IN THE FAIRFIELD COUNTY COURT OF APPEALS,
FIFTH APPELLATE DISTRICT


ROBERT A. NEINAST
Plaintiff/Appellant
-vs-
BOARD OF TRUSTEES OF THE
FAIRFIELD COUNTY DISTRICT LIBRARY
Defendant/Appellee
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COURT OF APPEALS CASE
      NO. 2010-CA-011


Appeal from the Fairfield County
   Court of Common Pleas in Case
      No. 2009-CV-0657


BRIEF OF APPELLEE,
BOARD OF TRUSTEES OF THE FAIRFIELD
COUNTY DISTRICT LIBRARY




Robert A. Neinast
Pro Se Plaintiff/Appellant
8617 Ashford Lane
Pickerington, Ohio 43147
614-759-1601 (voice)
Roy E. Hart (0023826)
Assistant Prosecuting Attorney
Attorney for Defendant/Appellee,
Board of Trustees of the Fairfield
County District Library
201 South Broad Street, Suite 400
Lancaster, Ohio 43130
740-653-4259 (voice)
740-553-4708 (fax)





TABLE OF CONTENTS

Table of Cases, Statutes, and Other Authorities ii
Appellant’s Assignments of Error 1
Statement of the Issues Presented for Review 2
Statement of the Case 3
Statement of the Facts 5
The Law 9
Argument 12
Conclusion 15
Certificate of Service 17
Appendix 18




TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES


CASES:

Blackwell v. Gorman
(C.C.P., Franklin, 2007), 142 Ohio Misc. 2d 50
9, 10, 15
Cashelmara Villas Ltd. Partnership v. DiBenedetto
(C.A., Cuyahoga, 1993), 87 Ohio App. 3d 809
9
Neinast v. Bd. of Trustees of the Columbus Metro. Library
(S.D. Ohio 2002), 190 F. Supp. 2d 1040
4, 12
Neinast v. Bd. of Trustees of the Columbus Metro. Library
(C.A. 6, 2003), 346 F. 3d 585
4, 12
Neinast v. Bd. of Trustees of the Columbus Metro. Library
541 U.S. 990, 124 S.Ct. 2040, 158 L.Ed. 2d 495
4, 13
Neinast v. Board of Trustees of the Columbus Metropolitan Library
109 Ohio St. 3d 1506, (2006)
5, 12
Neinast v. Board of Trustees of the Columbus Metropolitan Library
(C.A., Franklin, 2006), 165 Ohio App. 3d 211, 845 N.E. 2d 570
5, 12, 13
Neinast v. Board of Trustees of the Columbus Metropolitan Library
(C.C.P., Franklin, 2005), unreported
5
Nye v. Ohio Bd. of Examiners of Architects
(C.A., Franklin, 2006), 165 Ohio App. 3d 502
9
State v. Szefcyk
77 Ohio St. 3d 93
15
Thompson v. Wing
70 Ohio St. 3d 176, (1994)
9
Toledo v. Thomas
(C.A., Lucas, 1989), 60 Ohio App.3d 42
11


OHIO REVISED CODE:

Section 3375.40(H) 5, 6, 13


OHIO RULES OF CIVIL PROCEDURE:

12(B) 1, 10
12(B)(6) 11, 13, 15
56 1, 11
56(C) 1, 15


TRIAL COURT ENTRIES:

Entry filed December 9, 2009 1, 2, 13
Entry filed January 8, 2010 2
Decision filed February 16, 2010 1, 2, 16





APPELLANT’S ASSIGNMENTS OF ERROR
APPELLANT ASSIGNS THE FOLLOWING ERRORS TO
THE TRIAL COURT, TO-WIT:


FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED BY NOT STRIKING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AS UNTIMELY.

SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED BY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT.

THIRD ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED BY DENYING PLAINTEFF’S MOTION FOR SUMMARY JUDGMENT.




STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
  1. Whether or not the trial court abused its discretion by converting Appellee’s Motion to Dismiss into a Motion for Summary Judgment and by permitting Appellant and Appellee to supplement their respective motions. Relates to Appellant’s Assignment of Error No. 1

  2. Whether or not the trial court failed to strike Appellee’s Motion for Summary Judgment filed January 7, 2010. Relates to Appellant’s Assignment of Error No. 1

  3. Whether or not the trial court properly applied the doctrine of collateral estoppel. Relates to Appellant’s Assignments of Error Nos. 2 and 3






STATEMENT OF THE CASE

Appellant appeals the February 16, 2010 decision of the Fairfield County Court of Common Pleas (Appendix No. 18 of this Brief) in which the lower court granted Appellee’s Motion for Summary Judgment and denied Appellant’s Motion for Summary Judgment and Motion to Strike Appellee’s Motion for Summary Judgment.

This case commenced on May 13, 2009, when Appellant filed his complaint for declaratory judgment and a permanent injunction. Thereafter, Appellee filed its answer and later sought and obtained permission from the lower court to file its amended answer which was filed on September 1, 2009. Plaintiff thereafter engaged in discovery seeking responses to interrogatories and production of documents, to all of which Appellee responded. Appellant then filed his Motion for Summary Judgment and Appellee then filed its 12(B)(6) Motion to Dismiss Appellant’s Complaint (Appendix No. 14).

By Entry filed December 9, 2009 (Appendix No. 16), the trial court determined that Appellee’s 12(B)(6) Motion to Dismiss was premised on the defense of collateral estoppel and found that a Motion for Summary Judgment is the preferred method by which to address the defense of collateral estoppel. The court went on to state that it converted Appellee’s Motion to Dismiss to a Motion for Summary Judgment, sua sponte, pursuant to Civil Rule 56 (Appendix No. 15) and further ordered Appellee to supplement its motion to comply with Civil Rule 56(C) (Appendix No. 15) on or before January 8, 2010 and provided Appellant an opportunity to file a Supplemental Memorandum Contra and gave Appellee an opportunity to reply to Appellant’s Supplemental Memorandum Contra. In compliance with the court’s order of December 9, 2009 (Appendix No. 16), Appellee supplemented its Motion to Dismiss converted to Motion for Summary Judgment by filing a true Motion for Summary Judgment and response to Appellant’s Motion for Summary Judgment on January 7,2010 in compliance with the court’s order. On December 14, 2009, Appellant moved the court to amend its Entry of December 9, 2009 (Appendix No. 16) by essentially objecting to the conversion of Appellee’s Motion to Dismiss into a Motion for Summary Judgment based upon Appellant’s erroneous belief that the court had no authority to make such conversion. The lower court responded by Entry dated January 8, 2010 (Appendix No. 17) vacating its Entry of December 9, 2009 (Appendix No. 16) in light of Appellee filing its Motion for Summary Judgment on January 7, 2010 and further went on to order deadlines for which responses and replies could be filed with the court. Appellant thereafter filed his Motion to Strike Appellee’s Motion for Summary Judgment and response to Appellant’s Motion for Summary Judgment.

On February 16, 2010, the trial court granted Appellee’s Motion for Summary Judgment and denied Appellant’s Motion for Summary Judgment as well as overruling any outstanding Motions remaining in this case (Appendix No. 18).



STATEMENT OF THE FACTS

(FACTS GLEANED FROM APPELLEE’S RESPONSES TO
APPELLANT’S INTERROGATORIES AND FROM
RELATED CASES.)

Pursuant to Appellee’s responses to Appellant’s interrogatories filed with the court, Appellant visited the Fairfield County District Library on at least three occasions in 2008 without wearing footwear, and finally, during a visit to the Fairfield County District Library in April of 2008, while not wearing footwear, Appellant was informed that the Library had a footwear policy and that he would be required to leave the premises. Appellant complied with the request and left. The Fairfield County District Library Board enacted a Code of Conduct by resolution on April 17, 2007, which states that shirt and shoes must be worn in any library facility. The Code of Conduct goes on to state that if a child has learned to walk, the child must wear shoes.

