COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
Robert A. Neinast
Plaintiff-Appellant,v.Board of Trustees of the Fairfield
County District Library,Defendant-Appellee.:
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Appeal No. 2010-CA-11
Trial No. 09 CV 0657
REPLY BRIEF OF APPELLANT ROBERT A. NEINAST
Robert A. Neinast
Plaintiff, pro se
8617 Ashford Lane
Pickerington, Ohio 43147
Phone: 614-759-1601
TABLE OF CONTENTS
Introduction 1 Argument 1 1. Collateral Estoppel 1 2. The Motion to Dismiss 6 Conclusion 8 Certificate of Service 9
TABLE OF AUTHORITIES
CASES:
Alternatives Unlimited-Special, Inc. v. Ohio Dep't of Education (Dist. 10, 2006), 2006-Ohio-4779, 168 Ohio App.3d 592, 861 N.E.2d 163 2 Blackwell v. Gorman (C.C.P., Franklin, 2007), 142 Ohio Misc. 2d 50 (1994), 68 Ohio St.3d 521, 629 N.E.2d 395 1 Business Data Systems, Inc. v. Figetakis (9th Dist. 2006), 2006-Ohio-1036 7 Curran v. City of Youngstown, Case No. 186118 (Mahoning County Court of Common Pleas, Apr. 21, 1969) 5 Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 443 N.E.2d 97 1, 2, 3 Koss v. The Kroger Co. (Dist. 10, 2004), 2004-Ohio-3595 3 Miller v. Lint (1980), 62 Ohio St.2d 209 7 Mason v. Guerard (Dist. 5, 2010), 2010-Ohio-1834 8 Piersant v. Bryngelson (8th Dist. 1989), 61 Ohio App.3d 359 7 Pollack v. Watts (Aug. 10, 1998), 5th Dist. No. 97CA0084 7 Whaley v. Franklin County Board of Commissioners (2001), 2001-Ohio-1287, 92 Ohio St.3d 574 7
Introduction
The Brief of Appellee, the Fairfield County District Library (“Library”), curiously fails to address those issues from Neinast’s Appellant Brief that clearly demonstrate that the trial court erred. The particulars of this case do not support the relaxing of mutuality normally required to assert collateral estoppel. In addition, relaxing that mutuality is supposed to be a rare exception; this case not only does not fall under the currently recognized exceptions, it has specific features that preclude adding it as an exception.
In addition, the trial court had no authority to convert the Appellee’s Motion to Dismiss to a Motion for Summary Judgment. Appellee’s Motion to Dismiss, contrary to Appelle’s claims, was not a Civ. R. 12(B)(6) motion, and therefore was not eligible for being converted. Instead, Appellee filed an untimely Motiontfor Summary Judgment without leave, and that Motion should have been struck.
Argument
1. Collateral Estoppel
The situation regarding the relaxing of mutuality when asserting collateral estoppel is not quite as simplistic as presented in Appellee's brief. There’s an old adage that, if the best citation for one’s position comes not from the Supreme Court or even a Court of Appeals, then one may not be fully representing the law. Appellee’s citation-in-chief, Blackwell v. Gorman (C.C.P., Franklin, 2007), 142 Ohio Misc. 2d 50, is from a Common Pleas Court. If there had been a better citation from a higher source supporting its point, Appellee probably would have used it. The controlling authority regarding the relaxing of the requirement of mutuality regarding collateral estoppel is still Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 443 N.E.2d 97. When lesser authorities have extracted and distilled it, they have sometimes missed the essense. While Courts of Appeals have occasionally relaxed the requirement of mutuality, they have also recognized, as required by Goodson, that such exceptions are rare and must be carefully considered. See, e.g., Alternatives Unlimited-Special, Inc. v. Ohio Dep't of Education (Dist. 10, 2006), 2006-Ohio-4779, 168 Ohio App.3d 592, 861 N.E.2d 163, at ¶38: “With few exceptions, strangers to the previous judgment or decree will not be affected by the previous adjudication, and the doctrine of estoppel is irrelevant.” (Emphasis added.)
