It is not disputed that Mr. Collins, as a “person acting directly or

indirectly in the interest of [Carter],” was an employer pursuant to R.C. 4112.01(A)(2).

       {¶14} In this case, the trial court erred by finding that Mr. Price was precluded from

litigating his disability discrimination claim against Mr. Collins on the basis of issue preclusion

because Mr. Collins was not in privity with Carter. Accordingly, the jury’s findings in the

federal case did not resolve the issues relevant to Mr. Price’s claim against Mr. Collins.

       {¶15} In reliance on Genaro v. Cent. Transp., Inc., 84 Ohio St.3d 293, 296 (1999), this

Court acknowledged in Price, 2010-Ohio-4328, ¶ 25, that supervisors and managers may be held

individually liable pursuant to R.C. Chapter 4112 for their own discriminatory actions. Because
                                                8


R.C. 4112.01(A)(2) defines “employer” to include “any person acting directly or indirectly in the

interest of an employer[,]” (emphasis added), it is conceivable that a finder of fact may find a

supervisor liable for discriminatory conduct at the same time it finds the company not liable

under the statute, where the supervisor was found to be acting in disregard of company policies.

The converse may also be true; a company may be found liable for discriminatory acts, while a

supervisor may be absolved of personal liability where his conduct did not form the basis of the

discrimination.

       {¶16} In this case, Carter was not found liable for violating the Americans with

Disabilities Act based on the following findings by the district court jury: (1) Mr. Price was a

disabled person within the provisions of the Americans with Disabilities Act; (2) Mr. Price did

not request any accommodations at the time he was terminated or laid off; (3) Mr. Price’s

necessary accommodations were not so evident to Carter that he did not need to make a specific

request for them; (4) Carter required previously terminated or laid off employees to submit an

application in order to be considered for full-time reemployment; (5) Mr. Price did not submit an

application for full-time reemployment in 2003; and (6) Mr. Price did not seek, by direct or

indirect means, a continuation of or return to employment with Carter in 2003.

       {¶17} Mr. Collins was not a party to the federal case, and the district court did not issue

any judgment in regard to the state-law discrimination claim against Carter. While Carter

desired a result absolving it of liability, such a result would not have necessarily absolved Mr.

Collins of personal liability for his own discriminatory actions. Moreover, had the district court

jury found Carter liable, we cannot say that Mr. Collins would have been bound by that

judgment, not having had a full and fair opportunity to defend, given that the district court

dismissed all claims against him. See Schachter at ¶ 34. More importantly, Mr. Price had no
                                                  9


opportunity to litigate his claims against Mr. Collins in his individual capacity. This is not the

case where Mr. Price could have joined Mr. Collins in the proceeding but simply did not avail

himself of that opportunity. See id. at ¶ 35. Rather, he attempted to litigate all his claims against

both Carter and Mr. Collins at the same time, but the district court dismissed without prejudice

all his claims against Mr. Collins. Under these circumstances, this Court concludes that Mr.

Collins did not share an identity of interests with Carter in the federal litigation. As the two were

not in privity, the trial court erred in granting summary judgment in favor of Mr. Collins in

regard to the disability discrimination claim on the basis of issue preclusion.

Intentional infliction of emotional distress

       {¶18} To prevail on a claim for intentional infliction of emotional distress, Mr. Price had

to prove: “‘1) that [Mr. Collins] either intended to cause emotional distress or knew or should

have known that actions taken would result in serious emotional distress to [Mr. Price]; 2) that

[Mr. Collins’] conduct was so extreme and outrageous as to go “beyond all possible bounds of

decency” and was such that it can be considered as “utterly intolerable in a civilized

community”; 3) that [Mr. Collins’] actions were the proximate cause of [Mr. Price’s] physic

injury; and 4) that the mental anguish suffered by [Mr. Price] is serious and of a nature that “no

reasonable man could be expected to endure it.”’” Alam v. Chemstress Consultant Co., 9th Dist.

No. 22175, 2005-Ohio-272, ¶ 8, quoting Pyle v. Pyle, 11 Ohio App.3d 31, 34 (8th Dist.1983).

       {¶19} The trial court granted summary judgment in favor of Mr. Collins in regard to the

claim of intentional infliction of emotional distress solely on the basis of issue preclusion after

finding that “[i]n light of the findings of the federal court, it is impossible to find this dismissal

and failure to rehire rise to the level of ‘extreme and outrageous’ conduct required to sustain such

a claim.” Because we have already concluded that Mr. Collins was not in privity with Carter in
                                                10


the federal case, issue preclusion was not applicable in this case. Moreover, none of the findings

made by the federal court jury implicated any issues relevant to a cause of action for intentional

infliction of emotion distress. See Robinson, supra.

       {¶20} Mr. Price’s first assignment of error is sustained.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
       WHEN IT RULED THAT NO GENUINE ISSUES OF MATERIAL FACTS
       REMAINED.