On May 20, 2008. Appellant asked the Fairfield County District Library Board to revoke its footwear policy, and Appellant simultaneously provided information to the Board concerning the alleged benefits of not wearing footwear. The Board, after considering Appellant’s request and Appellant’s information, resolved to maintain its Code of Conduct footwear policy. Undaunted, Appellant gave an oral presentation to the Board on October 21, 2008, outlining the benefits of being shoeless and the disadvantages of wearing footwear. On February 17, 2009, the Board again took action to retain its Code of Conduct footwear policy.

Appellant commenced litigation in this case on May 13, 2009. Appellant’s demand for relief stated:

“WHEREFORE, Plaintiff Robert A. Neinast respectfully requests that this Court grant him judgment as follows:

  1. Declare that the Board does not have the statutory authority under the law to make regulations requiring that patrons wear shoes in the Library.

  2. Declare that the footwear rule infringes upon Mr. Neinast’s personal liberty, is arbitrary and capricious, and does not bear a real and substantial relation to the health, safety, morals or general welfare of the public.

  3. Issue a permanent injunction preventing the Board of Trustees, the Director, or any other Library employee from enforcing any rule or regulation specifying that footwear must be worn in the Fairfield County District Library.

  4. Award Plaintiff any other legal and equitable relief to which he is entitled.”

Appellant is no stranger to footwear litigation. Pursuant to previously reported cases in the federal courts and in the courts of Ohio, in 2001, claiming violations of Section 1983, Title 42. U.s. Code, premised on deprivations of various constitutional rights [including infringement upon Plaintiff’s personal liberty] under the United States and Ohio Constitutions, Appellant filed a complaint in the common pleas court against the Board of Trustee of the Columbus Metropolitan Library, the former executive director of the library, and the library’s assistant manager of security. The matter subsequently was removed to federal district court where the parties moved for summary judgment. Thereafter, the district court granted defendant’s motion for summary judgment and denied Appellant’s motion for summary judgment. Neinast v. Bd of Trustees of the Columbus Metro. Library (S.D. Ohio 2002), 190 F. Supp. 2d 1040, (Appendix No. 3). From the district court’s judgment, Appellant appealed to the United States Court of Appeals for the Sixth Circuit, which affirmed the lower court’s judgment. Neinast v. Rd of Trustees of the Columbus Metro. Library (C.A, 6, 2003), 346 F. 3d 585, (Appendix No. 4). Certiorari was denied by the United States Supreme Court, 541 U.S. 990, 124 SQ. 2040, 158 L.Ld.2d 495, (Appendix No. 5). [Neinast v. Board of Trustees of the Columbus Metropolitan Library, (C.A., Franklin, 2006), 165 Ohio App. 3d 211 at page 213, 845 N.E. 2d 570 at page 571 (Appendix No. 7)].

After being evicted from the Columbus Metropolitan Library for going barefoot, Robert Neinast commenced litigation in June of 2004, against the Board of Trustees of the Columbus Metropolitan Library in the Franklin County Court of Common Pleas in case no. O4CVH-06-6341 (Appendix No. 8). Therein, Mr. Neinast sought declaratory and injunctive relief prohibiting the library from enforcing its footwear policy, while simultaneously challenging the Board’s statutory authority to promulgate and enforce footwear rules. Upon summary judgment, the common pleas court denied the demands for declaratory and injunctive relief and held that the library possessed the statutory authority according to Revised Code Section 3375.40(H) (Appendix No. 13) to require patrons of the library to wear footwear in the library. Mr. Neinast appealed the statutory authority ruling which permitted the promulgation and enforcement of footwear rules. The Tenth District Court of Appeals affirmed the judgment of the Franklin County Court of Common Pleas. See Neinast v. Board of Trustees of the Columbus Metropolitan Library (C.A., Franklin, 2006), 165 Ohio App. 3d 211, 845 N.E. 2d 570 (Appendix No. 7). (Appendix No. 7). Mr. Neinast then took his case to the Ohio Supreme Court; however, the Ohio Supreme Court did not accept his case for review. See Neinast v. Board of Trustees of the Columbus Metropolitan Library 109 Ohio St. 3d 1506, (2006), (Appendix No. 6).