The doctrine set out in Goodson is that mutuality of parties is in almost all cases still required, and that any exceptions must be justified as “serving justice within the framework of sound public policy.” In context:Upon a considered review of the arguments presented, as well as available cases and comment on the subject, we conclude that the principle of mutuality as a prerequisite to the application of collateral estoppel, as applied in this state, recognizing the need in certain instances for the flexibility and exceptions to such rule, has been responsive to the conflicting principles of due process and judicial economy. We therefore opt to adhere to such principle as a general proposition, while realizing that there may well be other cases in which there are presented additional exceptions which could be acceptable to this court upon the basis of serving justice within the framework of sound public policy.
Whether or not we, in the future, may conclude it to be advisable to adopt the nonmutuality rule as a general proposition, for the present we reaffirm our prior general stance that collateral estoppel may generally be applied only when the party seeking to use the prior judgment and the party against whom the judgment is being asserted were parties to the original judgment or in privity with those parties.
Goodson, at 202. (Emphasis added.)
As pointed out in Appellant’s Memorandum Contra Defendant’s Motion to Dismiss,1 p. 10, the Courts of Appeals have recognized a few additional categories to which relaxed mutuality may apply, but the instant case is not one of those. In fact, the instant case is fundamentally distinct from any of those categories: it is a lawsuit asking for a declaratory judgment regarding state statutory and constitutional law. In the exceptional categories, the determination really and necessarily precluded any other person from prevailing upon a similar lawsuit. However, in this sort of declaratory judgment case, any other person in the state of Ohio could pursue this exact lawsuit without the possibility of collateral estoppel being invoked. Only Neinast would be precluded from doing so. This is an extraordinary situation and there is no support for making it a new exception.
The Goodson court was concerned about finality. If the trial court’s judgment of collateral estoppel is upheld, then any other person in the state of Ohio with an interest in going barefoot in the Library could still file the exact same lawsuit and not worry about being collaterally estopped.2 That’s not finality at all. The Library will then have to go through all the effort and expense of defending this exact same lawsuit all over again. What does provide finality (or something very close to it) for these sorts of declaratory judgment cases is precedent, not collateral estoppel. Once a specific Appeals District has made its ruling on the merits, that provides the finality in that District. Collateral estoppel is the wrong (and ineffective) vehicle for finality in these sorts of cases. Dismissing the instant case by invoking collateral estoppel does not fit within a framework of sound public policy.
Neither the trial court nor Appellee has presented any indication that the application of collateral estoppel to this case fits within any framework of sound public policy. Appellee ignores the instruction from the Goodson court that the “burden of pleading and proving the identity of issues rests on” the Appellee. While the Appellee quotes the “full and fair” language from Goodson, it, along with the trial court, completely failed to address Neinast’s demonstration that the previous lawsuits were neither full nor fair. All Appellee does in its brief is quote from the Complaint in the instant case, and then claim that the previous lawsuits somehow addressed those requests for judgment. Let us re-examine3 those. In the Brief of Appellee, pp. 12-13:
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 is not correct. As pointed out by Neinast, and ignored by both the Appellee and the trial court, the Sixth Circuit Court of of Appeals was not “fair.” That Court made up evidence to support its conclusion that there were hazards to bare feet in the Columbus Metropolitan Library (“CML”).4 The Federal Courts also specifically refused to rule on whether the Library Board had the statutory authority to make a footwear rule. Then, in the follow-up state lawsuit, the courts there specifically did not look at that made-up evidence due to res judicata, and based its ruling on those supposed hazards specific to CML. In the instant case, we have the contrary evidence that the Fairfield County District Library contains none of the supposed hazards. On page 9 of the Brief of Appellee, the Library, while noting that “[t]he 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,” explicitly concedes that collateral estoppal applies to “a specific fact pattern.” The fact pattern for the Fairfield County District Library is completely different than the pattern for CML. CML supposedly had hazards—there is absolutely no evidence of any hazards in the Fairfield County District Library. How can collateral estoppel with relaxed mutuality apply with a different fact pattern? Furthermore, even if the footwear rule was “proper” for CML due to the supposed hazards present there, how could it possibly be proper when Fairfield County District Library has no such hazards? The Brief of Appellee continues:
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.