       {¶21} Mr. Price argues that the trial court erred by granting summary judgment in favor

or Mr. Collins because genuine issues of material fact exist.

       {¶22} The trial court granted summary judgment in favor of Mr. Collins solely on the

basis of issue preclusion. It did not review the evidence submitted by the parties in conjunction

with the motion for summary judgment and response in opposition. As this Court remains a

reviewing court, we will not consider the issues relevant to the motion for summary judgment in

the first instance. Harris-Coker v. Abraham, 9th Dist. No. 26053, 2012-Ohio-4135, ¶ 4. The

trial court did not analyze whether a genuine issue of material fact existed with regard to whether

Mr. Price could make a prima facie case for his claims of disability discrimination and

intentional infliction of emotional distress. Accordingly, this Court is compelled to reverse and

remand the matter to the trial court to consider those claims in the first instance. See Harris-

Coker at ¶ 7.

       {¶23} Because the trial court failed to address the substance of Mr. Price’s claims

against Mr. Collins, the second assignment of error is sustained.
                                                11


                                                III.

       {¶24} Mr. Price’s assignments of error are sustained. The judgment of the Summit

County Court of Common Pleas is reversed and the cause remanded for further proceedings

consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       DONNA J. CARR
                                                       FOR THE COURT




WHITMORE, P. J.
CONCURS.
                                                 12



DICKINSON, J.
DISSENTING.

       {¶25} The majority’s decision is incorrect for two reasons.          First, mutuality is not

required when a party is asserting collateral estoppel defensively. In Goodson v. McDonough

Power Equipment Inc., 2 Ohio St. 3d 193, the Ohio Supreme Court analyzed whether mutuality

is a prerequisite to collateral estoppel. Id. at 196. Although rejecting “offensive nonmutual

collateral estoppel,” the Court noted that other cases might present exceptions to the general rule.

Id. at 202-03. Following Goodson, the consensus of Ohio’s appellate districts, including this

district, has been that “Ohio law allows the use of non-mutual defensive collateral estoppel when

a party against whom the doctrine is asserted previously had his day in court and was permitted

to fully litigate the specific issue sought to be raised in a later action.” Hoover v. Transcon. Ins.

Co., 2d Dist. No. 2003-CA-46, 2004-Ohio-72, ¶ 15, 17; Michaels Bldg. Co. v. City of Akron, 9th

Dist. No. 13061, 1987 WL 25758, *3 (Nov. 25, 1987) (“[N]onmutuality of parties has been

acceptable where it is shown that the party seeking to avoid collateral estoppel clearly had his

day in court on the specific issue brought into litigation within the later proceeding.”). In this

case, Gerald Price had a full jury trial on the factual issues that Mr. Collins is attempting to

prevent him from re-litigating. He has already had his day in court on those issues.

       {¶26} The other reason that the majority’s decision is incorrect is because it has

analyzed only one of the ways of determining privity.          It correctly acknowledges that “a

mutuality of interest, including an identity of desired result, may create privity,” State ex rel.

Schachter v. Ohio Pub. Employees Ret. Bd., 121 Ohio St. 3d 526, 2009-Ohio-1704, ¶ 34 (quoting

Kirkhart v. Keiper, 101 Ohio St. 3d 377, 2004-Ohio-1496, ¶ 8). The Ohio Supreme Court,

however, has recognized that the “concept of privity for purposes of res judicata is ‘somewhat
                                                 13


amorphous.’” Id. at ¶ 33 (quoting Brown v. City of Dayton, 89 Ohio St. 3d 245, 248 (2000)). “In

certain situations . . . a broader definition of ‘privity’ is warranted. As a general matter, privity

‘is merely a word used to say that the relationship between the one who is a party on the record

and another is close enough to include that other within the res judicata.’” Brown, 89 Ohio St.

3d at 248 (quoting Bruszewski v. United States, 181 F. 2d 419, 423 (3d Cir. 1950)). Notably, the

Ohio Supreme Court has determined that “[a]n interest in the result of and active participation in

the original lawsuit may also establish privity.” O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.

3d 59, 2007-Ohio-1102, ¶ 9.

        {¶27} The majority has not analyzed whether Jim Collins had an interest and was an

active participant in Mr. Price’s federal lawsuit. Its opinion, therefore, is incomplete. Upon

review of the parts of the federal case that have been made part of the record in this case, it

appears that Mr. Collins was an active participant and had a strong interest in the federal case.

He is a Carter Lumber store manager and was Carter Lumber’s leading witness in the federal

case, providing over 140 pages of testimony. In my opinion, Mr. Collins has established that he

is in privity with Carter Lumber regarding the factual issues that were resolved in the federal

case. I, therefore, dissent.


APPEARANCES:

EDWARD L. GILBERT, Attorney at Law, for Appellant.

THOMAS F. HASKINS, JR., Attorney at Law, for Appellee.

MICHELE MORRIS, Attorney at Law, for Appellee.