This Court can readily see the Appellant herein has fully and completely litigated the issues in other courts that he has, once again, presented to this Court for review. Commencing in 2001, the Federal Courts were presented with notions of infringement of personal liberties due to footwear regulations. The Ohio courts, commencing in 2004, dealt with the issue of whether or not libraries possessed statutory authority under Revised Code Section 3375.40(H) (Appendix No. 13) to promulgate and enforce footwear rules. The Federal Courts held that footwear rules do not infringe upon Mr. Neinast’s personal liberties. The Ohio Courts held that libraries do have statutory authority under Revised Code Section 3375.40(H) (Appendix No. 13) to promulgate and enforce footwear rules. Mr. Neinast is now attempting to relitigate the same issues in this Court. The doctrine of collateral estoppel, or as is sometimes referred to as “issue preclusion”, bars Appellant’s claims herein.



THE LAW

A.      Collateral Estoppel

The law in Ohio regarding the doctrine of collateral estoppel or issue preclusion has been restated many times in different contexts, ranging from real estate matters and wrongful death cases to professional malpractice issues. The doctrine of collateral estoppel or issue preclusion is not to be confused with the doctrine of res judicata or claim preclusion. See Cashelmara Villas Ltd. Partnership v. Difienedetto, (C.A., Cuyahoga, 1993), 87 Ohio App 3d 809 (Appendix No 2); Thompson v. Wing, (1994), 70 Ohio St. 3d 176 (Appendix No. 11); Nye v. Ohio Bd. Of Examiners of Architects, (C.A., Franklin, 2006, 165 Ohio App 3d 502 (Appendix No. 9); and Blackwell v. Gorman, (C.C.P., Franklin, 2007), 142 Ohio Misc. 2d 50 at pages 63-66 (Appendix No. 1). The elements of the doctrine of collateral estoppel have gradually changed although the doctrine may arise in different fact patterns.

The current test of whether or not the doctrine of collateral estoppal applies to a specific fact pattern has been most clearly stated in the Blackwell case, supra, at page 63 (Appendix No. 1). The Blackwell court stated:

Collateral estoppel applies when (1) the fact or issue was actually and directly litigated in the prior action, (2) the fact or issue was passed upon and determined by a court of competent jurisdiction, and (3) the party against whom collateral estoppel is asserted was a party in privity with a party to the prior action.

Further, the test of “mutuality” must also be applied in order to determine if the doctrine of collateral estoppal bars a Plaintiff's claim in a second law suit. Thc test of “mutuality” has been relaxed over the years. The original test of “mutuality” required that issues in a previous decision may not be drawn into question in a subsequent action between the same parties or their privies, whether the causes of action are identical or different. Blackwell v. Gorman, Ibid., at page 64 (Appendix No. 1).

The Nye court said it this way:

Mutuality of parties generally is a requisite to collateral estoppel, so that collateral estoppel operates only when all of the parties to the present proceedings were bound by the prior judgment. In order to preclude either party from relitigating an issue, a judgment must be preclusive upon both. Nye, Ibid., at page 508.

Over the years, however, the original test of “mutuality” has been relaxed to require that the party against whom the doctrine of collateral estoppel is to be applied had a full and fair opportunity to litigate the issues. Furthermore, there is no longer any requirement that the party asserting the doctrine of collateral estoppel must have been a party to the prior action. Blackwell, ibid., at page 63 (Appendix No. 1).

Today, therefore, the applicability of the doctrine of collateral estoppel to a case or set of issues depends upon whether (1) a fact or issue was actually and directly litigated in the prior action, (2) that fact or issue was passed upon and determined by a court of competent jurisdiction and (3) whether or not the party against whom collateral estoppel is asserted was a party in privity with a party to the prior action. The test of “mutuality” then asks the question whether or not the party against whom the doctrine of collateral estoppel is to be applied had a full and fair opportunity to litigate the issues Blackwell, Ibid., at page 63 (Appendix No. 1).