No. This is completely wrong. It does not take even a casual reading of the opinions in the previous lawsuits to see that, while Neinast did ask for a ruling on this issue with respect to both the U. S. and Ohio Constitutions in the Federal lawsuit, the Federal Courts specifically stated that they were not addressing any state issue. Then, in the State lawsuit, the Courts there specifically stated that they were not addressing the personal liberty issue.5 This issue has never been addressed—how could it therefore have a “full and fair” hearing?
The proof regarding relaxed mutuality collateral estoppel is in the pudding. This Court has before it all of the evidence related to Neinast’s Motion for Summary Judgment. That includes the fact that the Library intially upheld its rule for the reason of “decorum.” That includes the facts that the Library has no hazards related to bare feet, that the Library has insurance, that the Library is statutorily immune, and that therefore a footwear rule does not protect them from tort liability. That includes the fact that high heels and all sorts of other footwear really do present a possible hazard to the users of the Library,6 so that singling out bare feet really is arbitrary and capricious. That includes knowledge of Curran v. City of Youngstown, Case No. 186118 (Mahoning County Court of Common Pleas, Apr. 21, 1969), in which another Ohio court found that a barefoot rule really did violate personal liberty. That includes knowledge that the proper use of the police power does not include protecting people from themselves.
If this case had been decided on the merits and on the actual evidence instead of on collateral estoppel, it is hard to see how any court could come to any conclusion but that the footwear rule served no useful purpose to the Library and simultaneously violated Neinast’s personal liberty.7 How could any rule be “proper” under those circumstances? That alone shows that the previous hearings on this issue could not possibly have been “full and fair.”
2. The Motion to Dismiss
Appellee is confused about its Motion to Dismiss. Appellee thinks its motion was a Civ.R. 12(B)(6) motion that was properly converted to a Motion for Summary Judgment. This is incorrect. In order for a motion to be a Civ.R. 12(B)(6) motion it must have been filed in lieu of (or at least before) an Answer: “A motion making any of these defenses shall be made before pleading if a further pleading is permitted.” Civ. R. 12(B). (Emphasis added.) Appellee's Motion to Dismiss was filed after Appellee’s Answer, so that motion cannot be a 12(B)(6) motion.
One of Abraham Lincoln favorite jokes comes to mind:
Q: If you call a tail a leg, how many legs does a sheep have?
A: Five.
Q: Wrong, four. Calling a tail a leg does not make it a leg.Calling Appellee’s motion a 12(B)(6) motion does not make it a 12(B)(6) motion. Belated motions to dismiss (that is, motions to dismiss made after the answer) are 12(C) motions instead. “A Civ.R. 12(C) motion for judgment on the pleadings has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted.” Whaley v. Franklin County Board of Commissioners (2001), 2001-Ohio-1287, 92 Ohio St.3d 574, 581. However, only genuine 12(B)(6) motions may be converted to motions for summary judgment under Civ.R. 12(B).
As pointed out in the Brief of Appellant, p. 11, the trial court had no authority to convert Appellee’s Motion to Dismiss into a Motion for Summary Judgment. “[T]he trial court improperly converted Appellee’s motion into a summary judgment motion as ‘[n]o mechanism exists under the civil rules to convert a Civ.R. 12(C) motion to one for summary judgment[.]” Business Data Systems, Inc. v. Figetakis (9th Dist. 2006), 2006-Ohio-1036, ¶17. See also Piersant v. Bryngelson (8th Dist. 1989), 61 Ohio App.3d 359, 363:
Further, this court can find no authority to support the beliefs of counsel that a motion made pursuant to Civ.R. 12(C) can be converted to a motion for summary judgment. This theory is mistaken.
The language of Civ.R. 12(C) does not provide for conversion. Cf. Civ.R. 12(B)(6).
Piersant is also cited with approval by the Court of Appeals of Fairfield County in Pollack v. Watts (Aug. 10, 1998), 5th Dist. No. 97CA0084. (Also see, from the record, “Motion for the Court to Amend its Entry of Dec. 9, 2009,” filed Dec. 14, 2009, and “Motion to Strike Defendant's Motion for Summary Judgment,” filed Jan. 14, 2010.)
If Appellee’s Motion for Summary Judgment is not a converted 12(B)(6) motion and is not a converted 12(C) motion, what is it? It is simply a Motion for Summary Judgment, filed after the deadline for dispositive motions, October 30, 2009. However, Civ.R. 6(B)(2) is quite clear that, “after the expiration of the specified period” during which an act can be done, the court “upon motion,” may “permit the act to be done where the failure to act was the result of excusable neglect.” See also Miller v. Lint (1980), 62 Ohio St.2d 209, 214. Appellee never filed any motion regarding excusable neglect that would allow the court to permit it to file its Motion for Summary Judgment. That motion was untimely filed without leave, and the trial court had no authority to accept it. It abused its authority to do so.
While the trial court had discretion to accept Appellee’s motion for summary judgment if it had been accompanied by the motion demonstrating some sort of excusable neglect, without that motion, the trial court had no discretion to accept the motion for summary judgment and should have struck it.
This issue should have been dispositive. Appellee’s collateral estoppel defense should have been struck, and only Appellant’s Motion for Summary Judgment considered.
Conclusion
For these reasons, the trial court should be ordered to strike the Library’s Motion for Summary Judgment, the trial court’s grant of the Library’s Motion for Summary Judgment should be reversed, and Neinast’s Motion for Summary Judgment should be granted.
The Court is also reminded8 that “[s]ummary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court.” Mason v. Guerard (Dist. 5, 2010), 2010-Ohio-1834, ¶12.
Respectfully submitted,
_______________________
Robert A. Neinast
Plaintiff, pro se
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@att.net
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Reply Brief was served, by hand delivery to his office, upon Mr. Roy E. Hart, Assistant Prosecuting Attorney, Attorney for Defendants, 201 South Broad Street — Suite 400, Lancaster, OH, 43130, this 20th day of May, 2010.
_______________________
Robert A. Neinast
Footnotes:
1. Fully incorporated into Appellant’s Memorandum Contra Defendant’s Motion for Summary Judgment. [Back]
2. Yes, there are others. See, e.g., Koss v. The Kroger Co. (Dist. 10, 2004), 2004-Ohio-3595. [Back]
3. Neinast demonstrated that those points were not addressed in his “Memorandum Contra Defendant’s Motion to Dismiss,” pp. 10-14, and in his Appellant Brief, in the summary on pp. 8-9, and on pp. 16-17. [Back]
4. It also completely ignored the fact presented to it that the Library was staturorily immune from tort litigation even while it ruled that the footwear rule would “avert[] tort claims.” How could that possibly be considered “fair”? [Back]
5. By focusing on the request for judgment, Paragraph B, Appellee omits Paragraph 18 of Neinast’s Complaint in this lawsuit: “The footwear rule violates Mr. Neinast's personal liberty guaranteed under the Ohio Constitution.” This makes it quite clear that Neinast wants the previously unaddressed Ohio Constitutional issue addressed. [Back]
6. See, e.g., Appendix E of Appellant’s Brief, and the studies in Neinast’s Affidavit attached to his Motion for Summary Judgment. [Back]
7. This assumes the court would be able to set aside its unconscious and unsupported bias against bare feet, something none of the other courts have been able to do. See “This is a Hard Case,” pp. 26-29, of Appellant’s Brief. [Back]
8. Since both Appellant and Appellee forgot to do so in their earlier briefs. [Back]