B.      Authority of a Court to Convert a Motion to Dismiss Pursuant to Civil Rule 12(B)(6) into a Motion for Summary Judgment

In pertinent part, Civil Rule 12(B) (Appendix No. 14) states:

When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided, however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.

Civil Rule 12(B)(6) (Appendix No. 14) has been construed by the courts over many years. The Court of Appeals of Lucas County had an opportunity to construe the authority of a court to convert a motion to dismiss into a motion for summary judgment in the case of Toledo v. Thomas, (CA. Lucas, 1939), 60 Ohio App. 3d 42 (Appendix No. 12). The court stated on page 33 that if a court, in ruling on a motion to dismiss pursuant to Civil Rule 12(B)(6), (Appendix No. 14), intends to consider matters outside the pleadings, it must first convert the motion to dismiss into a motion for summary judgment, and upon doing so, give notice of the conversion to the parties in order to allow them the opportunity to present evidentiary matters pertinent to the converted motion.

It is therefore abundantly clear that the Civil Rules not only allow and authorize, but also require a court to convert a motion to dismiss based upon a failure to state a claim upon which relief can be wanted into a motion for summary judgment when a court considers matters outside the pleadings and when the court gives all parties a reasonable opportunity to present all materials made pertinent to such motion by Civil Rule 56 (Appendix No. 15).



ARGUMENT

A. Collateral Estoppel

In the instant case, Appellant asked for three specific things. He first asked the lower Court to declare that the Board does not have the statutory authority under the law to make regulations requiring that patrons wear shoes in the library, Was this issue actually and directly litigated in a prior action? Yes. This issue was actually and directly litigated in the Common Pleas Court of Franklin County, Ohio, and the Tenth District Court of Appeals, only to have the Ohid Supreme Court decline to review the lower court decisions. See Neinast v. Board of Trustees of the Columbus Metropolitan Library, (C.A., Franklin, 2006), 165 Ohio App. 3d 211, 845 N.E. 2d 570 (Appendix No. 7), and Neinast v. Board of Trustees of the Columbus Metropolitan Library, 109 Ohio St. 3d 1506, (2006) (Appendix No. 6). The Franklin County courts found that the Columbus Metropolitan Library possessed the statutory authority according to Revised Code Section 3375.40(H) (Appendix No. 13) to require patrons of the library to wear footwear in the library.

Appellant then asked the lower Court to declare that the footwear rule infringed upon his personal liberty, was arbitrary and capricious, and did not bear a real and substantial relation to the health, safety, morals, or general welfare of the public. Was this issue actually and directly litigated in a prior action? Yes. The Federal District Court and the Sixth Circuit Court of Appeals spoke directly to the issue of infringement of personal liberty and found no infringement, only to have the United States Supreme Court deny certiori. See Neinast v. Bd. of Trustees of the Columbus Metro. Library (S.D. Ohio 2002), 190 F. Supp. 2d 1040 (Appendix No. 3); Neinast v. Bd of Trustees of the Columbus Metro. Library (C.A. 6, 2003), 346 F. 3d 585 (Appendix No. 4); and Neinast v. Bd. of Trustees of the Columbus Metro. Library, 541 U.S. 990, 124 S. Ct. 2040, 158 L. Ed. 2d 495 (Appendix No. 5).

Appellant finally asked the lower Court to issue a permanent injunction preventing the Board of Trustees, the Director, or any other Library employee from enforcing any rule or regulation specifying that footwear must be worn in the Fairfield County District Library. Was this issue actually and directly litigated in a prior action? Yes. The issue of injunctive relief was actually and directly litigated in the Franklin County Court of Common Pleas, and the Court found in favor of the Columbus Metropolitan Library. See Neinast v. Board of Trustees of the Columbus Metropolitan Library, (C.A. Franklin, 2006), 165 Ohio App.3d 211,845 N.E. 2d 570 (Appendix No. 7).

We then come to examine the test of “mutuality”. Did Appellant have a full and fair opportunity to litigate the issues in the prior actions? Yes, he did. in every case, Mr. Neinast was given the opportunity to fully and fairly explore the issues as presented to each lower court by way of summary judgment, and thereafter, briefed on appeal in the appellate courts. Indeed, Mr. Neinast has had the opportunity to file a motion for summary judgment, and now an appellate brief, in the case at bar as well.


B. Authority of the lower court to convert a 12(B)(6) motion to dismiss into a motion for summary judgment

Civil Rule 12(B)(6) (Appendix No. 14) not only permits but also requires a court to convert a 12(B)(6) motion to dismiss into a motion for summary judgment when a court intends to consider matters outside the pleadings. It is clear from the trial court’s order of December 9, 2009 (Appendix No. 16), that it intended to consider matters outside the pleadings when it gave notice to the parties of the conversion of Appellee’s motion to dismiss to that of a motion for summary judgment. The trial court went on to provide a scheduling order in order for the parties to adequately respond to the converted motion. There was no abuse of discretion. Both Appellant and Appellee were given ample opportunity to supplement their pleadings prior to the trial court rendering its decision.



CONCLUSION

All of the elements of the doctrine of collateral estoppel have been fulfilled. The issues were actually and directly litigated in prior eases; the issues were passed upon and determined by courts of competent jurisdiction; and Appellant, the party against whom collateral estoppel is asserted, was not only in privity with the Plaintiffs in the prior cases &ndashl he is the Plaintiff in each of the prior cases. The conclusion is inescapable. The doctrine of collateral estoppel or issue preclusion applies.

The doctrine of collateral estoppel is not just some procedural window-dressing. It is basic to our legal system. “Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the results of the contest..." Blackwell, Ibid. at page 66, (Appendix No. 1) citing State v. Szefcyk, 77 Ohio St. 3d 93 at page 95 (Appendix No. 10).

Furthermore, Civil Rule 12(B)(6) (Appendix No. 14) compels a court to convert a motion to dismiss into a motion for summary judgment when the court intends to consider matters outside the pleadings as long as the court gives reasonable opportunity to respond to the conversion. The lower court in this case complied with all of the requirements. Abuse of discretion? There is not even a scintilla of evidence in this case to support an allegation of abuse of discretion.

Finally, applying the requirements of Civil Rule 56(C) (Appendix No. 15), it is plainly clear that no genuine issue as to any material fact remains to be litigated concerning the application of the doctrine of collateral estoppel to this case; that Appellee is entitled to judgment as a matter of law; and it appears from the evidence that reasonable minds can come to but one conclusion, and in viewing such evidence most strongly in favor of Appellant, that conclusion is adverse to Appellant.

Appellee, therefore, urges this Court to apply the doctrine of collateral estoppel and demands that this Court of Appeals affirm the decision of the lower court filed February 16, 2010 (Appendix No. 18).



  Respectfully submitted,
/s/     Roy E. Hart          
Roy E. Hart (0023826)
Assistant Prosecuting Attorney
Attorney for Defendant/Appellee,
Board of Trustees of the Fairfield
County District Library
201 South Broad Street — Suite 400
Lancaster, Ohio 43130
740-653-4259 (voice)
740-653-4708 (fax)





CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing Brief of Appellee was sent by ordinary U.S. mail, postage prepaid, to Appellant, Robert A. Neinast, at his address of 8617 Ashford Lane, Pickerington, Ohio 43147, this 10th day of May, 2010.

  /s/     Roy E. Hart          
Roy E. Hart (0023826)
Assistant Prosecuting Attorney
Attorney for Defendant/Appellee,
Board of Trustees of the Fairfield
County District Library
201 South Broad Street — Suite 400
Lancaster, Ohio 43130
740-653-4259 (voice)
740-653-4708 (fax)